*1 deny applicant’s re “Accordingly, we plea. grant We to withdraw his quest MacDOUGALL, Appellant, of the trial court’s denial
review parte Hilli suppress. motion to See Ex ard, 687 S.W.2d The STATE applicant’s merits of
We treat suppression claim on basis appeal, original in his our Cause record Appeals of of Criminal 64,104.” 64,103 and Nos. reasons I dissent.
For several original First, assuming opinion finding appli
submission was correct made, involuntary were when pleas
cant’s (Tex.Cr. 688 S.W.2d
Morgan v. change
App.1985), does not serve pleas. If invol character of his
nature and involuntary. they still remain
untary
Second, facts of the matter the historical af- appeal the Court
are that on direct judi- incourt judgment since the
firmed the was sufficient
cial confession independently from the state- pleas officers, origi- and that on
ments made to it was proceeding in this
nal submission pleas were that the
judicially determined and, accordingly, applicant
involuntary Are the indictment. to answer
remanded voluntary saying plea
we now therefore,
and, may not be withdrawn? reviewing are we
Finally, on what basis suppression claim?
the merits of made a “condition- Hilliard. He
have seen whether the plea.” The issue there was Speedy Texas complied with the
State had Act, jurisdictional an issue more
Trial had not found it
nature. The Court con-
accordingly, vacated dis- prosecution and ordered the
viction Here, judgments are
missed. found void, it be only voidable—should admitting court erred
that the trial
statements, reme- “trial error” the for such applicant to simply remand
dy would be indict- the same custody to answer
local ment. Paso, appellant. El Robin of The misuse Again, protest I must Simmons, Carla Atty., Dist. W. Steve Aaron, 691 parte Ex Writ. See Great Paso, El Rob- Olivarez, Atty., Asst. Dist. J. and Ex Austin, Huttash, Atty., State’s ert (Tex.Cr. Collier, parte J., concurring). State. (Clinton, App.1981)
In applying the law to the facts the court charged: “Therefore, you beyond find a reason- OPINION ON APPELLANT’S MOTION able on or 27th day doubt that about the FOR REHEARING County, Texas, in El April Paso DAVIS, Judge. TOM G. defendant, unlawfully, did then there intention- and Appeal taken is from a conviction for ally knowingly appropriate, by or ac- property theft of of the of more value than quiring exercising and otherwise control $10,000.00. than $200.00 but less The case over, property other property than real affirmed Eleventh Court of (1) to-wit: one Oldsmobile automobile of unpublished opinion (MacD in an the value of more than but less $200.00 ougall NO. 11-84-00095-CR— $10,000.00 Pracht, than from Harold 6-7-84). without the effective consent own- Appellant contends Ap- that the Court of er, Pracht, Harold and with intent to peals upholding erred in deprive property, owner of the said said in request action his to define the you then find the term in “deception”1 its instruction charged.” refusing appellant’s petition After The evidence showed appellant had discretionary review, granted we worked for Pracht about three weeks in motion for in order examine April, 27th, appellant 1982. On had this issue. driven car to Pracht’s Five Points to some indictment in pertinent part apartments Pracht owned. Appellant re- appellant on or day about the 27th turned to house Pracht’s at 4:00 o’clock in April 1982 did then and unlawfully: ill, the afternoon. Pracht was and “al- “intentionally and knowingly appropri- overnight lowed him to take [the car] ate, by acquiring and otherwise exercis- he morning was to be the following back at over, ing control property other than real 8:00 o’clock.” Pracht testified (1) property, to-wit: one lant eight Oldsmobile auto- “said he would back at and I yes.” appellant mobile of value said than When not return more $200.00 $10,000.00, morning, but reported less than next Pracht from car HAROLD PRACHT, stolen. without the effective consent PRACHT, HAROLD July 14, On found in
with to deprive intent the said owner of Arizona, sleeping near ear. A said property.” police Phoenix officer arrested him. The him, officer “I testified told In the trial court defined “ef- boss; fight my had a he owed me fective consent” as follows: some money, so took the car and left.” “The term ‘effective consent’ includes person aby legally consent authorized Relying on Thomas v.
act for the owner.
is not
Consent
effec-
tive if
deception
peals
or coercion.”
‘decep-
reasoned that “Since the term
31.01(2)
conduct,
provides
1. V.T.C.A.Penal
that the actor
does
now
true;
part
as follows:
believe to be
"(2) ‘Deception’ means:
“(E)
performance
promising
likely
"(A) creating
confirming by
or
words or con-
judgment
affect the
of another
the transac-
impression
duct a false
likely
or fact
of law
that is
tion
the actor
intend to
and that
does not
judgment
to affect
another in the
perform
performed,
or knows will not be
ex-
transaction, and that the
does not be-
actor
cept
perform
promise
true;
lieve to be
"(B)
issue without other evidence
intent or
impression
failing to correct a false
knowledge
proof
is not
that the actor
likely
law or fact that is
of another in the
affect
sufficient
transaction,
perform
promise
did not intend to
or knew the
that the actor
performed."
created or confirmed words
would not be
indictment,
the evidence sufficient under the
defined
and found
need not be
tion’
definitions.
shown
the trial court’s refus- Penal Code
no error is
‘deception’ in
to define the term
argues that absence of the
The State
Thomas,
jury.”
did not
appropriate definition
quash
moved to
his indictment for theft
ant
by driving
the car
harm
allege
ground
that it failed to
which
*3
scope
appellant exceeded the
of
prov-
means of
type of “owner” and which
use the
effective consent to
the owner’s
consent the
ing Lack of effective
State
Therefore,
concludes,
the State
the
car.
rely
This Court held on
intended to
on.
prove
the
prosecution had no need to
that
there was no error in over-
was induced
owner’s effective consent
ruling
quash,
the motion to
deception.
giv-
seeking facts essential to
ant was not
The trial court’s instruction conditioned a
ing
The Court reasoned:
notice.
jury’s finding
verdict of
on
of-
Legislature
“The
has established
“by ac-
appellant appropriated the car
constituting
fenses and the elements
exercising control
quiring and otherwise
those offenses. The terms and elements
consent of
over” it without the effective
are further defined within the Penal
added).
(emphasis
The State’s
cited],
caselaw
the def-
Code. Under [the
the issue of
argument does not address
of the terms and elements are
initions
acquired the car from the
how
evidentiary
need
essentially
not be
effective con-
owner without
owner’s
alleged in the indictment.”
that he al-
when the owner testified
sent
appellant to take it.
has no bear-
lowed
We find the rule of Thomas
statutory
ing on the instant case. That a
prove
required to
The State was
pled
not
definition of an element need
appellant acquired the car without the own-
he is
give a defendant notice of what
Deception
consent.
er’s effective
has
charged
jury
with does not mean that a
to the
only theory available
State
determining
no need of the definition
The trial court
that con-
evidence.
proved
has
the element
whether
State
by decep-
is not effective
sent
beyond a reasonable doubt.
give any
court did not
of
tion. The trial
“deception” provided
of
the definitions
Appeals
held that “de-
The Court of
also
Having
Penal Code.
examined
King
v.
ception” is a “common word”.
record as a whole we conclude
105
some harm. See Almanza
lant has shown
not
held that the trial court need
this Court
S.W.2d
to the
define “common words”
King, supra,
of
Relying on
the Court
jury.
The
of the Court
the trial
Appeals again concluded that
is remanded to the
reversed and the cause
err in
to define “de-
court did not
for a
trial.
trial court
new
to the
Earlier
ception” in its
opinion,
ONION, P.J.,
in result.
concurs
claim that
peals responded
appellant’s
1,Judge, concurring.
TEAGUE
prove
insufficient to
“the
the evidence was
holds, but
opinion correctly
necessary
majority
elements of
wrong
for the
without the own-
finding
appropriation
of this
circumstances
Ap- unique facts and
The Court of
consent”.
er’s effective
case,
reversibly erred
trial court
against
theft
evidence
two
peals assessed the
instructing
jury on the
“deception”,
definitions
the Penal Code’s
nothing
absolutely
to do
represent-
opinion, had
of this
who
Hon. Robin
proceed-
any
appeal
that was involved
and in the
research
ed the
either
appellant’s petition
case,
drafting
ings
discretionary
pertain
preparation
of or the
this
review,
employed
is now
but who
opinion.
this
to the author
as research assistant
this Court
meanings
“Deception”,
clearly
of the word
was
unable to
V.T.C.A.,
correctly
vided
Penal
Section 31.-
apply the law the facts of this
01(2).
case,
concur
result that the
correctly judge
the merits of the
majority opinion reaches because I find
case; thus,
that, given the facts and circumstances of
denied the fair
trial
Constitutions
unique
such omission from the
guaranteed him. Cf. United States v. Sil
jury charge deprived
and de- verman,
(11th Cir.1984);
deprived or denied him of a fair impar- trial,
tial then such is violative of Tyler of law. Phelps,
F.2d A due
cess violation may even if occur the defend- object
ant failed to such commission or instance, however,
omission. In this timely properly object ALMANZAR, Appellant, Arturo complained omission the court’s but as pointed out The STATE of majority opinion, “Deception theory available to the State on the evi- dence,” i.e., because of the facts and cir- Court of Criminal case, “Deception” cumstances of the be- came an element of the offense for which course, was then trial. Of 29, 1986. making the determination whether the error of omission or denied the trial,
appellant of a fair “Not only must the whole,
charge be read as a but it must be scene
laid courtroom with all the
props and scenery existed.” Estelle, (5th F.2d 1004
Cir.1983). Given the facts and circum-
stances of this with such omission in