*2 DAVIS, Bеfore TOM G. DALLY and W. “3 DAVIS, C. JJ. the ele- fails to state “The indictment which would conduct alleged of the ments OPINION conspired allegedly constitute the offense Defendant, thus fails and by DAVIS, Judge. W. C. of the nature of apprise the Defendant appeal This is an from a conviction for Defendant which the to commit murder.1 and of the in participated to have jury Punishment was at assessed must (sic) she proof with which possible years seven Department in the Texas аgainst attempting to defend meet in Corrections. ” charge . . . said error, twenty-second In her ground indict- that now contends Appellant appellant contends that the trial court erred charge apprise her of ment failed to failing grant in her motion as to particularity against her with such prosecuted. indictment under which she was This defense. prepare her enable her to part appel- The indictment alleged in therefоre timely raised contention lant: protections constitutional the fundamental in- process “did then and there intent that a are and due adequate notice murder for remu- felony, volved. Haecker to wit: 571 S.W.2d State, neration promise of remunera- Drumm v. (Tex.Cr.App.1978); tion, fun- (Tex.Cr.App.1977). These be committed the said Judith Lind- exami- say require careful protections did then and there with Ken- damental 1. Sec. they if, “(a) (1) (2) duct overt act with intent he he or A оr one or that would constitute the agrees person V.T.C.A. Penal one or more of them in V.T.C.A. Penal Code pursuance with one or more commits criminal more of them that a Code engage be committed: providеs: provides: persons performs agreement.” in con- mits 02(a)(1) tion.” neration or the “(a) (3)the person employs A murder as defined under [******] person of this another or the commits an offense commits code and: to commit the murder remuneration if he com- for remu- 19.- for perspec- Similarly, Amaya nation and from the consideration (Tex.Cr.App.1977), prosecution tive of the accused. Haecker v. su- fraud, the information pra. welfarе “ inten- then and there defendant ‘did An allege indictment must facts suf tionally knowingly obtain means of *3 give ficient to public the accused notice of a assist- willfully the false statement’ particular offense entitled. The charged. with which he is ance to which she was not exception this Article filed an to Vernon’s defendant had Ann.C.C.P. As we information, not complaining that it did State, supra: stated Haecker v. precise give her sufficient notice is not say sufficient to that the ac- “[i]t setting the charge against by her not out cused knew with what offense he was which specific “willfully false statement” charged; rather, inquire we must as to have made. In defendant to the is whether the face of the instrument sets for the trial court’s reversing the conviction plain intelligible forth in language exception failure to sustain the defendant’s sufficient information to enable the ac- information, stated: to the we рrepare cused to his defense. Moore v. deficiency com- the believe “[w]e State, 532 (Tex.Cr.App.1976).” S.W.2d333 plained before us of in the information In her quash, appellant motion to subject by filed the exceptiоn was to the claimed that indictment give the did not her contends, and as appellant. appellant As sufficient notice of the conduct or acts re re- reflects, was appellant the record e., upon lied to i. constitute the quired to many statements to make constituting conduct felony Welfare; to which she she was Department of Public persons agreed. and the other named The to know entitled, exception, uрon proper felony offense intended to have been com or statements which false statement simply alleged “capital mitted was as mur upon for conviction.” rely State would der for promise remunerаtion and the enti- case, appellant In the instant allegation remuneration.” This contained know the tled, upon timely request, a put appellant no facts to of what on notice the basis of were specific acts which act or specific by upon conduct or acts her which conduct that “engage her rely the State would for In the conviction. We said offense.” calling face to the of a motion to this for “сapital murder allegation that the court, attention of the trial we hold that the promise of remunera- and the granting appellant’s trial court erred in not is not tion” was to have been committed request allegаtions for of her conduct which her of what apprise factually sufficient capital constituted the murder for remuner specific was to have been or her her role ation and the of remuneration to offense of the involvement in the by appellant. have been committed agreed with to which she for remuneration others to commit.2 State, (Tex.
In Haecker v.
573 MOTION FOR STATE’S act, no ON allegation I see overt REHEARING why an indictment reason substan- the new tive offense of under dissenting. DOUGLAS, Judge, penal code should be different than under Appellant was convicted penal former code. Under the former punish- commit murder1 code, penal held that it was un- this Court years. at seven ment, jury, assessed necessary allege the means which the aрpellant reads The indictment accomplished. was to be See intent that then and there “did Garza v. Tex.Cr.R. S.W.2d remu- murder for felony, to wit: (1932); Echols v. 133 Tex.Cr.R. neration (Tex.Cr.App.1937). Lind- committed, Judith tion, the said agree with Ken- and there say did then thе instant Although the indictment in Jewelle Beard neth G. *4 inartfully case is drawn a mod- and is not Lindsay, Judith the said Whittaker that alleges necessary el—it more than is —the and Davis, Beard Jewelle Kenneth G. appel- overruling court did not err in the thаt in conduct engage Larry Whittaker lant’s motion to the indictment. I said said offense Code, submit that under Y.T.C.A. Penal act overt Davis, an performed Kenneth G. 15.02,1 Sec. an indictment is sufficient wit: agreement, said pursuance in of that “Judith alleges pertinent part which a fire- Lindsay with by shooting Larry Lindsay, the intent did then and there with supplied) (Emphasis . arm. . remuneration, commit murder for re- submission, majority the original On Beard, with Kenneth G. Jewelle and the indict- because versed the сonviction Larry Whittaker, them, they, that or one of on notice appellant put ment failed to Larry Lindsay would shoot with a firearm formed acts or conduct which specific of the pursuant agreement, and to thаt Kenneth agreement. the basis of the Larry Davis Lindsay G. shot with a fire- (Tex. State, In Drumm v. allegation arm.” an Such contains all of con Cr.App.1978), Court reversed this offense; the constituent i. elements of the set notice was not because sufficient viction e., (1) person (2) felony with intent that a The defendant information. forth in the (3) agrees be committed with one or more driving while his license was convicted of persons (4) 6687b, they that or engage suspended one of them under Article Section was 6687b, 34, 24, V.A.C.S., and Article Section in conduct that would constitute the offense held be The indictment was V.A.C.S. (5) pursuance and an overt act in of specify because it did not insufficient agreemеnt performed by one or more of on necessary put the defendant facts them. of which of the five subsections notice of I dissent. 6687b, 24, supra, formed Article Section suspension. Before the court en banc. of the basis 1. V.T.C.A., if, they “(1) duct that if, overt act in “(a) they duct that would “(2) “(a) “(1) with intent that a with intent that a 15.02, A he he or one or more of them A he or one or more of them or one or more of them person person agrees agreеs Penal would constitute the V.T.C.A.Penal Code pursuance with one or more with one or commits criminal Code, commits criminal constitute the Section felony more 15.02,provides: engage be committed: engage be сommitted: offense; provides: persons persons performs agreement.” in con- in con- and V.T.C.A., overt act in mits murder as defined muneration or the tion.” “(2) “(a) 02(a)(1) “ * “(3) employs he or one or more of A [*] person Penal [*] person this anothеr to commit pursuance Code, commits an or the code commits Section and: of the under Section 19.- them offense if he com- murder the murder remuneration performs agreement.” provides: for re- an Similarly, V.T.C.A., present In the case a conspiracy to com- lists five means which mur- mit plus pursuant the overt act der can be indictment, committed. This alleged. The conspiracy however, specified which of the five subsec- allegation commit murder was sufficient tions of Section 19.03 formed the basis of statute, under the former and the addition charge. put She was on no- sufficient of the overt act made the indictment suffi- tice that she would have to defеnd herself present cient under the statutes. against charge murder for Further, interpretation a reasonable remuneration. the indictment is that for remuneration It should necessary specify not be the Kenneth G. Davis was hirеd to kill details of the greater intended offense with Lindsay attempted by shooting to do so particularity than was done the instant him with a firearm. case. See also the indictment in Brown v. be rehearing The should motion for 36, fn. 1 (Tex.Cr.Apр. granted of conviction 1979). In Garza v. 122 Tex.Cr.R. should be affirmed. (Tex.Cr.App.1932), in con struing (1925), Article V.A.P.C. we
held that means which the conspir DALLY, J., joins in this dissent. acy would accomplished need not be al leged. In Nisbet v. 170 Tex.Cr.R.
conspiracy need not
same particularity as an charg indictment
ing the commission of the intended offense. Nisbet,
In the defendant charged with money to steal proper- GONZALEZ, Appellant, Crispin ty Houston, from City conspir- with acy to steal money property from un- persons, known accept a Texas, Appellee. The STATE of bribe. The indictment was sufficient be- сause the single crime of ais No. 57225. separate offense, gravamen of which is agreement felony. to commit a It is Texas, Appeals Court of Criminal separate regardless offense of the number Panel No. 3. оf intended offenses. Sept. Here, Nisbet, as in sufficient facts have been agreement to constitute an
commit a felony. conspir A conviction for
acy will be proof sustained once
agreement and an overt act in furtherance have been introduced into V.T.C.A.,
evidence. point,
15.02. At that conspir the offense of
acy complete. is Smith v. 363 (Tex.Cr.App.1963); Witt v.
Tex.Cr.R.
1944). The holding of Carter
Tex.Cr.R.
(Tex.Cr.App.
1937), applicable. This indictment is suf put
ficient to Lindsay proper on notice of
the offense with which she is charged.