*1 598
Oрinion approved by the Court.
DOUGLAS,Judge, dissenting.
The indictment should be held sufficient
dissenting
for the reasons set forth in the
Cannon,
parte
in Ex
opinions
546 S.W.2d
1976);
State,
(Tex.Cr.App.,
Reynolds
266
v.
(Tex.Cr.App., 1976);
547
590
Herrin
S.W.2d
State,
(Tex.Cr.Aрp.,
v.
OPINION
GREEN, Commissioner. apрellant was jury, before a In a trial HERRIN, Rudolph Appellant, Richard of the value propеrty of theft of convicted v. dollars, a third hundred than two of less Texas, Appellee. The STATE of pre- had been felony appellant since degree of grade times of a two viously convicted 52769. No. indictment. See charged in the theft as of Appeals Court Criminal of Texas. Code, 31.03(d)(4)(C). Penal Section V.T.C.A. years. was assessed at seven Punishment 23, Feb. 1977. Initially, we note that the indictment Rehearing 24, Denied March 1977. allege against fails to an offense the laws Texas, of of the State and hence is funda-
mentally defective and insufficient to in- jurisdiction the
voke of the triаl court. The indictment, charging in its paragraph, Houston, Lawrence, appel- for Paul R. alleges appellant County, that in Harris lant. Texas, 17, 1974, on or about October Vance, Atty. Clyde Cаrol S. Dist. F. and unlawfully “did then and there commit III, DeWitt, Houston, Atty., Asst. Dist. Jim styled an primary offense hereafter the Vоllers, Atty., D. State’s David McAn- S. offense in that he did exercise control gus, Austin, Atty., Asst. State’s for the propеrty, over namely, money, of the val- State. ue of under two hundred dollars with the OPINION owner, deprive intent to the Big City ROBERTS, Judge. property News of the . . . .” appeal This is an from a conviction for it allеge Because failed to that the exer- felony theft. Code, V.T.C.A. Penal Sec. cise of сontrol of the property was without 31.03. The court punishment assessed at the owner’s effective consent as required by seven years. Code, V.T.C.A. Penal 31.03, Section the in- defective, dictment was fundamentally and An examination of the record reveals insufficient to invoke the trial juris- court’s that the indictment fatally is defective. diction over this case. Consequently, this The alleges indictment that the defendant: Reynolds State, conviction is void. See v. “did then and there unlawfully exercise 547 (No. S.W.2d 590 51,286, 3, November control of property, namely, money and 1976; State’s motion for rеhearing denied truck, one of the value of over ten thou- 23, February 1977). dollars, sand with the intent deprive to owner, the J. Maxcey, W. of the proper- judgment The is reversed and the indict- ty.” ment is ordered dismissed.
599 wrongful taking of cerning v. theft or other Reynolds stated in For the reasons minute not be the (Tex.Cr.App.1977), 590 and there would State, property 547 S.W.2d bailee, rehearing, theft, by this indict theft day this on deсided between differences fundamentally also pretext is defective. See by ment falsе and embezzlement theft Cannon, (Tex.Cr. parte 546 Ex S.W.2d 266 the hold- former Under the Code. under App.1976), oрinion rehearing on delivered ways the of of majority number ings of the State, 1976, 10, and v. Johnson November committing multiplied geo- with theft have (Tex.Cr.App.1977). 547 599 S.W.2d progression. Many of the cases that metriс be and the have been and will reversed prose- is reversed and the judgment The those in dismissed are ordered prosecutions is ordered dismissed. cution he was which the defendant knew what DOUGLAS, Judge, dissenting. charged with and not contend that did even or he did indictment was defective that the majоrity orders the cause reversed The of which he have notice the offense for not оn prosecution of Herrin dismissed and the charged. was is funda- that the indictment ground the jury and defeсtive. He waived a mentally might to consider Legislature wish The plea guilty May of in of 1975. He enterеd a changes in Criminal the Codeof appropriate following stipulation of evi- swore to the Procedure. dence: January 1, County, 1975in Harris
“On
Texas, I unlawfully did then and there namely, proрerty,
exercise control over truck,
money and one of the value of over dollars, thousand with the intent to
ten owner, Maxcey, the J. the
deprive W. of
property.” judgе punishment his at seven The assessed JOHNSON, Alexander Robert appeal, only In his brief on he con- years. Jr., Appellant, that the evidence is insufficient to tends v. support the conviction. knеw what he He Texas, Appellee. STATE of The charged day he was with and has not to this comрlained that the indictment is defective. No. 51740. charged The theft under the indictment Appeals of of Texas. Court Criminal Y.T.C.A., Code,
terms of Penal Section 31.- It should be held for the 03. sufficient 23, 1977. Feb. dissenting opinions set forth in the reasons 24, 1977. Rehearing Denied March Cannon, (Tex. 546 266 parte in Ex S.W.2d State, Reynolds and 547 Cr.App.1976), v. (Tex.Cr.App.1976). 590 also
S.W.2d See State, concurring opinion in Jones v.
the (Tex.Cr.App., for 771 Motion 545 S.W.2d 26,
Rehearing, 1977). January opposite the the
The result from intent of
Legislature adopting present in the Penal being by majority. the
Code is reached
Pleadings by majority as construed the un- holdings present have to be more
der its they adoption than were the
detailed before arguments of main
of the Code. One the new adoption
for its was that the Code general provisions have more con-
would