Jean Pierre, Inc. v. State

635 S.W.2d 548, 1982 Tex. Crim. App. LEXIS 981
CourtCourt of Criminal Appeals of Texas
DecidedJuly 14, 1982
DocketNo. 62839
StatusPublished
Cited by2 cases

This text of 635 S.W.2d 548 (Jean Pierre, Inc. v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jean Pierre, Inc. v. State, 635 S.W.2d 548, 1982 Tex. Crim. App. LEXIS 981 (Tex. 1982).

Opinion

OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of committing a misdemeanor deceptive business practice. The court found appellant, a business corporation engaged in the wholesale and retail baking trade, guilty and assessed a $500 fine.

Appellant in three grounds of error contends that: the trial court erred in denying the appellant’s motion to quash the information because it failed to give sufficient notice of precisely what appellant was charged, because it failed to provide appellant with enough information to prepare a defense, and because it failed to enable appellant to plead former jeopardy in a subsequent prosecution; the trial court erred in denying the appellant’s motion to suppress evidence obtained by an illegal search and seizure; and the evidence is insufficient to prove beyond a reasonable doubt that the appellant intentionally and knowingly sold adulterated bakery products and bakery products containing adulterated flour.

Appellant asserts that the language in the information by which he was charged was so vague, uncertain, and speculative that no accused could be expected to prepare a defense to it. The information reads as follows:

“Comes now the undersigned Assistant District Attorney of Harris County, Texas, in behalf of the State of Texas, and presents in and to the County Criminal Court at Law No. 4 of Harris County, Texas, that in Harris County, Texas, JEAN PIERRE, INC. hereafter styled the Defendant, heretofore on or about NOVEMBER 14,1978, did then and there unlawfully commit a deceptive business [550]*550practice, in that the Defendant, while engaged in the business of selling food, namely bakery products, and in the course of said business, did intentionally and knowingly sell bakery products containing flour which was adulterated in that said flour was held under conditions which were filthy, unsanitary, noxious, putrid and unhealthy, and where said flour may have been contaminated and may have been rendered injurious to health.
“It is further presented that in Harris County, Texas, JEANE PIERRE, INC., hereafter styled the Defendant, heretofore on or about NOVEMBER 14, 1978, did then and there unlawfully commit a deceptive business practice, in that the Defendant, while engaged in the business of selling food, namely, bakery products, and in the course of said business, did intentionally and knowingly sell bakery products which were adulterated in that said products were prepared under conditions which were filthy, unsanitary, noxious, putrid and unhealthy, and where said products may have become contaminated and may have been rendered injurious to health.”

Appellant complains specifically of (1) the use of the phrase “may have occurred”; (2) the definition of “adulterated”; and (3) the definition of the word “sell.”

The offense for which appellant was convicted is proscribed by V.T.C.A. Penal Code, Section 32.42, and the Food, Drug, and Cosmetic Act, Article 4476-5, V.A.C.S. Article 4476-5, Section 3, states:

“The following acts and the causing thereof, within the State of Texas, are hereby declared unlawful and prohibited: (a) The manufacture, sale or delivery, holding or offering for sale of any food, drug or cosmetic that is adulterated or misbranded; (b) the adulteration or mis-branding of any food, drug, device, or cosmetic; ...”

Section 10(a)(4) of the Act, supra, deems a food to be adulterated:

“If it has been produced, prepared, packed or held under unsanitary conditions, whereby it may have been rendered injurious to health; ...”

Appellant’s objection to the use of the phrase “may have become contaminated and may have been rendered injurious to health” in the information is without merit. The information does not charge the appellant with acts which “may have occurred” as appellant contends. The prohibited act is the subjection of the food to unsanitary conditions, not the actual contamination of the food. The language “may have become contaminated” describes the possible result of the criminal act and not the act itself. This wording of the information sufficiently informs an accused of the exact charges against him and enables him to prepare a defense.

Appellant contends that the information used definitions of “adulterated” and “sell” different from those set out in Penal Code Sections 32.42(a)(1) and (9) and that such use of definitions of words different from those definitions set out in the Penal Code fails to notify him of the charges against him because the charges are under a theory not authorized by law. We must disagree.

“Adulteration” under Penal Code, Section 32.42(b)(4), V.A.T.C., is defined in Subsection (a)(1) as “varying from the standard of composition or quality prescribed by law or set by established commercial use.” That the information was so written to include the standards set forth in the Texas Food, Drug and Cosmetic Act, supra, in Sections 10(a)(3) and (a)(4) renders the allegation more specific, not less. Appellant’s objection to the definition of “sell” in the information is also without merit. The information charged appellant did “sell bakery products which were adulterated.” “Sell” is defined in both the Penal Code, supra and the Texas Food, Drug and Cosmetic Act, supra, and need not be further alleged in the information. Further allegations as to the manner in which appellant did “sell” the adulterated product are merely eviden-tiary, and do not pose a conflict in statutory definitions. See American Plant Food v. State, 508 S.W.2d 598, 604 (Tex.Cr.App.1974). This ground of error is overruled.

[551]*551The appellant, Jean Pierre, Inc., is a wholesale and retail bakery. On November 14, 1978, Charles Palmer, an inspector for the Texas Department of Health, went to the premises of the company for the purpose of making a routine sanitation inspection. On arrival, Palmer was directed to the back room of the bakery where Francois Goodhuys, the proprietor of the bakery, was working. Palmer, who had made four previous inspections of the bakery and who was acquainted with Goodhuys, stated he was there to do an FDA inspection, to which Goodhuys replied, “Fine.” Palmer did not ask permission or present any authority to inspect. Their conversation was at all times friendly and businesslike. Good-huys did not object to the entry into the bakery or the subsequent gathering of samples and taking of photographs. In fact, he accompanied Mr. Palmer “on and off” during the inspection, which lasted approximately four hours, and the two talked over some of the alleged violations at that time. There is nothing in the record to suggest any coercion.

Prior to trial, appellant filed a Motion to Suppress, contending that the warrantless search violated appellant’s rights under the Fourth and Fourteenth Amendments to the United States Constitution and under Article I, Section 9 of the Texas Constitution. However, the record amply indicates that Mr. Goodhuys gave his consent to the search. A similar inspection was upheld in United States v. Hammond Milling Co., 413 F.3d 608 (5th Cir.1969), cert. denied 396 U.S. 1002, 90 S.Ct. 552, 24 L.Ed.2d 494 (1970).

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Bluebook (online)
635 S.W.2d 548, 1982 Tex. Crim. App. LEXIS 981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jean-pierre-inc-v-state-texcrimapp-1982.