Wood v. State, No. 67486
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
| Writing for the Court | TEAGUE; DALLY; ROBERTS |
| Citation | 632 S.W.2d 734 |
| Parties | Ronald Stephen WOOD, Appellant, v. The STATE of Texas, Appellee |
| Decision Date | 03 March 1982 |
| Docket Number | No. 67486,No. 1 |
Page 734
v.
The STATE of Texas, Appellee.
Page 735
Jerry D. Patchen, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., Molly Naylor and Paul Mewis, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before ROBERTS, DALLY and TEAGUE, JJ.
TEAGUE, Judge.
This is an appeal where appellant was convicted in the trial court of two counts of an indictment which charged him with receiving two separate items of stolen property. After conducting a pre-trial hearing on appellant's motion to suppress evidence, which the trial court denied, and pursuant to a plea bargain agreement between appellant and the prosecuting attorney, and after appellant entered pleas of guilty, 1 the trial court assessed appellant's punishment at 10 years in the penitentiary on each count, with the sentences to run concurrently. Appellant was sentenced, after waiving the time for filing of a motion for new trial, and gave notice of appeal on the same day.
Page 736
Appellant's first ground of error posits that the trial court erred in denying his pre-trial motion to quash the indictment. 2 The appellant's motion to quash asserted that the indictment inadequately described the corporeal personal property that was alleged to have been stolen. Appellant contends that such descriptive terms as "One truck tractor," (Count One), and "One automobile," (Count Two), do not comply with Art. 21.09, V.A.C.C.P., which provides:
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. If the property be real estate, its general locality in the county, and the name of the owner, occupant or claimant thereof, shall be a sufficient description of the same.
We find that Gaines v. State, 501 S.W.2d 315 (Tex.Cr.App.1973), is dispositive of appellant's complaint as to Count Two of the indictment. There, this Court held that even in the face of a motion to quash, the descriptive averment of "one automobile of the value of over $50.00" was sufficient to apprise that defendant of the nature of the charge against him. See also Ward v. State, 446 S.W.2d 304 (Tex.Cr.App.1969); Davis v. State, 130 Tex.Cr.R. 252, 93 S.W.2d 729 (1936); Snyder v. State, 118 Tex.Cr.R. 652, 39 S.W.2d 885 (1931).
As to appellant's complaints regarding the descriptive averment of "One truck tractor," (Count One), our research has not at this time revealed a "white horse case." However, a review of the cases, in conjunction with a personal property descriptive averment which is generic, reveals that a descriptive averment of personal property is adequate if it alleges (1) quantity; (2) the general type of property, as long as it is more specific than merely stating "property" or "merchandise;" (3) "ownership" of the property; and (4) if necessary, the jurisdictional value of the property. See also, Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1981), regarding the discussion therein of the terms "effective consent" and "owner."
We first review the cases concerning property descriptions, characterizing the sufficiency or insufficiency of the alleged description of the property by the following titles:
PROPERTY DESCRIPTION HELD SUFFICIENT NOTWITHSTANDING A
MOTION TO QUASH WAS FILED
See, "merchandise, exact name, number, and kind unknown," Gentry v. State, 608 S.W.2d 643 (Tex.Cr.App.1980); "seven rifles," Welch v. State, 543 S.W.2d 378 (Tex.Cr.App.1976); "two suits," Bruner v. State, 509 S.W.2d 620 (Tex.Cr.App.1974); "One oxygen container and the contents thereof, to wit: oxygen," Kirkland v. State, 489 S.W.2d 298 (Tex.Cr.App.1972); "one television
Page 737
set," Mays v. State, 428 S.W.2d 325 (Tex.Cr.App.1968); "one tire" and "one wheel," Hendley v. State, 313 S.W.2d 296 (Tex.Cr.App.1958); "one automobile tire," Young v. State, 139 Tex.Cr.R. 509, 141 S.W.2d 315 (1940); "pistol," Smith v. State, 131 Tex.Cr.R. 322, 98 S.W.2d 806 (1936); "one head of cattle," Stubblefield v. State, 131 Tex.Cr.R. 67, 95 S.W.2d 418 (1936); "one bale of seed cotton," Bell v. State, 84 Tex.Cr.R. 160, 205 S.W. 986 (1918); Tolbert v. State, 84 Tex.Cr.R. 159, 205 S.W. 987 (1918); "one suit of clothes," Baldwin v. State, 76 Tex.Cr.R. 499, 175 S.W. 701 (1915); "one lubricator, two oil cups, (etc.)," Schenk v. State, 76 Tex.Cr.R. 564, 174 S.W. 357 (1915); "$4 in money, 2 knives, & one ring," Campbell v. State, 61 Tex.Cr.R. 504, 135 S.W. 548 (1911); "one watch & one pocket knife," Grissom v. State, 40 Tex.Cr.R. 146, 49 S.W. 93 (1899); "on (sic) horse," Barner v. State, 20 S.W. 559 (Tex.Cr.App.1892); "one five dollar bill in money," Green v. State, 28 Tex.App. 493, 13 S.W. 784 (1890); and "money," Ellingsworth v. State, 487 S.W.2d 108 (Tex.Cr.App.1972); Byrd v. State, 456 S.W.2d 931 (Tex.Cr.App.1970).PROPERTY DESCRIPTION HELD SUFFICIENT-NO MOTION TO QUASH WAS FILED
See, "one ring," Cox v. State, 560 S.W.2d 675 (Tex.Cr.App.1978); "one pick-up truck," White v. State, 505 S.W.2d 258 (Tex.Cr.App.1974); "One purse," Ashford v. State, 502 S.W.2d 27 (Tex.Cr.App.1973); "one automobile," Ward v. State, 446 S.W.2d 304 (Tex.Cr.App.1969); "ten drill bits," Wilson v. State, 398 S.W.2d 291 (Tex.Cr.App.1965); "one hundred twenty-five pounds of grain," Guidry v. State, 172 Tex.Cr.R. 516, 360 S.W.2d 152 (1962); "one camera," Beland v. State, 160 Tex.Cr.R. 351, 271 S.W.2d 430 (1954); "an automobile," Hicks v. State, 128 Tex.Cr.R. 595, 83 S.W.2d 349 (1935); "one four-wheel trailer and about 1300 pounds of seed cotton," Houston v. State, 98 Tex.Cr.R. 280, 265 S.W. 585 (1924); "four cases of oil clothing, six cases of tobacco, (etc.)," Modica v. State, 94 Tex.Cr.R. 403, 251 S.W. 1049 (1923); "one watch, one pair of shoes, and one razor," Johnson v. State, 42 Tex.Cr.R. 103, 58 S.W. 69 (1900); "on (sic) cattle" (holding "cattle" alone would be sufficient), Matthews v. State, 39 Tex.Cr.R. 553, 47 S.W. 647 (1898); and "U. S. Currency," Roberts v. State, 172 Tex.Cr.R. 500, 360 S.W.2d 883 (1961); (Not sufficient) "one dollar in Mexican money" (distinguishing U. S. versus foreign money), Wade v. State, 35 Tex.Cr.R. 170, 32 S.W. 772 (1895).
PROPERTY DESCRIPTION HELD INSUFFICIENT AND SUBJECT TO MOTION TO QUASH
See, "barbed wire," Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976); "tires," Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971); "personal property," Howk v. State, 138 Tex.Cr. 275, 135 S.W.2d 719 (1940); "furniture and equipment," Luce v. State, 88 Tex.Cr.R. 46, 224 S.W. 1095 (1920); Rodgers v. State, 448 S.W.2d 465 (Tex.Cr.App.1969); "wall paneling" Rhodes v. State, 560 S.W.2d 665 (Tex.Cr.App.1978).
PROPERTY DESCRIPTION HELD INSUFFICIENT-NO MOTION TO QUASH
WAS FILED (FUNDAMENTAL ERROR)
See, "property," Harris v. State, 587 S.W.2d 429 (Tex.Cr.App.1979); "merchandise," Richard v. State, 563 S.W.2d 626 (Tex.Cr.App.1978) and Willis v. State, 544 S.W.2d 150 (Tex.Cr.App.1976); "corporeal personal property," Mankin v. State, 451 S.W.2d 236 (Tex.Cr.App.1970); "seed," Oakley v. State, 167 Tex.Cr.R. 630, 323 S.W.2d 43 (1959); "oil field equipment," Leos v. State, 155 Tex.Cr.R. 478, 236 S.W.2d 817 (1951); "certain lubricating oil," Scott v. State, 125 Tex.Cr.R. 396, 67 S.W.2d 1040 (1934).
After reading the above cases, we conclude that the descriptive averment, "one truck tractor," in conjunction with the allegations found in the indictment regarding ownership and jurisdictional value, is sufficient to describe the stolen property allegedly received by appellant, notwithstanding appellant's motion to quash the indictment.
Page 738
We further observe that though Count One of the indictment merely alleged "one truck tractor" and Count Two merely alleged "one automobile" appellant acknowledged in his pleading, entitled "Supplemental Motion to Suppress Search of Residence," that the "truck tractor" was of the International kind, "International tractor trailor," and that the "automobile" was a "1978 Oldsmobile."
In appellant's "Stipulation of Evidence," we also find the following:
I stipulate that the references to the "brown car" or "brown oldsmobile" are the same car owned by Vallie Haywood, and the references to "Tractor-trailor rig" is the same rig owned by John Washington.
Although the record does not reflect whether or not appellant or his counsel was given the opportunity to see the offense report prior to the filing of his motion to quash, we do observe that it was admitted in evidence during the plea proceedings. The offense report reflects in part the following:
The second vehicle was a 1977 International Truck-Tractor, VIN E2327GGA24990, reported stolen to HPD on 5-31-79, case # P38619, identified from secondasy (sic) information.
The third vehicle was a 1978 Oldsmobile, VIN 3R47F8R401558, reported stolen to HPD on 5-8-79, case # P18417. This vehicle was registered to the suspect using a salvage title and displayed a VIN plate which appeared to be a factory issue. The engine number and transmission number had both been removed, consequently, the vehicle was seized. The MVI certificate bore the correct VIN.
In light of this record, we cannot find any merit to appellant's main argument, as set out in his motion to quash, that "the Defendant does not have proper notice with which to prepare his defense." We find that both prior to and during trial he had more than sufficient notice with which to prepare his defense, if he had one. In fact, prior to entering his pleas, the record reflects the following:
(THE COURT): ... Now you have read the indictment, have you not?
THE DEFENDANT: Yes sir.
THE COURT: Are you satisfied you understand the substance of the indictment and what you are charged with in counts one and two of the indictment?
THE DEFENDANT: Yes sir.
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