Rehearing
In our original opinion we held any error in overruling Porch’s First Amended Motion to Quash Indictment was waived by Porch’s failure to obtain а ruling on the motion by the district court. In his motion for rehearing Porch correctly points out that he did obtain a ruling on his motion and that ruling was filed in this Court through a supplemental transcript. We will address the merits of Porch’s point of error concerning the ovеrruling of his motion to quash and we will affirm the conviction.
The indictment, in alternative counts, charges Porch burglarized the homes of Paul Stephen Able and Alfred R. Rowe, III. The indictment charges Porch burglarized both homes by entering with the intent to commit theft and by entеring and committing theft. Tex.Pen.Code Ann. § 30.02(a)(1) and (3) (1974). Porch’s motion to quash requests the indictment be quashed because the indictment fails tо give notice of what property Porch allegedly stole when he burglarized these homes.
Our analysis of indictment-notice errors is controlled by Adams v. State,
“The important question is whether a defendant had notice adequate to prepare his defense. The first step in answering this question is to decide whеther the charging instrument failed to convey some requisite item of ‘notice.’ If sufficient notice is given, this ends our inquiry. If not, the next step is to decide whether, in the context of the case, this had an impact on the defendant’s ability to prepare а defense, and, finally, how great an impact.”
Id. at 903.
In answering the first question, Porch relies on the Court of Criminal Appeals’ holding that in prosecutions for burglary alleging attempted theft or theft, § 30.02(a)(3), the State must, upon timely filed written motion, provide a descriрtion of the property allegedly stolen or attempted to be stolen. DeVaughn v. State,
The record shows that Porch pleaded guilty generally to that part of the indictment charging the Rowe burglary. As stated above, the indiсtment charges Porch burglarized the Rowe home by entering with the intent to commit theft and by entering and committing theft. Because Porch pleaded guilty to entering the Rowe home with the intent to commit theft, he was not entitled to notice under DeVaughn and our inquiry under Adams is ended.
Assuming, however, that Porch was entitled to notice under DeVaughn, we must determine whether the deprivation of such notice hindered Porch’s ability to prepare a defense, and if so, to what extent. Porch has not attempted to show this Court how his ability to prepare a defense was affected by the State’s failure to describe the property allegedly stolen during thе Rowe burglary. Our ability to determine such impact is hampered by the fact that Porch pleaded guilty and did not defend on the merits. The record does reveal, however, that Porch’s chief “defenses” were a motion to dismiss for lack of a spеedy trial and a motion to suppress.
The motion to suppress focused on a credit card in the name of Alfred R. Rowe, III. It appears that Porch desired the credit card be suppressed so the State would not be able to corrоborate the testimony of the accomplice witness — Jill Morgan Ding-er. Porch was arrested in possession of other stоlen property, but we do not know whether this property was connected with the Rowe burglary. Porch’s motions for discovery and inspection of all tangible items seized from him at any time, and for identification and examination of seized evi
The judgment of conviction is affirmed.
Lead Opinion
Mark Hudson Porch appeals from a judgment of conviction for the offense of burglary of a habitation. Tex.Pen.Code Ann. § 30.02(a)(3) (1974). Pursuant to a plea bargain the district court assessed punishment at eighteen years confinement in the Texas Department of Correсtions. Porch appeals adverse rulings on three written motions. We will affirm the judgment.
Porch contends in his first point that the district court erred in overruling his Motion for Discharge for Failure to Afford a Speedy Trial.
Porch’s speedy-trial argument is solely based оn Tex.Code Cr.P.Ann. art. 32A.02 (Supp.1988) (the “Speedy Trial Act”). The Speedy Trial Act has been held unconstitutional and cannot providе a basis for any relief. Meshell v. State,
Porch contends in his second point that the district court erred in overruling his First Amended Motion to Suppress. We conclude if such error occurred it was harmless.
The motion to suppress attacks the legality of the arrest аnd search of Porch on April 30, 1986, by the San Antonio Police Department. During this search pawn tickets and a credit card in thе name of A. Richard Rowe, III, were found on Porch. It was the burglary of Mr. Rowe’s home for which Porch was convicted. Porch аpparently contends that if the pawn tickets and credit card are suppressed, his conviction must be reversed because there will be insufficient evidence to corroborate the only other evidence against him — the testimony оf his accomplice Jill Morgan Dinger. Tex.Code Cr.P.Ann. art. 38.14 (1979).
Porch was arrested and searched again on May 2, 1986, however. In thаt search another credit card bearing the name A. Richard Rowe, III, was found on Porch. The motion to suppress does not attack this second search. The possession of the second credit card sufficiently corroborates Morgan’s testimony to sustain Porch’s conviction. Williams v. State,
Porch contends in his third point that the trial court erred in overruling his First Amended Motion to Quash Indictment. This point of error is waived, however, because Porch did not obtain a ruling by the district court. Tex.R.App.P.Ann. 52(a) (Pamp.1988).
The judgment of conviction is affirmed.