Timms v. State
| Decision Date | 27 October 1976 |
| Docket Number | No. 53542,53542 |
| Citation | 542 S.W.2d 424 |
| Parties | Charles Stephen TIMMS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
This is an appeal from an order revoking probation wherein appellant stands convicted of criminal mischief, a third-degree felony. The punishment is imprisonment for four (4) years.
The record before us does not contain a transcription of the court reporter's notes. No brief was filed in the trial court in appellant's behalf pursuant to Art. 40.09, Sec. 9, Vernon's Ann.C.C.P. Nevertheless, we review the validity of the indictment as unassigned error in the interest of justice under Art. 40.09, Sec. 13, Vernon's Ann.C.C.P.
An indictment which fails to allege an offense was committed by the accused is insufficient to support a conviction. A conviction which is based on an indictment which fails to state an offense against the law is void. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).
The instant indictment, omitting the formal part, alleges that appellant, on or about November 28, 1974, 'did then and there intentionally and knowingly damage tangible property of Sue Payne, the owner, to-wit: an automobile and did thereby cause pecuniary loss in the amount of more than Two Hundred Dollars ($200.00) but less than Ten Thousand Dollars ($10,000) to the said Sue Payne. . . .'
The pertinent part of V.T.C.A., Penal Code, Sec. 28.03, which prohibits criminal mischief, provides:
'(a) A person commits an offense if, Without the effective consent of the owner:
(1) he intentionally or knowingly damages . . . tangible property of the owner; . . .
(b) An offense under this section is:
(4) a felony of the third degree if:
(A) the amount of pecuniary loss is $200 or more but less than $10,000; . . ..' (Emphasis supplied)
The practice commentary which follows Sec. 28.03, supra, states:
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