*1 610 permit
court to
amendment
motion
of the
so
to revoke
that it would
AILEY,
conform to the
Appellant,
Lonnie
State,
Franks v.
proof.
516
185
S.W.2d
v.
3;
(Tex.Cr.App.1974), footnote
v.
Cabrera
Texas, Appellee.
The STATE of
State,
(Tex.Cr.App.1973);
Appellant any has not made complaint or
showing pleadings that give the to failed fair notice of the probation
him violation of
alleged, nor any showing was there claim or he surprised prejudiced
that was or by the pleadings. No abuse is
State’s of discretion
shown.
Appellant asserts that the court its
abused discretion in wit permitting the testify Graham that
ness to the value of the truck
pickup was over The owner $200.00. property may testify
of as of to the value property though even he qualified
his is not expert the of property.
as an on value the Ray, Texas Evi
McCormick and Law of
dence, Jackson, (1956); 1422 Sec. Barstow v. (Tex.Civ.App.1968).
over, prove not necessary it is to the value probation a stolen item in a
of revocation of so long by as the the
proceeding item stolen
probationer had some v. value. Barnes
State,
Hilbish
Asst. the Opinion approved by Asst. Atty., McAngus, Court. David S. State’s Austin, Atty., for the State.
State’s OPINION ONION, Judge. Presiding a for appeal arises out of conviction This prostitution a under compelling person of V.T.C.A., age years. of See the seventeen Code, 43.05(a)(2). Appellant’s Penal § at by jury the punishment was assessed (15) years Department the of fifteen in $2,000.00. a fine of Corrections and at *2 611 fundamentally defective. Ex therefore the Appellant’s first contention is that Garcia, (Tex.Cr.App. 432 he was is 544 parte under which convicted S.W.2d statute State, (Tex. 698 uncertain, violating 1976); 534 vague process due Hazel v. S.W.2d and State, 523 Fourteenth to v. S.W.2d Cr.App.1976); law the Amendment Price of under State, Huggins Article v. (Tex.Cr.App.1975); the Constitution and United States 950 I, 19, (Tex.Cr.App.1976).2 of the State Constitution. 544 147 § S.W.2d filed to appellant Prior to trial a motion we observe further the Without comment on set the indictment the same aside allege by what to means fails indictment grounds it was overruled. and prostitution the al- compelled appellant the leged. constitutionality the We need not reach involved as
of the statute we determine stated, judgment is the For the reason is fundamentally that the indictment defec- remanded. reversed and the cause culpable a allege tive to mental for failure state. DOUGLAS, dissenting. Judge, Code, 43.05, V.T.C.A., as Penal reads § alleges appellant that The indictment follows: the person age a under of named caused an “(a) commits offense if he person A prostitution. mo- to commit No seventeen knowingly: ground on the quash to the indictment tion force, threat, “(1) by another or causes majority for the upon by the dismiss- relied prostitution; to commit or fraud The prosecution appel- was filed. al of the “(2) by any person means a causes charged and knew what he was with lant years pros- 17 to younger than commit that the indictment was complaint made no ” (Emphasis . . titution. . difficult to conceive how defective. It is added.)1 commit prosti- could someone to one cause State, (Tex. In v. Raven 533 773 S.W.2d V.T.C.A., knowing it. Penal tution without it Cr.App.1976), was noted that the ele Code, 43.05(a)(2),provides Section that one compelling prostitution ments of as defined a any person if means he causes guilty by is 43.05(a)(2) (1) (2) in are person said a § years to commit younger than seventeen (3) any (4) a knowingly by causes means prostitution. years (5) 17 person younger than to commit or to quash a to set aside Absent motion prostitution. indictment, prosecution the should not the parts, the formal Omitting the indictment dismissed. be the alleged appellant in the case “on instant A.D., day of February, or about the 20th 1975, presentment the this and before of ‘
indictment, county in the and afore- State C_L. said, and there cause did then
Y_, age person years under the of 17 a prostitution
to . . . .” commit requires culpable
The a statute mental Y.T.C.A., alleged proved.
state be and See Code,
Penal 6.02. The the indictment in § allege culpable
instant case fails to the “knowingly,”
mental state of an essential
element of the offense. The is indictment Ann.C.C.P., 21.03, Code, V.T.C.A., 43.01(2), Vernon’s also re- provides 2. Article §
1. Penal necessary proven quires everything to be “prostitution” the is offense defined in V.T. C.A., Code, in the indictment. 43.02. should be stated § Penal