Welch v. State

• Decision Date: 10 November 1976
• Docket Number: No. 52602,52602
• Parties: Lee William WELCH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 378

543 S.W.2d 378

Lee William WELCH, Appellant, v. The STATE of Texas, Appellee.

No. 52602.

Court of Criminal Appeals of Texas.

Nov. 10, 1976.

Rehearing Denied Dec. 8, 1976.

R. Paul Brauchle and Lawrence B. Mitchell, Dallas, for appellant.

Henry Wade, Dist. Atty. and W. T. Westmoreland, Jr., Les S. Eubanks, Jr., and Paul D. Macaluso, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for theft over $200.00. After the jury returned a verdict of guilty, punishment was assessed by the court at five years.

The indictment alleges the offense occurred on or about February 26, 1975, and the record reflects that the indictment was returned on July 21, 1975.

Appellant contends that the indictment is defective in that it insufficiently describes the property taken as 'seven rifles of the total value of at least $200.00 but less than $10000.00,' and that the court erred in overruling his motion to quash the indictment.

Article 21.09, V.A.C.C.P., as amended effective June 19, 1975, reads in pertinent part:

'If known, personal property alleged in an indictment shall be identified by name, kind, number, and ownership. When such is unknown, that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice. . . .'

Former Article 21.09, V.A.C.C.P., provided as follows:

'When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, if known shall be sufficient. . . .'

Since the amendment to Art. 21.09, supra, became effective June 19, 1975, and the indictment was returned June 21, 1975, the indictment was subject to the requirements of Art. 21.09, supra, as amended.

Appellant points to the fact that the guns had been in the possession of police for four months and that it was within the knowledge of the State that one of the guns was a '243 Remington bolt action rifle with a scope' and another was an '1892 Winchester.' It appears to be appellant's position that the State should have described the property accordingly in its pleading.

While Art. 21.09, supra, prior to amendment referred to a 'general description,' it specifically noted that property should be described by (1) name, (2) kind, (3) quality, (4) number, and (5) ownership. Article 21.09, supra, as amended, while omitting the words 'general description,' added no specific requirements in describing property. In fact, one of the specific requirements, 'quality,' was omitted. The amended statute did add when the specific requirements of description are unknown 'that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice.' The State suggests that the latter provision was occasioned by the consolidation of theft offenses in the penal code so as to accommodate the allegation of theft by worthless check in certain cases. An instance cited by the State is where an individual gives a worthless check at a supermarket for a number of grocery items. A general description of the articles taken would, in most such instances, be all that could be alleged. In such cases, it would be necessary for the State to allege groceries generally and that a better description is unknown, if, indeed, no further description was known. We find merit in the State's suggestion.

We conclude that Art. 21.09, supra, as amended, places no greater burden on the State to more specifically describe personal property alleged in an indictment than before.

In Mays v. State, Tex.Cr.App., 428 S.W.2d 325, and Kirkland v. State, Tex.Cr.App., 489 S.W.2d 298, it was held that the descriptions 'one television set' and 'one oxygen container and the contents thereof, to-wit; oxygen,' respectively, were sufficient where motions to quash were filed alleging that the property was not sufficiently described under former Art. 21.09, supra.

We cannot agree that it was incumbent upon the State to allege the brand name, date of manufacture, whether the rifle had a scope, or was automatic, pump or bolt action.

We find that the indictment sufficiently described the property alleged to have been taken and that the court was not in error in overruling appellant's motion to quash.

Appellant contends the evidence is insufficient to support the conviction.

Harold Harmon testified that he lived in a house in University Park he had purchased from appellant's father in March, 1974. The garage with the house had a number of cabinets where hunting and fishing gear were stored. The doors to the garage were closed and the cabinet in question was locked the night of February 24, 1975. Upon arriving home from work the next day, Harmon noticed the garage door was open and on investigation determined that a cabinet 'had the lock ripped off' and that eight guns had been taken.

Grady Newton, supervisor of criminal investigation at Southern Methodist University, testified that on March 4, 1975, he had an occasion to talk to appellant. At such time appellant was not under arrest and Newton knew nothing of the instant offense. Appellant told Newton that he had taken guns from a garage at a house in University Park where he had previously lived. Appellant took Newton to a Billy Morgan's house in order that the guns might be recovered from a garage where they had been stored. Prior to the arrival of appellant and Newton at the Morgan home, Officer Fletcher of the University Park police had gone to the Morgan home as the result of a tip from an informant. Fletcher, after receiving consent, searched the garage and recovered six guns. Appellant was not arrested until the following day, March 5, 1975. On this date, Officer Gatlin, at Fletcher's direction, went to an apartment on Blackwell Street and recovered a rifle from Oscar Gonzales, who testified at trial that appellant had left the gun with him. Harmon identified the guns recovered from Gonzales and the Morgan home as being those taken...