Davis v. State

721 S.W.2d 857, 1986 Tex. Crim. App. LEXIS 856

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appeal is taken from a conviction for theft over $10,000. Punishment was assessed at imprisonment for 10 years and a $10,000 fine. Appellant’s conviction was reversed and remanded by the Court of Appeals for the Third Supreme Judicial District. Davis v. State, 700 S.W.2d 678 (Tex.App.—Austin 1985).

The State in its petition for discretionary review raises three contentions regarding the Court of Appeals’ opinion. We specifically refuse the State’s petition for discretionary review on those three contentions. However, subsequent to the Court of Appeals’ opinion, this Court decided Adams v. State, 707 S.W.2d 900 (Tex.Cr.App.1986), wherein we held that, in deciding the adequacy of a charging instrument against a motion to quash, the first step is to determine whether the charging instrument failed to convey some requisite item of notice. If sufficient notice is not given, the next step is to decide whether, in the context of the case, the failure to give that notice had an impact on the defendant’s ability to prepare a defense and, finally, how great an impact it was. As noted, the Court of Appeals did not have the benefit of this decision.

Therefore, pursuant to the authority conferred on this Court by Tex.R.App.Pro. Rules 2(b) and 200(a), we refuse the State’s petition and grant discretionary review on our own motion. We remand the case to the Court of Appeals for the Third Supreme Judicial District for reconsideration in light of Adams v. State, supra. See Sanchez v. State, 628 S.W.2d 780 (Tex.Cr. App.1982); Froyd v. State, 633 S.W.2d 884 (Tex.Cr.App.1982).

This Court expresses no opinion with respect to the ultimate disposition of this contention but only finds that the Court of Appeals should reassess the motion to quash in light of Adams v. State, supra.

ONION, P.J., would grant the State’s Petition. McCORMICK, J., dissents to the remand and would grant the State’s petition. CAMPBELL, J., not participating.