Robert Alexander JOHNSON, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 51740.
Court of Criminal Appeals of Texas.
Feb. 23, 1977.
Rehearing Denied March 24, 1977.
547 S.W.2d 599
The judgment is reversed and the prosecution is ordered dismissed.
DOUGLAS, Judge, dissenting.
The majority orders the cause reversed and the prosecution of Herrin dismissed on the ground that the indictment is fundamentally defective. He waived a jury and entered a plea of guilty in May of 1975. He swore to the following stipulation of evidence:
“On January 1, 1975 in Harris County, Texas, I did then and there unlawfully exercise control over property, namely, money and one truck, of the value of over ten thousand dollars, with the intent to deprive the owner, J. W. Maxcey, of the property.”
The judge assessed his punishment at seven years. In his brief on appeal, he only contends that the evidence is insufficient to support the conviction. He knew what he was charged with and he has not to this day complained that the indictment is defective.
The indictment charged theft under the terms of
The opposite result from the intent of the Legislature in adopting the present Penal Code is being reached by the majority. Pleadings as construed by the majority under its present holdings have to be more detailed than they were before the adoption of the Code. One of the main arguments for its adoption was that the new Code would have more general provisions concerning theft or other wrongful taking of property and there would not be the minute differences between theft, theft by bailee, theft by false pretext and embezzlement under the former Code. Under the holdings of the majority the number of ways of committing theft have multiplied with geometric progression. Many of the cases that have been and will be reversed and the prosecutions ordered dismissed are those in which the defendant knew what he was charged with and did not even contend that the indictment was defective or that he did not have notice of the offense for which he was charged.
The Legislature might wish to consider appropriate changes in the Code of Criminal Procedure.
Carol S. Vance, Dist. Atty., William W. Burge, Don R. Strickland, Asst. Dist. Attys., Houston, Jim D. Vollers, State‘s Atty., David S. McAngus, Asst. State‘s Atty., Austin, for the State.
OPINION
ROBERTS, Judge.
This is an appeal from a conviction for felony theft under our new Penal Code. Punishment was assessed by the court at five years, probated.
Appellant‘s sole ground of error reads as follows:
“The Court erred in overruling Defendant‘s Exceptions to the Indictment in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States of America, Article I, Section 10, of the Constitution of Texas and Articles 1.05 and 21.11, Texas Code of Criminal Procedure, in that the allegations in the indictment failed to state the nature and cause of the accusation against Defendant; specifically, Defendant was unable to determine from the face of the indictment whether he would have to prepare his defense to exercising control over property without the owner‘s effective consent or the property was stolen and the Defendant exercised control over the property obtained by another knowing it was stolen.”
We agree. In Ex Parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976), opinion on rehearing, delivered November 10, 1976, we held that an indictment charging burglary with intent to commit theft must either allege such that the entry was “with intent to commit theft” or allege the constituent elements of theft. We further held that in order to allege theft under
The indictment in this case alleges that the defendant:
“did then and there unlawfully exercise control over property, namely, one stereo, one lawnmower, one kettle cooker, of the value of over two hundred dollars and under ten thousand dollars, with the intent to deprive the owner, Steven George, of the property.”
The indictment clearly fails to allege whether the appellant exercised control of the property without the owner‘s effective consent, as required by
The State argues that there are not two unlawful ways of committing theft under this indictment, but “approximately 112.” The State then directs us to the definitions in
As we noted in Baldwin v. State, 538 S.W.2d 109, 111 (Tex.Cr.App.1976):
“Ordinarily an indictment which charges an offense in the terms of the statute is sufficient.”
However, see also 1 Branch‘s Ann.P.C., 2d ed., Sec. 514, p. 496:
“It is not always sufficient to follow the language of the statute. There are cases that require greater particularity, either from the obvious intention of the Legislature or from the application of known principles of law. [omitting citations]”
We do not believe that Legislative intent or known principles of law require that an indictment or information go beyond the language of the theft statute, as the State contends.1 Cf. Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973) (case 1); Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975); Page v. State, 532 S.W.2d 341 (Tex.Cr.App. 1976). However, as we held in Cannon and Reynolds, the indictment must allege all of the elements of whatever method of theft the State seeks to prove.
For the reasons stated, the judgment is reversed, and the prosecution is ordered dismissed.
DOUGLAS, Judge, dissenting.
The indictment should be held sufficient for the reasons set forth in the dissenting opinions in Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976); Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977); Herrin v. State, 547 S.W.2d 598 (Tex.Cr.App., this day decided). See also the concurring opinion in Jones v. State, 545 S.W.2d 771 (Tex. Cr.App.1975, motion for rehearing, January 26, 1977).
ROBERTS
JUDGE