State v. Horstman

829 S.W.2d 903, 1992 Tex. App. LEXIS 1050, 1992 WL 85184
CourtCourt of Appeals of Texas
DecidedApril 29, 1992
DocketNo. 2-91-141-CR
StatusPublished
Cited by3 cases

This text of 829 S.W.2d 903 (State v. Horstman) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Horstman, 829 S.W.2d 903, 1992 Tex. App. LEXIS 1050, 1992 WL 85184 (Tex. Ct. App. 1992).

Opinion

OPINION

DAY, Justice.

The State brought this appeal from the trial court’s dismissal of an indictment against Julie Lynne Horstman. See Tex.Code Crim.Proc.Ann. art. 44.01(a)(1) (Vernon Supp.1992). Horstman was charged with engaging in organized criminal activity pursuant to Tex. Penal Code Ann. § 71.-02(a)(3) (Vernon 1989). The indictment was returned on May 8, 1986. Horstman moved that the indictment be quashed for failure to set out all the essential elements of the offense, specifically, that it did not include an allegation of some overt act committed in furtherance of the combination, and that it failed to name the other members of the combination. The trial court dismissed the indictment on the grounds that the indictment failed to allege all the essential acts necessary to charge an offense, and that the indictment does not state facts sufficient to constitute an offense against the laws of the State of Texas. The State brings this appeal.

In its first point of error, the State complains that the trial court erred in dismissing the indictment on the basis that it failed to allege all the essential elements to constitute organized criminal activity.

When considering a motion to quash, it is insufficient to say the accused knew with what offense he was charged; rather, the question presented is whether the face of the indictment sets forth in plain and intelligible language sufficient information to enable the accused to prepare his defense. McManus v. State, 591 S.W.2d 505, 506 (Tex.Crim.App.1979); Haecker v. State, 571 S.W.2d 920, 921 (Tex.Crim.App. [Panel Op.] 1978). The motion to quash should be granted where the language in the charging instrument concerning the defendant’s conduct is so vague or indefinite as to deny the defendant effective notice of the acts he allegedly committed. Id. While all essential elements of an offense must be alleged in the indictment, an indictment drafted in the language of the statute creating and defining an offense is ordinarily sufficient. Beck v. State, 682 S.W.2d 550, 554 (Tex.Crim.App.1985). Although an indictment which tracks the language and terms of the statute is ordinarily sufficient, if the statutory language is not completely descriptive so [905]*905that particularity is required to afford the defendant notice as required, merely tracking the language of the statute may be insufficient. Terry v. State, 471 S.W.2d 848 (Tex.Crim.App.1971).

Usually, when the terms and elements in the indictment are statutorily defined, the definitions are essentially eviden-tiary and need not be alleged in the indictment. Thomas v. State, 621 S.W.2d 158 (Tex.Crim.App. [Panel Op.] 1980). Thus, unless a fact is essential for notice to the accused, the indictment need not plead the evidence relied upon by the State. Daniels v. State, 754 S.W.2d 214 (Tex.Crim.App.1988); Phillips v. State, 597 S.W.2d 929 (Tex.Crim.App.[Panel Op.] 1980).

In Clayton v. State, 652 S.W.2d 950, 955-56 (Tex.Crim.App.1983) (en banc), cert. denied, 464 U.S. 1046, 104 S.Ct. 719, 79 L.Ed.2d 181 (1984), the court stated that an indictment, which alleged that defendants and named others were members of a criminal combination, and which set out sixteen separate acts done in furtherance of the combination, was sufficient to allege the offense of “organized criminal activity” pursuant to Tex. Penal Code Ann. § 71.-02(a)(3).

The only mental element expressly provided by section 71.02 is “with the intent to establish, maintain, or participate in a combination or in the profits of a combination.” Tex. Penal Code Ann. § 71.-02(a) (Vernon 1989). It is clear that these intended results are not essential to the commission of the offense charged, for there is no required result element of the offense. If an indictment alleges each element of the offense charged in section 71.-02, it is sufficient to support convictions obtained thereon. Id.

In this case, the indictment is defective for two reasons: first, it fails to name any other members of the combination, and second, it fails to set forth at least one overt act committed by Horstman in furtherance of the combination.

In Abbett v. State, 694 S.W.2d 534, 540-41 (Tex.App.—Corpus Christi 1984, pet. dism’d), the court held that the failure of an indictment to include the defendant’s name in the list of persons alleged to have performed an overt act in furtherance of the combination, renders the indictment fundamentally defective.

Likewise, in Chambless v. State, 748 S.W.2d 251, 253 (Tex.App.—Tyler 1988, no pet.), the court held that an indictment which alleged that defendant and named others conspired to commit the offense of delivery of methamphetamine and which laid out several overt acts, but which failed to allege that the appellant performed some overt act, not in furtherance of the conspiracy, but in furtherance of the combination, renders the indictment fundamentally defective.

Although the State is correct in identifying Chambless and Abbett as “conspiracy to commit” cases, this is not sufficiently distinguishing. In both cases, the courts were speaking of the failure to commit an overt act in furtherance of the combination, not in furtherance of the underlying conspiracy. We recognize, as did the Court of Criminal Appeals in Clayton, 652 S.W.2d at 955 n. 2, the similarities between the organized crime statute and the general conspiracy statute. Just as an overt act is an element of the offense of conspiracy, it is an element of the offense of engaging in organized criminal activity. To commit the offense of engaging in organized criminal activity, the accused must perform some overt act in pursuance of that agreement. An indictment simply does not charge the offense of engaging in organized criminal activity unless (1) some overt act performed by the appellant and (2) two or more other members of the combination are named. These are essential elements of the offense which are missing in this case, rendering the indictment fundamentally defective. Abbett, 694 S.W.2d at 540-41. We follow the Abbett court in holding that an allegation that Horstman committed an overt act is an essential element of an offense under section 71.02 and that the omission of said allegation renders the indictment void. Point of error one is overruled. See also, M. McCormick & T. Black[906]

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Bluebook (online)
829 S.W.2d 903, 1992 Tex. App. LEXIS 1050, 1992 WL 85184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-horstman-texapp-1992.