Lead Opinion
OPINION
In this appeal from a judgment of conviction for third degree felony theft, we need
In pertinent part, the indictment alleges that on a given date and with the required intent and culpable mental state appellant did “unlawfully appropriate such property,” namely “one camera” valued at more than two hundred but less than ten thousand dollars.
Appellant’s complaint raises, then, a matter of adequacy of the constitutional requisite of notice to an accused of the facts that constitute the legal charge against him, and we must consider the matter from his perspective. Article I, § 10, Constitution of the State of Texas; King v. State,
Sections 31.03 and 31.01, supra, in combination prescribe or permit conviction on “more than one set of circumstances,” Bras-fieid, at 295. That is, one may appropriate property by bringing about a transfer or purported transfer of title or other nonpos-sessory interest in it or by acquiring or otherwise exercising control over property other than real property.
Recently this Court again revisited “the issue of whether, upon timely specific request, this indictment was adequate to provide notice of the accusations against the accused,” Ferguson v. State,
“From these cases, it is clear that even though an act or omission by a defendant is statutorily defined, if that definition provides for more than one manner or means to commit that act or omission, then upon timely request, the State must allege the particular manner or means it seeks to establish.” Id., at 851.5
Application of the Ferguson rule to the case at bar indicates that the trial court erred in overruling appellant’s motion to
Though some operative terms were changed by the Legislature in 1975,
The property alleged to have been stolen by appellant is “one camera” worth more than two hundred dollars. May such a camera be taken unlawfully through more than one manner or means prescribed in the definition of the operative term “appropriates?” The answer to that question may well depend on the nature and quality of the camera and, though we continue to restrict our testing of adequacy of notice from the face of the indictment, the point to be made derives from what the parties agree describes this particular camera. See Ferguson v. State, supra, at 851.
It is said to be a Hasselblad, 500 cm. camera, with 80 mm lens and film magazine, having a stated serial number. They characterize it as “expensive”—with accessories, its estimated value is “around $3,000.” While one need not be absolutely sure, legal notions of “transfer of title” (the shorthand rendition we have used) suggest that interests in such “goods” do not require possession to exist. See V.T.C.A. Business and Commerce Code, §§ 2.105(a)
Accordingly, we hold that in light of appellant’s timely motion to quash the indictment did not provide adequate notice of the charges against him. Ferguson v. State, supra; see Thomas v. State, supra, cf.
The judgment of conviction is reversed and the indictment is ordered dismissed.
Notes
. All emphasis is added by the writer of this opinion unless otherwise indicated.
. V.T.C.A. Penal Code, § 31.03(a) provides that one commits an offense if one “unlawfully appropriates property with intent to deprive the owner of property.” Section 31.01(5), id., defines “appropriate” to mean:
“(A) to bring about a transfer or purported transfer of title to or other nonpossessory interest in property, whether to the actor or another; or
(B) to acquire or otherwise exercise control over property other than real property.”
. By way of shorthand rendition, we shall call the first of several methods “transfer of title” and the second means “exercise of control.”
. Underscoring was supplied by the Court in Thomas.
. Addressing one facet of the State’s argument, the Court explained that if the indictment did not allege “each type of criminal conduct” proscribed by statutory definition, an accused “would be left to guess or assume that the State was going to prove one or all the types of conduct,” ibid. This is not adequate notice to an accused for, as Drumm v. State,
. The briefs before us were filed with the Clerk in January 1979. Though neither party had the benefit of Thomas and Ferguson, appellant anticipated such a rule by analogizing from Johnson v. State,
. The initial central provisions denounced conduct by which an accused “obtains” property unlawfully or “exercises control” over property, “other than real property,” and to “obtain” meant “to bring about a transfer or purported transfer of a nonpossessory interest in property.” See former §§ 31.03(a) and 31.01(5). Acts 1975, 64th Leg., ch. 342, p. 914, §§ 9 and 10 reduced the key words to “appropriates” and incorporated within its definition both “transfer of title” and “exercise of control,” see note 2 ante and accompanying text.
. “In fact, in the present case, two possible offenses may have been involved. The record indicates that there was an ‘offer to sell’ . .. [and] a distinct and different ‘constructive delivery’ may have been shown.”
. “ ‘Goods’ means all things (including specially manufactured goods) which are moveable at the time of identification to the contract for sale...”
. Subject to certain other provisions, “title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties.”
. “A person with voidable title has power to transfer a good title to a good faith purchaser for value.”
. Phelps was not entitled “to a more precise definition of the term ‘possession’ ” because the term “describes a relationship to property” rather than an act or omission of the accused. The Dallas Court of Appeals has found itself “unable to reconcile this case with the reasoning of Thomas v. State, supra, or the holding in Ferguson v. State, supra, and choose to follow the en banc decision in Ferguson.” Coleman v. State,
. In his twenty first ground of error appellant challenges sufficiency of the evidence to support the verdict of the jury, but his specific point is that the person alleged as “special owner” of the camera was not proved to be. He relies only on McGee v. State,
Lead Opinion
OPINION ON STATE’S MOTION FOR REHEARING
This is an appeal from a conviction for theft. On original submission the judgment was reversed because the trial court denied a motion to quash the indictment for failure to give adequate notice to appellant of the acts charged against him.
In its motion for rehearing the State asserts the indictment was sufficient to give appellant fair notice; the panel opinion cannot be reconciled with Phelps v. State, Tex.Cr.App.,
Phelps, supra, and Ferguson, supra, were decided in light of Thomas v. State, Tex.Cr. App.,
Phelps and Ferguson subsequently applied the “act or omission” test to determine whether motions to quash for insufficient notice should have been granted.
In Phelps it was held that the motion to quash for failure to specify the nature of the defendant’s alleged possession was properly denied because “possession” is neither an act nor an omission, and therefore denial of the motion did not deprive the defendant of notice of the acts charged against him. Phelps, supra, at footnote 1.
Ferguson, on the other hand, held it was error to deny a motion to quash that sought notice of the type of delivery alleged, because delivery is an act of the accused that may occur in several ways, and the accused is entitled to notice of the acts alleged against him.
The distinction between Phelps and Thomas on one hand and Ferguson on the other is a clear-cut line: a defendant is entitled to notice of acts or omissions he is alleged to have committed. The State argues the true test should be whether the defendant has “fair notice.” While we agree this is the ultimate test, we do not see how a defendant who has not received notice of the acts or omissions he is supposed to have committed can be said to have received fair notice of the charges against him. In other words, lack of notice of acts or omissions is by definition a denial of fair notice. In other areas of asserted denial of adequate notice, other factors must be ex
“Although challenge to an accusation for failure to give adequate notice on which to prepare a defense must be asserted in a timely fashion (American Plant Food [v. State, Tex.Cr.App.,], [508 S.W.2d 598 ]), when properly asserted with adequate statement of the manner in which notice is deficient, fundamental constitutional protections are invoked. 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, as contrasted to the measurement of its allegations against the statute that is the test for a claim that no offense is alleged.” Drumm v. State, Tex.Cr.App.,560 S.W.2d 944 , 946-947. (Footnote omitted.)
In this case the panel opinion properly held that appellant was entitled to his motion to quash because the indictment did not give fair notice of the conduct alleged against him. We reject the State’s contentions that Phelps and Thomas are in conflict with the holding in this case. In those cases the motions to quash did not assert insufficient notice of the alleged conduct and did not show notice to be otherwise deficient.
In its remaining argument the State submits a conflict exists with Hunter v. State, Tex.Cr.App.,
“The right to indictment by a grand jury before answering a felony charge and the right to notice ride in tandem. No one is answerable to a felony charge except on action by a grand jury making such an accusation1 —and it is from that accusation that notice must be had . .. [N]otice must come from the facts found and alleged by the grand jury in the indictment.” Brasfield v. State,600 S.W.2d 288 , 302.
The supposition that a multiplicity of variant theories will be alleged in an indictment returned after a motion to quash is granted will become a fact only in those cases where some evidence is presented to the grand jury supporting each of the “multiplicity of variant theories.” And in that rare case where there is such evidence, the accused is certainly entitled to notice of the State’s multiple theory of culpability.
The motion for rehearing is denied.
. Except upon waiver pursuant to Art. 1.141, V.A.C.C.P.
Concurrence Opinion
concurring.
In one sense the dispute between the parties is reminiscent of the conflicting views expressed in Thomas v. State,
Research reveals that the unique character of “possessory” offenses has always plagued and confounded the bench and bar, for it defies analysis by the general methodology of viewing the major components of offenses as “conduct” distinct from “intent.” Under the 1974 Penal Code, however, culpable “conduct” can be either an “omission” or an “act.”
But, as the words “actual care, custody, control or management,” indicate, the “voluntary act ” of “possession” necessarily presupposes that “the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.” V.T.C.A. Penal Code, § 6.01(b).
Contrastively here, theft by appropriating property is definitely conduct—an act that is a bodily movement and may include speech—and, like “delivery” in Ferguson v. State,
With these additional observations and comments I join in the opinion and judgment of the Court.
. V.T.C.A. Penal Code, § 1.07(8).
. V.T.C.A. Penal Code, § 1.07(1); and V.T.C.A. Penal Code, § 6.01(a).
. Id.
. Id.; V.T.C.A. Penal Code, § 6.01(b); and V.T. C.A. Penal Code, § 1.07(28). (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)
. Indeed, the dictionary definitions of “care,” “custody,” “control” and “management” all reflect that such are “states of being” which involve an awareness of the “state,” instead of identifiable “bodily movements.”
“Care” is defined as “a burdensome sense of responsibility;” “charge, supervision;” “a disquieted state of blended uncertainty, apprehension, and responsibility;” “watchful attention.”
“Control” means “to exercise restraining or directing infíuence over: regulate;” “to have power over: rule.”
“Custody” is “immediate charge and control exercised by a person or an authority;” “safekeeping.”
“Management” means “the act or art of managing: control, direction;” “the conducting or supervising of something.” Webster’s New Collegiate Dictionary (1977); Webster’s Seventh New Collegiate Dictionary (1969).
. Distinct, that is, from the required “culpable mental state” that the actor know the forbidden character of the object or substance which is in his custody. See n. 7, post.
. Of course, a culpable act must be coupled with a culpable mental state before an offense is committed. V.T.C.A. Penal Code, § 6.02(a). See § 6.03(a) and (b) for constitution of culpable mental states generally required for “possession” offenses, viz; “intentionally” and “knowingly.” See also n. 6, ante.
. A review of the ordinary meanings of “care,” “custody,” “control” and “management” reveal that the words are synonyms; Roget’s International Thesaurus 3rd ed. (1962); requiring the State to select in a charging instrument a nuance of one over the others would be a meaningless exercise, since they all describe a “state” or “condition of fact” rather than a “bodily movement.” See Draper v. State,