Swope v. State

• Decision Date: 13 February 1991
• Docket Number: No. 406-87,406-87
• Citation: 805 S.W.2d 442
• Parties: Shera SWOPE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 442

805 S.W.2d 442

Shera SWOPE, Appellant, v. The STATE of Texas, Appellee.

No. 406-87.

Court of Criminal Appeals of Texas En Banc.

Feb. 13, 1991.

Rehearing Overruled March 13, 1991.

David L. Botsford, Frank Maloney, Austin, for appellant.

Arthur C. Eads, Dist. Atty., and James T. Russell, Asst. Dist. Atty., Belton, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant Shera Swope was convicted by a jury of the offense of theft by deception. V.T.C.A.Penal Code, §§ 31.01 and 31.03. Punishment was assessed at twenty years imprisonment and a fine totaling $80,000. On appeal, the Third Court of Appeals affirmed the conviction with a minor reformation of the judgment. Swope v. State, 723 S.W.2d 216. (Tex.App.--Austin 1986).

We granted appellant's petition for discretionary review to consider "whether a defendant, who is indicted only as a party to the commission of an offense committed by another, is entitled to notice of the manner and means of the acts which he allegedly committed and which allegedly subject him to party responsibility." See Tex.R.App.Pro., Rule 200(c)(2). The problem presented here is rooted in decisions of the sharply divided Court in Romo v. State, 568 S.W.2d 298 (Tex.Cr.App.1977-1978), and Pitts v. State, 569 S.W.2d 898 (Tex.Cr.App.1978), and we are not asked to reexamine either in this cause. We will affirm the judgment of the court of appeals.

The offense was alleged in an eight count indictment which specifically alleged appellant's guilt under the law of parties as set out in V.T.C.A.Penal Code, § 7.02(a)(2). Each of the eight counts was essentially the same, except for the dates and amounts, and alleged as follows:

"LORENA LOVE WIDMER ... did then and there unlawfully acquire and exercise control over property, to-wit: money of the value of $35,000 DOLLARS from Eslar Rutherford without the effective consent of Eslar Rutherford, the owner thereof, and with the intent to deprive the said owner of said property by then and there creating and confirming by words and conduct a false impression of fact to Eslar Rutherford that was likely to affect and did affect the judgment of Eslar Rutherford in the transaction which the said Lorena Love Widmer did not believe to be true, to-wit: that she, the said Lorena Love Widmer, was an heir and beneficiary of an estate yet to be distributed and by promising performance to Eslar Rutherford that was likely to affect and did affect the judgment of Eslar Rutherford in the transaction which the said Lorena Love Widmer did not intend to perform and knew would not be performed, to-wit: that she, the said Lorena Love Widmer, would use the said money acquired from Eslar Rutherford to pay taxes and claims and legal fees associated with the said estate and that she, the said Lorena Love Widmer, would repay the said money acquired from Eslar Rutherford and Shera Swope, aka Edwina, aka Puff, hereinafter styled the defendant, acting with the intent to promote and assist the commission of the aforesaid offense, did then and there solicit, encourage, direct, aid and attempt to aid Lorena Love Widmer to commit the said offense...." [Emphasis supplied.]

Although the law is settled that "a party to an offense may be charged with the offense without alleging the facts which make the defendant a party to the offense and criminally responsible for the conduct of another," Pitts v. State, supra, at 900, this Court has never addressed the question of the specificity required in the face of a motion to quash an indictment which alleges only party liability.

Appellant argues that the Court of Appeals erred in upholding the district court's overruling of her motion to quash the indictment for allegedly failing to provide adequate notice of the offenses charged, what the State will rely on to convict, "exact facts the State will seek to establish," or "sufficient facts to notify Defendant" which of the five activities prohibited by § 7.02(a)(2), supra, she was accused of engaging in to make her responsible for the alleged offenses attributed to Lorena Love Widmer. Appellant acknowledges that under § 7.01(c), supra, a person may be indicted as a party without an allegation that the person acted as a principal or an accomplice, but argues that the state and federal constitutions nevertheless require adequate notice of the offense charged, and that such notice was not provided here even after it was specifically requested in the motion to quash.

The State argues, as the Court of Appeals held, that this case is controlled by Pitts, which held that "a party to an offense may be charged with the offense without alleging the facts which make the defendant a party to the offense and criminally responsible for the conduct of another." 569 S.W.2d at 900. We agree.

In Pitts, the defendant was indicted for attempted capital murder. The jury charge contained an instruction that authorized conviction on the theory of party liability. Upholding the validity of such a charge, based on § 7.01(c), supra, ^* the Court wrote:

"Sec. 7.01(c) now plainly requires that we hold a party to an offense may be charged with the offense without alleging the facts which make the defendant a party to the offense and criminally responsible for the conduct of another. If the evidence supports a charge on the law of parties, as it does here, the court may charge on the law of parties even though there is no such allegation in the indictment."

Pitts, 569 S.W.2d at 900. See also Crank v. State, 761 S.W.2d 328 (Tex.Cr.App.1988). The general rule is that a motion to quash an indictment will be granted if there have been omitted facts essential to giving notice, but the indictment need not plead evidence relied on by the State. Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1981) (Opinion on State's motion for rehearing). The clear implication of Pitts is that under § 7.02, supra, sufficient notice to prepare a defense is given to a party to an offense by allegations of the underlying offense itself, and the facts which make a person criminally responsible for the conduct of another are evidentiary and need not be pled.

If he is not entitled to any notice as to his criminal responsibility in the first place, Pitts, supra, it surely follows that he is not entitled to more notice than the pleader gratuitously gives. Having been fortuitously put on notice that his criminal responsibility is as a party, appellant will be provided further notice of manner and means through the evidence adduced, and may then demand that the trial court properly apply the law of parties to the facts thus presented. Romo v. State, supra. In that fashion appellant has been apprised of everything due process and due course of law mandate. See Sattiewhite v. State, 600 S.W.2d 277, at 285 (Tex.Cr.App.1980).

We hold that an accused specifically indicted as a party under § 7.02(a)(2), supra, is not entitled to further allegation of the manner and means whereby he is supposed to have solicited, encouraged, directed, aided or attempted to aid the primary actor in commission of the offense.

Accordingly, the judgment of the court of appeals is affirmed.

MALONEY, J., not participating.

MILLER, Judge, dissenting.

In affirming appellant's conviction, the court of appeals applied a line of cases beginning with Pitts v. State, 569 S.W.2d 898 (Tex.Cr.App.1978), and held that the information sought by appellant was evidentiary and not required for purposes of notice. Today, a majority of this court upholds that judgment solely on the one line of logic:

"If he is not entitled to any notice as to his criminal responsibility in the first place, Pitts, supra, it surely follows that he is not entitled to more notice than the pleader gratuitously gives." (Emphasis supplied; Opinion, page 445)

I do not agree that the majority's proposition so "surely follows". Thus I dissent.

In an eight count indictment, the State alleged in each count that on a certain specified date, Lorena Love Widmer committed the offense of theft by deception from Eslar Rutherford and that appellant,

"... acting with the intent to promote and assist the commission of the aforesaid offense, did then and there solicit, encourage, direct, aid and attempt to aid Lorena Love Widmer to commit the said offense." ¹

From the record, it appears that appellant was never indicted as a primary defendant.

In her motion to quash, appellant complained that the indictment failed to allege specific facts showing how she was a party to the underlying offense, and as such failed to provide her with adequate notice upon which to prepare her defense. Appellant does not complain that the indictment is defective on its face; rather, appellant criticizes the form of the allegations contained within the indictment.

The procedure for examining a complaint as to form was discussed at length in Adams v. State, 707 S.W.2d 900 (Tex.Cr.App.1986) wherein we stated:

... [W]hen a challenge to an accusation for failure to give adequate notice on which to prepare a defense is properly and timely asserted with adequate statement of the manner in which notice is deficient, "fundamental constitutional protections are invoked." Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977). Such a challenge "calls for examination of the criminal accusation from the perspective of the accused." Id. "When the defendant petitions for sufficient notice of the state's charge by motion to quash ..., the presumption of innocence coupled with his right to notice requires that he be given such notice." Id.

Adams, 707 S.W.2d at 901.

The specificity required in the face of a motion to quash an indictment which alleges only party liability for an offense does not appear to have been addressed directly by this Court. The court of appeals applied a body of caselaw which touches upon the issue indirectly, and although w...