Thomas v. State

• Decision Date: 17 December 1980
• Docket Number: No. 59974,No. 3,59974,3
• Citation: 621 S.W.2d 158
• Parties: Joseph THOMAS, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 158

621 S.W.2d 158

Joseph THOMAS, Appellant, v. The STATE of Texas, Appellee.

No. 59974.

Court of Criminal Appeals of Texas, Panel No. 3.

Dec. 17, 1980.

On Rehearing July 1, 1981.

Rehearing Denied Sept. 23, 1981.

Lawrence B. Mitchell, Dallas, for appellant.

Henry Wade, Dist. Atty., John Tatum, Todd Meier, L. S. Eubanks, Jr., and Karen Chilton Beverly, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before ROBERTS, ODOM and PHILLIPS, JJ.

OPINION

ODOM, Judge.

This is an appeal from a conviction for theft. Punishment, enhanced by allegation and proof of two prior convictions, was assessed at life.

In his fifth ground of error appellant contends it was error for the trial court to deny his motion to quash the indictment. The indictment alleged that appellant did:

"... knowingly and intentionally exercise control over property, other than real property, to-wit: four automobile hubcaps, of the value of at least $200.00 but less than $10,000, without the effective consent of Doyle W. Traylor, the owner thereof, and with intent to deprive the said owner of said property, ..."

In the second paragraph of his motion to quash appellant alleged:

"The indictment alleges that Doyle W. Traylor is the 'owner' of the property. Owner is a special legal term. Art. 1.07, Sec. 24 P.C. (sic). That statute gives several definitions of the term. The indictment is not sufficiently certain because it fails to allege the nature of the ownership."

At a hearing prior to trial the court denied this part of the motion to quash.

On appeal appellant argues that because there are several ways in which a person may be an owner, the indictment did not give him full and fair notice of the charges against him. He points to V.T.C.A., Penal Code Sec. 1.07(a)(24), which provides:

"(24) 'Owner' means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor."

The test for whether a charging instrument gives adequate notice in the face of a motion to quash was stated in Drumm v. State, Tex.Cr.App., 560 S.W.2d 944:

"Because of the fundamental notions of fairness that require adequate notice of the nature of the charges against the accused in our system of justice, a timely claim of inadequate notice requires careful consideration. This calls for examination of the criminal accusation from the perspective of the accused....

"The accused is not required to anticipate any and all variant facts the state might hypothetically seek to establish. When the defendant petitions for sufficient notice of the state's charge by motion to quash adequately setting out the manner in which notice is deficient, the presumption of innocence coupled with his right to notice requires that he be given such notice."

See also, Cruise v. State, Tex.Cr.App., 587 S.W.2d 403; Haecker v. State, Tex.Cr.App., 571 S.W.2d 920.

In this case appellant adequately set out the manner in which notice was deficient. Just as the information in Drumm, supra, was insufficient to withstand the motion to quash because it did not specify which of the statutory alternatives would be relied on by the State, so the indictment in this case failed to state which manner of ownership would be relied on by the prosecution. Appellant was entitled to notice of this, and it was error to deny his motion to quash. The conviction must be reversed and the indictment dismissed. Brasfield v. State, Tex.Cr.App., 600 S.W.2d 288, 298 (opinion on rehearing).

In his fourth ground of error appellant raises a similar contention based on his motion to quash for failure of the indictment to give him adequate notice on the matter of lack of effective consent. He there points to the expansive definition of effective consent in V.T.C.A., Penal Code Sec. 31.01(1), (2) and (4). For this additional reason the indictment should have been quashed. We note this additional ground so that any reindictment in this case may address both deficiencies in the notice.

Finally, we must address the ground of error challenging the sufficiency of the evidence to prove the value of the property as alleged. Traylor, the owner, testified he had purchased the stolen property two or three weeks prior to the offense, that he paid over $400 for the set of hubcaps, and that when returned to him by the police they were only slightly scratched. Cullins, who was in the business of wholesaling and retailing property like that stolen here, testified that the fair market value of a set such as stolen here, two to three weeks old and not damaged, would be about $400. Although he admitted that he could not state the value of a particular set without seeing it, his testimony of the value of a set meeting the stated description was sufficient to prove the value of Traylor's set. The ground of error is overruled.

For the reasons stated, the judgment is reversed and the indictment dismissed.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

McCORMICK, Judge.

On original submission this cause was reversed based on a motion to quash. Succinctly stated, the motion to quash directs itself to two statutory elements of theft, to wit: "owner" and "without effective consent." Appellant argued that, since the statutory definitions include various types of owners and several means of proving lack of effective consent, the indictments should be quashed. The panel agreed with appellant and found reversible error in the trial court's overruling the motion to quash. We now grant rehearing, and upon reconsideration, find the panel's holding erroneous.

I.

The general rule is that a motion to quash will be allowed if the facts sought are essential to giving notice. However, unless a fact is essential, the indictment need not plead evidence relied on by the State. Smith v. State, 502 S.W.2d 133 (Tex.Cr.App.1973); Cameron v. State, 401 S.W.2d 809 (Tex.Cr.App.1966). Moreover, when a term is defined in the statutes, it need not be further alleged in the indictment. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974); May v. State, 618 S.W.2d 333 (1981).

A.

In Phillips v. State, 597 S.W.2d 929 (Tex.Cr.App.1980), Presiding Judge Onion dealt with a contention almost identical to the one presented today. In that case, the defendant filed a motion to quash attacking the allegations "intent to violate and abuse * * * sexually." Although sexual abuse encompasses different acts, ¹ it was wisely held that no error occurred because "the information requested was essentially evidentiary, rather than being required for purposes of notice and plea in bar." Smith, Cameron, American Plant Food, and Phillips all implicitly stand for the same proposition. The Legislature has established offenses and the elements constituting those offenses. The terms and elements are further defined within the Penal Code. Under these cases, the definitions of the terms and elements are essentially evidentiary and need not be alleged in the indictment. This is, in effect, the general rule that, subject to rare exceptions, an indictment which tracks the words of the penal statute in question is legally sufficient. Phillips v. State, supra; May v. State, supra; Parr v. State, 575 S.W.2d 522 (Tex.Cr.App.1978). Thus, only "owner" need be alleged with no further elaboration.

"Effective consent", as illustrated under V.T.C.A. Penal Code, Section 31.01(4), is not subject to the motion to quash for the identical reason. It is purely evidentiary a matter of proof. ² The State need only allege no consent or no "effective consent."

B.

Additionally, under Article 21.11, V.A.C.C.P., an indictment is sufficient when it alleges the offense in ordinary and concise language with a degree of certainty as to give the defendant notice of the particular offense and to enable the pronouncement of the proper judgment. Nowhere is the State required to plead absolute factual allegations. See Article 21.04, V.A.C.C.P.

Of equal importance is Article 21.12, V.A.C.C.P., which states:

"When a statute defining any offense uses special or particular terms, indictment on it may use the general term which, in common language, embraces the special term. To charge an unlawful sale, it is necessary to name the purchaser."

The term "owner" is a general term. At trial, the evidence may reveal that the owner has a particular ownership title, possession, or greater right to possession. However, Article 21.12 only requires the general term "owner" and not the special type of owner.

C.

The cases cited by the panel decision are inappropriately applied to the case before us. The panel relies on Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977); Cruise v. State, 587 S.W.2d 403 (Tex.Cr.App.1979) and Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978). They are inapplicable because they do not involve motions to quash addressed to terms that are already defined in the penal statutes.

In Drumm, the State alleged that the defendant drove his vehicle while his license was suspended under Article 6687b, Section 24, V.A.C.S. The motion to quash inquired as to which of the subsections of Section 24 the State was referring. Section 24 provides for automatic suspension of the driver's license without notice upon final conviction for any one of several different offenses. Since the information failed to give him notice of which offense the suspension was predicated upon, the defendant was denied the opportunity to prepare a defense. The underlying offense is what makes the defendant's conduct criminal in nature. If the underlying offense is either void or not final, then the defendant's conduct is not an offense.

In Cruise, the defendant moved to quash an indictment for robbery by causing bodily injury pursuant to V.T.C.A. Penal Code, Section 29.02(a)(1). The motion was not directed at which type of bodily injury as defined...