Santana v. State

658 S.W.2d 612, 1983 Tex. Crim. App. LEXIS 1203

• Court: Court of Criminal Appeals of Texas
• Decided: October 19, 1983
• Docket: 63817
• Status: Published

Opinions

OPINION

W.C. DAVIS, Judge.

A jury convicted appellant of burglary of a building, V.T.C.A., Penal Code, § 30.-02(a)(1). The court assessed punishment at twelve years’ confinement.

Appellant contends that the court erred when it overruled his motion to quash the indictment. The indictment tracks the words of the statute and alleges that appellant burglarized “a portion of a building” in El Paso County. Appellant argues that this description is vague, indefinite and defective under Articles 21.09' and 21.02, § 7, V.A.C.C.P.¹

The general rule is that an indictment that tracks the words of a statute is legally sufficient. Marrs v. State, 647 S.W.2d 286 (Tex.Cr.App.1983); Parr v. State, 575 S.W.2d 522 (Tex.Cr.App.1979). V.T.C.A. Penal Code, § 30.02 provides in part:

“(a) A person commits an offense if, without the effective consent of the owner, he (1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; ...”

The present indictment tracks the statutory language and is sufficient unless the facts sought by a motion to quash are essential to giving notice. Thomas v. State, 621 S.W.2d 158, 161 (Tex.Cr.App.1981). Both “habitation” and “building” are defined in V.T.C.A. Penal Code, § 30.01. Definitions of terms are essentially eviden-tiary and need not be alleged by the State. They are matters of proof. “Habitation” is sufficient description. Marrs, supra, 647 S.W.2d at 289. “Habitation” having been found sufficient, “building” is a priori sufficient. We hold that an allegation of “a portion of a building” is likewise sufficient to provide appellant with notice of acts or omissions he is alleged to have committed. “Portion of a building” tells the accused both that the offense took place in a building and that the State contends that the part of the building involved, and not necessarily the whole building, was not then open to the public. The description is sufficient as against appellant’s motion to quash.

In addition, appellant alleges that the description is insufficient for failing to allege the city and the particular building in which the offense occurred.

In Nevarez v. State, 503 S.W.2d 767, 768-69 (Tex.Cr.App.1974), this Court stated:

“Murder, burglary and theft are examples of offenses which may be committed anywhere within the county and it is only necessary in such cases to allege that the offense occurred within the county.”

A timely motion to quash was properly overruled.

Hodge v. State, 527 S.W.2d 289 (Tex.Cr.App.1975), next established the three-step test that has become the “almost universal rule” applicable to claims of inadequate description involving location within the county where the offense occurred.

“It is only necessary to allege the name of the county as the place where an offense was committed, (1) if the offense may be committed anywhere within the county, (2) the place where committed is not an element of the offense, and (3) the court in which the offense is tried has countywide jurisdiction.” 527 S.W.2d at 292

The Hodge test applies to claims of defective description whether raised by overruling of motion to quash or by allegation of fundamental defect. Hodge, supra; Denison v. State, 651 S.W.2d 754 (Tex.Cr.App.1983); Pinkerton v. State, - S.W.2d -, No. 68,903 (delivered July 13, 1983).

The offense of burglary with which appellant was convicted may be committed anywhere within the county. The state district court in which the offense was tried has countywide jurisdiction. Finally, a specific location is not an element of § 30.-02(a)(1). Denison, supra; Pinkerton, supra. Appellant’s ground of error is overruled. To the extent that it is inconsistent with this opinion, Lane v. State, 621 S.W.2d 172 (Tex.Cr.App.1981) is overruled.

Appellant’s second ground of error alleges a violation of the Speedy Trial Act, Article 32A.02, V.A.C.C.P. Appellant argues that the State’s announcement of ready, filed with the District Clerk within 120 days of the commencement of the action, is insufficient for the purposes of Article 32A.02. Citing no authority for the proposition, appellant contends that the announcement of ready must be made in open court. The contention is without merit. The instant procedure is the same as that followed in Lopez v. State, 628 S.W.2d 82 (Tex.Cr.App.1982) and Fraire v. State, 588 S.W.2d 789 (Tex.Cr.App.1979). Appellant’s ground of error is overruled.

The judgment is affirmed.

ONION, P.J., and McCORMICK and CAMPBELL, JJ., concur in the result.

1 . Art. 21.09 provides in pertinent part, “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.