Thomas v. State

621 S.W.2d 158, 1981 Tex. Crim. App. LEXIS 1097

• Court: Court of Criminal Appeals of Texas
• Decided: July 1, 1981
• Docket: 59974
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for theft. Punishment, enhanced by allegation and proof of two prior convictions, was assessed at life.

In his fifth ground of error appellant contends it was error for the trial court to deny his motion to quash the indictment. The indictment alleged that appellant did:

“... knowingly and intentionally exercise control over property, other than real property, to-wit: four automobile hubcaps, of the value of at least $200.00 but less than $10,000, without the effective consent of Doyle W. Traylor, the owner thereof, and with intent to deprive the said owner of said property, ...”

In the second paragraph of his motion to quash appellant alleged:

“The indictment alleges that Doyle W. Traylor is the ‘owner’ of the property. Owner is a special legal term. Art. 1.07, Sec. 24 P.C. [sic]. That statute gives several definitions of the term. The indictment is not sufficiently certain because it fails to allege the nature of the ownership.”

At a hearing prior to trial the court denied this part of the motion to quash.

On appeal appellant argues that because there are several ways in which a person may be an owner, the indictment did not give him full and fair notice of the charges against him. He points to V.T.C.A., Penal Code Sec. 1.07(a)(24), which provides:

“(24) ‘Owner’ means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.”

The test for whether a charging instrument gives adequate notice in the face of a motion to quash was stated in Drumm v. State, Tex.Cr.App., 560 S.W.2d 944:

“Because of the fundamental notions of fairness that require adequate notice of the nature of the charges against the accused in our system of justice, a timely claim of inadequate notice requires careful consideration. This calls for examination of the criminal accusation from the perspective of the accused....

“The accused is not required to anticipate any and all variant facts the state might hypothetically seek to establish. When the defendant petitions for sufficient notice of the state’s charge by motion to quash adequately setting out the manner in which notice is deficient, the presumption of innocence coupled with his right to notice requires that he be given such notice.”

See also, Cruise v. State, Tex.Cr.App., 587 S.W.2d 403; Haecker v. State, Tex.Cr.App., 571 S.W.2d 920.

In this case appellant adequately set out the manner in which notice was deficient. Just as the information in Drumm, supra, was insufficient to withstand the motion to quash because it did not specify which of the statutory alternatives would be relied on by the State, so the indictment in this case failed to state which manner of ownership would be relied on by the prosecution. Appellant was entitled to notice of this, and it was error to deny his motion to quash. The conviction must be reversed and the indictment dismissed. Brasfield v. State, Tex.Cr.App., 600 S.W.2d 288, 298 (opinion on rehearing).

In his fourth ground of error appellant raises a similar contention based on his motion to quash for failure of the indictment to give him adequate notice on the matter of lack of effective consent. He there points to the expansive definition of effective consent in V.T.C.A., Penal Code Sec. 31.01(1), (2) and (4). For this additional reason the indictment should have been quashed. We note this additional ground so that any reindictment in this case may address both deficiencies in the notice.

Finally, we must address the ground of error challenging the sufficiency of the evidence to prove the value of the property as alleged. Traylor, the owner, testified he had purchased the stolen property two or three weeks prior to the offense, that he paid over $400 for the set of hubcaps, and that when returned to him by the police they were only slightly scratched. Cullins, who was in the business of wholesaling and retailing property like that stolen here, testified that the fair market value of a set such as stolen here, two to three weeks old and not damaged, would be about $400. Although he admitted that he could not state the value of a particular set without seeing it, his testimony of the value of a set meeting the stated description was sufficient to prove the value of Traylor’s set. The ground of error is overruled.

For the reasons stated, the judgment is reversed and the indictment dismissed.

Before the court en banc.