Green v. State

767 S.W.2d 919, 1989 Tex. App. LEXIS 1050, 1989 WL 40581
Court of Appeals of Texas·Decided March 22, 1989·No. No. 09 88 112 CR·Published·Cited by 4 cases

Opinions

OPINION

BURGESS, Justice.

A jury found appellant guilty of the offense of felony theft and assessed punishment at five years’ confinement in the Texas Department of Corrections and a fine of $5,000. Appellant brings this appeal from the judgment of the trial court.

By her points of error numbers four through six, appellant complains that the trial erred in overruling her motion to quash the indictment. The indictment upon which appellant was tried, alleged, in pertinent part, that she did,

pursuant to one scheme and continuing course of conduct, without the effective consent of the owner, Edna Jones, and with intent to deprive the owner of the property, intentionally appropriate, by acquiring and otherwise exercising control over, said property, namely, United States money....

(Emphasis added) Appellant filed a motion to quash the indictment on the ground that even though the indictment did specify which statutory definition of “appropriate” it would rely on, it failed to give sufficient notice of the particular offense with which she was charged. It is clear that appellant sought to have the state specify the manner and means by which appellant allegedly acquired or otherwise exercised control over the money.

The failure of a charging instrument to allege facts sufficient to give the accused notice of precisely what he is charged with is a ground for an exception to the form of that charging instrument. Adams v. State, 707 S.W.2d 900, 901 (Tex.Crim.App.1986). When a challenge to an accusation for failure to give adequate notice on which to prepare a defense is properly and timely asserted with adequate statement of the manner in which notice is deficient, fundamental constitutional protections are invoked. Adams, 707 S.W.2d at 901; Drumm v. State, 560 S.W.2d 944, 946 (Tex.Crim.App.1977). First, we must decide whether the indictment failed to convey some requisite item of notice. Adams, 707 S.W.2d at 903. If sufficient notice is given, that ends our inquiry. Id. If not, the next step is to decide whether, in the context of the case, this had an impact on the defendant’s ability to prepare a defense, and finally, how great an impact. Adams, 707 S.W.2d at 903.

In this case, appellant sought more specific notice of the nature of the accusation against her than was mandated by Gorman v. State, 634 S.W.2d 681 (Tex.Crim.App.1982). In Gorman, the court of criminal appeals held that an indictment which merely alleged that the defendant appropriated property without specifying which statutory definition of “appropriate” the state would rely upon, was subject to being quashed upon a proper and timely motion. Thus, Gorman does no more than establish an exception to the general rule that when the terms and elements in an indictment are statutorily defined, the definitions are evidentiary and need not be alleged. See Baldwin v. State, 538 S.W.2d 109, 112 (Tex.Crim.App.1976). Gorman established that a defendant was entitled to [921]*921have the charging instrument indicate whether the state intended to prove he appropriated property by bringing about a transfer or purported transfer of title under TEXPENAL CODE ANN. sec. 31.-01(5)(A) (Vernon Supp.1989) or by acquiring or otherwise exercising control over the property under TEX.PENAL CODE ANN. sec. 31.01(5)(B) (Vernon Supp. 1989) or both. The indictment in the present case clearly alleges appropriation by “acquiring and otherwise exercising control” over the property and is, therefore, in compliance with Gorman.

However, there are situations in which an accused is entitled to more detailed allegations in a charging instrument than are provided by the language of the statutes. Such is the case where the statutory language used in the indictment to describe an act of which the defendant is accused is not completely descriptive of the offense alleged. Cruise v. State, 587 S.W.2d 403 (Tex.Crim.App.1979); Haecker v. State, 571 S.W.2d 920 (Tex.Crim.App.1978).

As to whether our accused is entitled to have a theft indictment state the manner and means by which he allegedly “otherwise exercised control” over property, we have found only one case which has addressed the issue. See Garza v. State, 653 S.W.2d 850 (Tex.Civ.App.—Corpus Christi 1982, no pet.). In Garza, the court of appeals held that since the legislature did not provide any further definition of “exercise control,” the indictment need not be more specific as to how the defendant exercised control over the property in question. We decline to follow the reasoning in Garza because it seems to ignore the holdings in such cases as Cruise and Haecker.

In Cruise, the indictment charged the defendant with assault by “causing bodily injury” to the victim. TEX.CODE CRIM. PROC.ANN. art. 21.03 (Vernon 1966) requires that “[everything ... be stated in an indictment which is necessary to be proved.” Since the state could not hope to prove that the defendant caused bodily injury without adducing facts showing how he did so, the court of criminal appeals held that the trial court erred in refusing to order the state to disclose such facts upon a motion to quash on such grounds. Cruise, 587 S.W.2d at 404. Likewise, in the present case, the state could not have hoped to prove that appellant acquired or exercised control over the money without proving the means by which appellant did so.

Furthermore, it is difficult to imagine a less precise description of any act of any accused than to say that she “otherwise exercised control” over something. Since such language is not completely descriptive of the act for which appellant was charged, she was entitled to have the indictment allege the manner and means by which she allegedly exercised control over the money. See Haecker, 571 S.W.2d at 920.

Having concluded that the indictment failed to convey this requisite notice, we must now determine whether, in the context of this case, such failure had an impact upon appellant’s ability to prepare a defense. At trial, the state’s evidence showed that appellant acquired and exercised control over the money by depositing into her own savings account, five checks payable to appellant, drawn on a money-market account of Mrs. Jones. Appellant filed a motion in limine on the day trial began, which sought to prevent the state from attempting to introduce (1) any checks or copies of checks from the account of Edna M. Jones in Texas Banc Savings in Montgomery, Texas, (2) any checks or copies of checks from the account of appellant in First State Bank of Magnolia, and (3) any bank statements or copies of bank statements from either of the two accounts. Appellant presented no evidence at the trial on the merits. Furthermore, appellant did not argue that the state failed to prove she appropriated the money, but rather argued that there was insufficient evidence that Mrs. Jones did not give effective consent to such appropriation.

Appellant argues that she was entitled to notice that Mrs.

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Green v. State, 767 S.W.2d 919, 1989 Tex. App. LEXIS 1050, 1989 WL 40581 (Tex. Ct. App. 1989).

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