Lane v. State
621 S.W.2d 172
Tex. Crim. App.
1981
Check Treatment

*1 23, Sept. ODOM, Dissenting Opinion JJ. Before ROBERTS

OPINION ROBERTS, Judge. 28, morning hours October early

In the awakened Edward Hamilton flames smoke and discovered the odor of his house. area of arising garage from the revealed the incident investigation An Hamilton’s boat the fire started garage. adjacent to the parked which was following the fire indi- Evidence recovered ignited by the boat cated had told who appellant, flare. The road into a flare he had thrown friends that out the intending to burn Hamilton’s boat crimi- seats, offense of was indicted for the decision, recognize that Art. subject amending for and in- our 8. The indictments provin- panacea judge’s supra, very appropriate is not a a trial well formations light problems. Legislature for consider in cia! *2 173 $10,000. (Tex.Cr.App.1980); nal mischief The over indictment Swabado charged that the appellant did: S.W.2d and “knowingly intentionally damage and that inde appellant The contends * tangible destroy one property, namely: extrajudicial the pendent of his admission boat, one furnishings, house and without trial was insufficient evidence adduced at

the effective consent of Edward E. Ham- alleged was de prove that the owner; ilton, the the damage said signedly It is set on fire. well established amounting pecuniary destruction ato loss the prosecution that a for arson State $10,000.” of over fire was of an prove must that the involved incendiary extrajudicial an con origin, and appellant The was guilty the found fession alone is to establish this insufficient charged offense sentenced to thirteen ap the The requisite element of offense. years’ Depart- confinement the Texas governing these pellant asserts that “rules ment of Corrections. govern prosecu arson also criminal mischief By ground ap his first of error the damage when or was tions” the destruction pellant contends that the trial court erred by support fire. We find no for the caused when it overruled quash his motion to if appellant’s But even the in assertion. indictment. Specifically appellant as governed by was prosecution stant serts that description indictment’s arson,” “rules of we hold that the evidence damaged house was insufficient because verdict. support jury’s was sufficient to the State failed to allege the property’s composed A white residue of a mixture general county. location within the from the several chemicals was recovered V.A.C.C.P. the State to de Stone, originated. boat where the fire Dr. scribe real alleged estate indictment the Physical chief of Evidence Section at by identifying the occupant or Sciences, testified Institute Forensic claimant of the property and its that these were not consistent chemicals county. wood, See Green v. petro with the residue left burned 578 S.W.2d 411 (Tex.Cr.App.1979). In the fiberglass virtually leum or were identi but instant case the aby State failed to cal to the chemical residue left burned comply with the latter road Dr. further that requirement. flare. Stone testified This defect in the normally the chemicals he examined were the alleged real estate was found road and that he did not flares properly appellant’s raised motion any objects know of other or devices quash. In the face of motion in compounds. would same This contain these dictment was insufficient. Haworth evidence, appellant’s with the ex combined Tex.Cr. 168 S.W. 859 admission, trajudicial sufficient (motion quash have should been sus prove incendiary was of an the fire tained because indictment failed to describe origin. ground The of error is appellant’s alleged by showing estate in what overruled. part of property could judgment The the cause is is reversed and found). appellant’s ground of error is remanded. sustained. Before the court banc. en The appellant also contends that the evi- support dence was jury’s insufficient to FOR REHEARING STATE’S MOTION finding guilt. though Even we have WITHOUT WRITTEN OPINION found reversible trial we error must still McCORMICK, Judge, dissenting. challenge address this sufficiency to the ground the evidence a submission, because such would of this original panel a On uphold bar retrial. Rains v. found sufficient evidence to * said, you Willingham you Steven Did that he “A. I ‘How did do it? testified ‘Well, following goes, appellant conversation he threw with torch roof?’ And caught month after it the offense: into the boat ... and then a flare ” the house on fire.’ $10,000. impression real reason that the Court’s

conviction of criminal mischief over nite However, lay fact that the be- for reversal in the the conviction reversed to a panel prosecution deni- amounted cause the found the trial court’s matter was a quash controversy al error. over title to land of motion to reversible been in not have upon civil matter which should decision based *3 place. This V.A.C.C.P., the in the first requiring “general locality criminal court the Hodge 527 289 in v. S.W.2d Court county” description in the of real estate in recognized hold- also the (Tex.Cr.App.1975), quash. the face of a motion to Because of it and sum- ing what was in Haworth for holdings interpreting our previous as fol- marily its authoritativeness treated 21.09, supra, grant mo- would the State’s lows: judgment. rehearing tion for and affirm the was for tres- prosecution “... [T]he alleg- The indictment in the instant case from taking and sand and earth passing es: and which the title property for certain authority “In the by name and the The re- ownership dispute. Court Jurors, Texas, the State of the Grand it was that judgment the and said versed good County and men of the lawful civil to be decided the proper case a do present Dallas and State of ... at Hodge, 291-292. courts.” LANE, ... that one MICHAEL DEAN the Further, misconstrues the Court aforesaid, County ... the and State Green, appellant In the Green decision. unlawfully did then then and and there was funda- that the indictment contended there, knowingly intentionally dam- and because of mentally as to venue defective age tangible property, and name- destroy in the allegations inaccurate conflicting and boat, furnishings, ly: one one house and conten- addressing those In indictment. without the effective consent of Edward tions, correctly held this panel Court Hamilton, owner; damage E. the the said toas location allegation the that inaccurate amounting pecuniary and destruction to e., part of necessary surplusage, i. not $10,000.00. loss of over ...” Therefore, indictment the the indictment. Although clearly alleges the indictment is dicta in upheld. Although there to County, appellant quash Dallas moved Article 21.09 implying Green that indictment, asserting

the the indict- locality in the coun- pleading “general the “general to allege locality ment failed the modified in ty”, language should be such county” required as under Article previous decisions. accordance with 21.09, supra.1 court The trial overruled Article 21.09 reads: appeal, motion. found revers- panel On known, alleged in property ruling, citing personal ible “If error in trial court’s be identified State, 74 indictment shall Haworth v. Tex.Cr.R. 168 name, kind, number, ownership. and (1914), S.W. 859 and v. Green unknown, fact shall be is S.W.2d 411 When such classification, stated, de- general and a is mis- panel’s reliance on Haworth as scribing identifying and case, placed. moved In that the defendant be, If the may suffice. near as shall it to quash the indictment because failed estate, locali- general its be real allege supposedly which “common” he from name of the and the ty county, gravel. quash stole sand The motion to thereof, or claimant occupant proper was held because there were several a sufficient shall be county "commons” owned and that same.” vague indefinite to term was too description, “the However, is whether the give reading from a The issue notice. necessary county”, locality in the emerges the defi- opinion, entire there articles, wording (1911). concern- predecessors supra, of those 1. The are to Article description, identical. estate Texas Code of Criminal Procedure Article (1879), (1896), Article 446 and Article (5)causing pecuniary a house loss or substantial damaged describe in a criminal mischief case. the owner a third or inconvenience person. interpreting

In it is only allege held that necessary charged under subsection Appellant was name as where place require (a)(1). 28.03 does not Since committed, (1) an offense was if the offense or the offense particular location for place anywhere be committed within mischief, allegation of criminal (2) county, place where committed is county” in the “general offense, not an element of the Compare, necessary. is not destroyed house court in which the offense is has coun- tried (Tex.Cr.App. 513 S.W.2d 579 Shane ty-wide jurisdiction. Hodge supra; 667-19B(b), 1974) (allegation under Article accord, parte Hunter, Ex (1925), appellant must state that V.A.P.C. *4 special The need for a or immoral engaged in lewd conduct on “general locality” is not unless a required liquor licensee”); v. “premises of Nevarez factor, set Hodge, negat- as out in has been State, (al (Tex.Cr.App.1974) 503 S.W.2d ed.2 legation formal Penal under Code Section case, In the instant no ex- circumstances pistol (1925) allege possession must of requiring “general ist liquor licensee); of a see premises on the county” description. The offense of crimi- State, also, (Tex.Cr. Fox 561 S.W.2d 495 v. nal mischief can occur anywhere within the App.1978); Adams v. 524 S.W.2d county. The fact the offense (Tex.Cr. App.1975). require involve real does not county-wide trial court had Finally, the particular more pleading. Orato with jurisdiction. Appellant charged 514, (1960) 170 Tex.Cr.R. 342 S.W.2d 108 committing offense of criminal mischief (allegation of arson “building” of a of a $10,000 County. Dallas The offense over party subject certain named not ato motion 28.- degree felony. is a second Section quash); to Howard v. 03(b)(5), The case was supra. tried (Tex.Cr.App.1972) (burglary allegation of Criminal Court No. 4 of Dallas District entry of “house” not to to motion V.A.C.S., 199(162), County. Under quash). 4 has Dallas District No. Criminal Likewise, the offense of mischief criminal jurisdiction felony over eases co-extensive require particular does not place as an also, County. with of Dallas the limits See element of offense. of The elements 4.16, Articles 4.05 V.A.C.C.P. mischief, Code, criminal V.T.C.A. Penal Sec- in- is consistent with the This conclusion tion when, are found under subsec- 21.- tent of amendment to Article the 1975 (a)(1), tion actor: 09, only One need examine V.A.C.C.P.

(1) without the effective of the consent prepared by the Juris- Analysis Bill Senate Committee, on prudence Subcommittee (2) intentionally or knowingly, Matters, 122, Acts at the time S.B. (3) damages or destroys 909, 341, 2, Leg., p. ch. 64th Sec. (4) tangible property of the owner passed: or, (a)(2), under subsection the actor: Information “Background (1) without the effective consent Bar of Texas established State owner composed judges, prosecu- committee (2) intentionally or knowingly tors, attorneys to defense and criminal (3) with tampers identify problem areas in the Code tangible property and Penal Code Criminal Procedure exhaustive, Although Hodge supra. 2. not circum- some of the are set out in requiring particular pleading stances a more Therefore, Hodge and with sought to accordance draft solutions. committee to, identify problem request- only to areas rule that Ora need practitioners throughout committed criminal offense where the us. to before problems. upon State submit Based the case applicable to alleged is input, attempted mischief the committee criminal stated, the offense As represents draft solutions. This bill within anywhere be committed can changes in the Code of Criminal Proce- not an offense place county, the defense dure as “Section <<* part adopted by [*] [*] agreed [*] [*] of its lawyers, By legislative program. the State Bar of Texas Analysis: prosecutors, judges, criminal and has JJ., join element ONION, must, majority. county-wide therefore, this dissent. P. J., offense, and the jurisdiction. DALLY, dissent to the action W. C. trial DAVIS, court re- “Section Amends

lating descriptions in an designed provision

indictment. This problem

solve hot check in Texas.

The Penal with hot checks as Code deals

theft under which Section 31.03 alleged. that the stolen be Un- KELLY, Jr., Appellant, Arthur Lee cases, ‘groceries’ der some term old impos- been is held insufficient and it Texas, Appellee. The STATE keep adequate sible for rec- merchants beans, many ords as how etc. cans No. 60575. The amendment this section proposed Appeals of Court of Criminal problem.” seeks to solve this Panel No. Additionally, presented be- testimony 24, 1981. June fore the on Matters Subcommittee (which Bill 122 support pre- of Senate Legislative served at the Reference Texas

Library Capitol) at the State tracks almost

verbatim the stated in the Bill Anal- intent

ysis. seen,

As antic- problem can 567b,

ipated merging as a result of (1925),

Penal Code into theft under V.T. Code,

C.A. Penal where goods given exchange

check was for

rather than cash. The deletion to de-

phrase, necessary “when it becomes property”,

scribe does not demonstrate relating change

intent the former rules description in an indict- amended,

ment. As V.A.C.

C.P., applicable only when implies still it is deletion required; a

quoted phrase no more than a amounts to unnecessary verbiage. To hold

deletion

otherwise is to the intent thwart

Legislature.