Ex Parte Smith

645 S.W.2d 310, 1983 Tex. Crim. App. LEXIS 929

• Court: Court of Criminal Appeals of Texas
• Decided: February 9, 1983
• Docket: 69062
• Status: Published

Opinions

OPINION

CLINTON, Judge.

In this habeas corpus proceeding pursuant to Article 11.07, V.A.C.C.P., the Court will determine whether a charging instrument purporting to allege an offense of theft denounced by V.T.C.A. Penal Code, § 31.03(a) and (b)(1)¹ must allege, as well as a specific intent to deprive, a culpable mental state with respect to appropriating property without the owner’s consent.²

Germane to our inquiry, the indictment alleges that appellant did

“unlawfully appropriate property . .. with the intent to deprive the Complainant of the property, and without the effective consent of the Complainant.”

It tracks relevant statutory provisions and follows the teaching of Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977). That is, since an allegation of “unlawful” appropriation is but a conclusion, it is indispensable to the fundamental adequacy of such a pleading that it allege the appropriation was “without the owner’s effective consent.” Ex parte Payne, 618 S.W.2d 380, 382 (Tex.Cr.App.1981).

So far as can be ascertained, this Court has never addressed the question of whether in addition to “the forbidden conduct”³ there is also an element in the offense of theft under § 31.03(a) and (b)(1) of “the required culpability,” V.T.C.A. Penal Code, § 1.07(a)(13). However, when identifying elements of the offense of theft the Court has never suggested an independent culpable mental state is required by the statutory definition of theft. See, e.g., Ex parte Cannon, 546 S.W.2d 266, 273 (Tex.Cr.App.1976); Reynolds v. State, supra; Smith v. State, supra; Ex parte Payne, supra. By implication at least the Court has thus indicated that neither intentionally nor knowingly nor any other culpable mental state— as distinguished from specific intent to deprive of property — is a required element of the offense of theft defined by § 31.03(a) and (b)(1). Today we make explicit that which has heretofore been implicit in germane decisions.

One who acquires or otherwise exercises control over personal property of another with intent to deprive the owner of it has not yet committed theft. To constitute theft such conduct must be without the owner’s “effective consent” — a concept, we are told, was the “most farreaching change” made in the present penal code.⁴ Practice Commentary to § 31.03, supra. The concept is spelled out in § 31.01(4), delineating instances where though assent may have been given the circumstances prescribed render consent ineffective. See Broadnax v. State, 626 S.W.2d 548, 549 (Tex.App.—Texarkana 1981). Thus, the sine qua non of the offense of theft under § 31.03(a) and (b)(1) is lack of effective consent on the part of the owner.

In consolidating all prior offenses in the nature of theft, the Legislature did not prescribe a culpable mental state in its definition of the kind of theft proscribed by § 31.03(a) and (b)(1). On the other hand it did not plainly dispense with “any mental element,” V.T.C.A. Penal Code, § 6.02(b), for the definition requires a specific intent “to deprive the owner of property.” No doubt the Legislature was satisfied that its definition met the traditional mens rea requirement of the criminal law. When the Court addresses sufficiency of allegations of mens rea in an indictment, we generally insist that the legislative prescription of a culpable mental state be followed, but we reject a contention that culpable mental state “outside the penal statute” is additionally required. See, e.g., Ex parte Santellana, 606 S.W.2d 331 (Tex.Cr.App.1980); Kennedy v. State, 641 S.W.2d 912 (Tex.Cr.App., 1982). Accordingly, consistent with the definition of theft provided by the Legislature, we now hold that there is no required culpability in the offense of theft alleged herein beyond that of a specific intent to deprive the owner of property. See Rogers v. State, 598 S.W.2d 258, 262 (Tex.Cr.App.1980).

The habeas corpus relief is denied.

ONION, P.J., and ODOM, J., concur in result. MILLER, J., dissents.

1 . The statute prescribes that one kind of theft is committed when a person “unlawfully appropriates property with intent to deprive the owner of property,” adding that appropriation is “unlawful” if done “without the owner’s effective consent.” (All emphasis is added throughout by the writer of this opinion unless otherwise indicated.)

2 . The judgment of conviction was affirmed June 16, 1982 in an unpublished opinion by the Beaumont Court of Appeals in its Cause No. 09-81-110 CR. Applicant did not then challenge sufficiency of the evidence showing that he had stolen twenty six pieces of meat and several other items from a supermarket in Houston.

3 . One element of an offense is “the forbidden conduct,” V.T.C.A. Penal Code, § 1.07(a)(13). “Conduct” means “an act ... and its accompanying mental state,” id., % 1.07(a)(8). Here, as alleged, the act is appropriating property and its accompanying mental state is “intent to deprive the owner of property.” See Smith v. State, 571 S.W.2d 917 (Tex.Cr.App.1978).

4 .In the former penal code Article 1410 required as an essential element of the general offense of theft that taking of personal property of another be “without his consent.” Musick v. State, 121 Tex.Cr.R. 616, 51 S.W.2d 715, 716 (1932).