*1 after light of the fact that true he burglary the scene of
escaped from en- supposedly who not call the officer
did this he mention it to him nor did
trapped executed the war- when that officer
officer no Furthermore there was arrest.
rant of gave “entrapment” when he of this
mention the commission of confession to
a written crime. judge must be satisfied
The trial ap- of the evidence
preponderance the terms and conditions
pellant violated Scamardo probation.
his It was the
S.W.2d 293 not the members of judge,
trial
Court, testify heard the witnesses who and conduct while expressions
saw their simply I am
appearing as live witnesses. judge had ready to declare that trial in whether or not to believe
no discretion testimony appears a witness that him, who is whether it be
before of a crime
charged with the commission witness.
any other Bryan, appellant. for Caperton, Kent A. McDonald, Jr., Atty., Bryan, Dist.
T.W. for the State.
OPINION ROBERTS, Judge. MORGAN, Appellant, James L. This is an an order of the revoking appellant’s probation. court Texas, Appellee.
The STATE judge found that the trial No. 54482. probation, his had violated a condition of years and sentenced the to five Texas, Appeals of Court of Criminal Department the Texas of Corrections. En Banc. 22, 1975, appellant plead- On October 4, 1978. Oct. felony theft.1 ed to the offense of ten-year pro- was assessed a bationary term.2 outset, recognize fundamental At the 40.09(13), Vernon’s Ann.C. error. Article Omitting portions, the formal the in- C.P. 31.03, V.T.C.A., years years appel- to five when he Penal Code. revoked 1. Section 8(a), probation. Art. lant’s above, judge, reduced Vernon’s Ann.C.C.P. 2. The trial as mentioned appellant’s imprisonment from ten term of *2 334 “(2) appellant pleaded deprive to which the with intent to
dictment the owner appellant: property states that the of “(3) . . did then and there unlaw- proper- fully property, exercise control over other ty, property to wit: Whirl- than real One “(4) which property is stolen pool Dishwasher of the value of excess “(5) obtained another knowing property of said to be sto- $200 “(6) knowing it was stolen.” owner, deprive with to the len and intent Cannon, In Ex Parte we supra, also stat- Hurta, property Frank of said . . ed that: “An indictment for theft which does not Cannon, 266 In Ex Parte 546 S.W.2d allege all the of elements of one of these interpreted (Tex.Cr.App.1976), defective, fundamentally methods is since 31.03(a) (b), and and determined that the ‘Everything should be stated in an indict- comprised of theft is of four differ- offense ” necessary proved.’ ment which is to be possible sets of elements: ent (Emphasis original). “(1) person a Reynolds State, v. 590, See also 547 S.W.2d “(2) with intent to the owner (Tex.Cr.App.1977). 595 property of The indictment fails to set forth all of the “(3) property the obtains elements of one of the four methods. It “(4) owner’s effective con- without the satisfy does not the first and third methods sent; allege because it fails to that the of control was without the “(1) person a owner’s effective consent. Cf. v. “(2) with intent to the owner State, supra. It also fails satisfy the property of second method because of alleging instead “(3) property the obtains that the appellant obtained the “(4) property which is stolen alleged appellant that the exercised control “(5) property. from another over the stolen; “(6) it is knowing Moreover, the satisfy indictment fails to the second and fourth methods because it “(1) person does not state that the property is stolen property or that it was obtained or from “(2) with person.3 another property “(3) proper- over the exercises control Thus, it is clear that the indict property than real ty, other ment is fundamentally defective. Arti “(4) effective con- without the owner’s 27.08, Ann.C.C.P.; cle Vernon’s sent State, 508 (Tex.Cr.App.1974). 598 It S.W.2d is well “(1) established that where an indictment is fun- Cannon, 273-4, supra committing at we stat- either of the In Ex Parte methods of theft ed: under this subsection.” Thus, although present the indictment allege that the “Nor did the allege appellant case does that knew the was stolen or that stolen, allege was it fails to Moreover, was stolen. knew whom the allege did not either that the indictment Thus, property. that it was stolen if we even from another obtained willing allegation were to hold that an proper- or that he exercised control over the knowledge of the stolen also satisfies ty, than real requirement allegation of an theft other. These are essential elements of erty State, allege (b)(2), the indictment fails to see Pool v. 528 under subsection (Tex.Cr.App.1975), that obtained it from another 255 and are re- alleging person. quired alleged to be in an indictment
335
31.03,
violated;
tion
damentally
original
defective the
conviction
could be
I can-
they
rightly
on that indictment will be set aside in
that
were
based
decided
pro-
probation
an
from a
revocation
this indictment
Huggins v.
ceeding.
especially
light
plea unlawfully “(a) if, person commits an offense with or exercised control unlawfully, over it property: the owner of alleged by very definition of the statute (1) he obtains the property unlawfully; obtaining itself that or exercising of control was without the owner’s effective (2) he exercises control over the consent because it was unlawful. The fur- erty, unlaw- allegations ther detailed which this Courts fully. all, requires, if a defect at would be a going person defect to notice to the (b) charged Obtaining control over as to the manner in which the offense was property is unlawful if: subject committed and would be to an ex- (1) the actor obtains or exercises con- ception quash. or motion to trol the property over without the own- consent; er’s effective (2) the actor ob- tains it from another or exercises con- When we declare an indictment to be trol over the “fundamentally” defective should limit knowing it was stolen.” such a declaration to fundamental defects go and not defects which to notice. Obvi- reading very From a of this statute it is ously, in this case was aware clear that elements of the offense are charge given of the and was sufficient no- that a commits an offense if plead tice this indictment because he (1) with the intent to questioned sufficiency guilty and never thereof. unlawfully, or he obtains the property, unlawfully. real other than (b)
Subparagraph DOUGLAS, J., dissents. which
merely sets out the conditions under exercising of control over is unlawful. Ex
I that this Parte Can Court
non,
there are four different Sec-