*1 REYNOLDS, Kelly Appellant, Gene Texas, Appellee.
The STATE of 51286.
No. Appeals of Criminal of Texas.
Court
Nov. Rehearing Motionfor
On State’s 23, 1977.
Feb. March
Rehearing Denied McLean, Houston, appellant.
Ken for Vance, Atty., and James C. Carol S. Dist. Attys., Asst. Dist. Brough, Larry Meyer, E. Houston, Vollers, Atty., and Jim D. Atty., Aus- McAngus, Asst. S. David tin, for State.
KEITH, Commissioner. guilty of theft jury appellant found under money billfold and aof (1974). It as- 31.03(d)(4)(B) punishment at confinement his sessed years. ten period witness, George complaining cigar was at the that while he testified in downtown Walgreen Store counter his billfold removed appellant Houston was able but pocket his Scearce he before appellant’s hands it out of snatch ap- pursued leave the store. Scearce could two cadet and, help of pellant police training to become officers police Houston, captured the officers *2 591 1,1974, and there did then April or about from the rob- blocks the scene of several property, over exercise control unlawfully complaining positively witness bery. The money, with cash namely, one billfold and one extract- appellant as the who identified George the the intent the stu- pocket his billfold from his and ed Complain- the styled hereafter the policemen appellant identified as dent the Defendant and ant, property, of the on streets caught after a chase the they one the person the the stole Houston. of downtown Complainant.” error, appel ground In his first 31.03, Pe- is defined Theft is lant contends the indictment (1974): Code nal defective in that failed if, an offense “(a) A commits alleged ‘without the theft was prop- deprive the owner of ” consent.’ No erty: sufficiency the of the indict exception to unlawful- (1) the he obtains nor ment was filed was deficien ly; trial; in the motion for new cy mentioned control (2) exercises over he instead, ground urged for the first is un- other than appeal. upon time lawfully. challenge to The the indictment comes exercising Obtaining or “(b) for our consideration. American late is if: unlawful Corporation State, 508 v. Plant Food (1) or exercises con- the actor obtains Judge (Tex.Cr.App.1974), 604 S.W.2d property without the own- trol over the Odom, Court, for speaking held: sup- (emphasis consent.” er’s effective “Only if the defect be indictment] [in 1 plied) degree charge no offense of such as to is to noted It be law, void, thereby will against the be language embraced no which contained be con- the substance concept of of the owner’s effective lack under appeal sidered for the first time on conclusionary allega- although consent 27.08(1), supra Article [V.A.C.C.P.].” “unlawfully ex- is made that tion Thus, in reach com order to this Thus, the property.” ercise[d] in plaint, we must determine whether the presented: an squarely Does is question charged an offense under the stat dictment attempts to which indictment Plant say, ute. We we did in American when an offense it omits state State, supra, Corporation Food v. is possession was of the cognizable under Article Y.A.C. sues con- without the owner’s effective C.P., even raised may be considered when nega- our question We answer sent? Thus, time must appeal. the first on we be for the reasons now to stated. tive if the indictment contained all of determine governing question, rule before constituent elements offense code, adoption penal new defined the statute. State, 494 v. aptly stated Martinez part charging (Tex.Cr.App.1973): 183 S.W.2d reads: must pleading charging “A taking re- lack of Reynolds, hereinafter the owner’s consent
“Kelly Gene Defendant, 473 property. heretofore on Moore to as ferred (1) (after con- in 1975 it is owner’s effective amended without Section case), to read: date involved sent.” change statutory This not affect does “(a) un- commits an offense if he A reach case since the in this lawfully appropriates result with intent the owner’s effective consent” property. deprive the owner of “(b) present Appropriation if: in the amendment. unlawful 592 such cific intent the owner of (Tex.Cr.App.1971); Long v. supra, Musick v. was cited (Tex.Cr.App.1897) 39 S.W. Worthington, supra. 124 Tex.Cr.R.
see Kitchen (1931) Ann. and 5 Branch’s 21.03, V.A.C.C.P. By statute [Article P.C.2d ed. Sec. 2638.” (1966)], [e.g., decisional law Antwine v. (Tex.Cr.App. argues in Appellant legislative *3 1975)], in an “[Everything is clear since should be stated tention the statute now con requirement provides necessary a indictment which is to be tains same And, equal another rule of validi proved.” of “effective consent” in definition Section 31.01(4).2 Support thusly: “Ordinarily an in ty expressed of this contention is to is suggested language form in the of the stat be found of indict drawn dictment State, 499 ment such cases. Morrison & Black is sufficient.” Ames v. See ute well, 110, Forms, 114 (Tex.Cr.App.1973). New Texas Penal Code 31.- S.W.2d 03E, p. (1973), 38 where an indictment for recognize applicable the We still person includes the State, Tex. Selvidge rule stated in v. 126 the effective consent of the own 489, 1079, (1934): “An 72 1080 Cr.R. S.W.2d er.” specifically indictment to be sufficient must Similarly, McClung, Jury Charges for allege every constituent element of the of Practice, p. (Rev.Ed. Texas Criminal 131 nothing and leave to inference or fense 1973), the element of “effective is consent” intendment.” charge in a by included of theft the is- herein, by the rules set Tested out of a check suance with insufficient funds to in this case conclude indictment (charging the same theft under cover Sec- fatally failing defective in 31.03). tion elements of the each of the constituent 616, In Musick v. 121 51 Tex.Cr.R. theft; and, the failure to include offense of 715, (1932), 716 S.W.2d Court wrote: an averment that the theft of elementary, statutory, “It is as well as consent of the was without the effective element that the essential of rendered it defective. only be taken not fraudu- lently but without the consent of the in seen fit legislature has owner, with the intent statutory phrase in the new clude the appropriate owner of value and included, crime; and, it has been so since property to the benefit of the taker. had knowl legislature presumed . is said that the definition of [I]t holdings of this many prior edge of the larceny which omits ‘without the consent to be included language requiring Court universally the owner’ is now conceded v. Stratmon in the indictment. See (emphasis supplied) to be defective.” 135, 188, 138 333 S.W.2d 169 Tex.Cr.R. In therein cited. authorities (1960), and compare Worthington v. 469 See defining 182, the new statute (Tex.Cr.App.1971), holding adopting 183 element of retained as an legislature indictment defective which contained an the owner’s consent the lack of phrase “without the consent” of the offense appropriation of spe- but omitted an by (C) by person given a who reason 2. See also the definition of “effective consent” 1.07(a)(12), V.T.C.A., appearing defect, in Section Pe- youth, or intoxica- mental disease (1974): nal Code by to be unable to the actor is known tion “ decisions; by consent’ a make reasonable ‘Effective includes consent legally solely commission (D) given authorized to act for detect the the owner. is not effective if: Consent an offense.” force, threat, fraud; (A) by induced (B) given the actor knows is owner; legally authorized to act for the
593 the definitions of 308, . . Under State, 126 Tex.Cr.R. v. Parrish 274, (1934), burglary contained the V.T. the Court wrote: and theft C.A., January Penal generally been re-enactment has “Such although proof will supra, in- regarded by courts and text-writers necessity establishing volve the stat- to a re-enactment of equivalent of theft commit offense legislative amounting approval ute 31.02 and (Sections previous- of the statute interpretation Code), the constituent elements of the given by the courts.” ly theft or theft need intended particular Accord: Willis Tex.Cr.R. or infor- not be (1941); Lamkin burglary intent to com- mation 311, 136 S.W.2d 138 Tex.Cr.R. theft.” mit (1940). meaning “com- “technical” Both the ground of error is sus- Appellant’s first *4 usage” carry “steal” with of the term mon judgment the of the trial court and tained use “without the owner’s their and the cause dismissed. reversed Baldwin v. 538 S.W.2d consent.” See (T’ex.Cr.App.1976),where this Court approved by Court. Opinion the charged the held that the indictment “ DOUGLAS, . and un- Judge (dissenting). . . did then there accused lawfully, knowingly intentionally steal majority holds the indictment that Charge belonging credit a Master card fundamentally defective be- Brenda White” was sufficient to and from Reynolds exer- does not cause offense of credit card abuse the property control over the “without cised have defined. that theft did not to be was no effective consent.” There present case in case the Baldwin the or indict- quash the was no motion to the indict- there attorney and his knew he Appellant ment. ment. has to charged with theft and neither day they did not have notice of claimed this Court should hold This against. he had defend what fundamentally defective. in broader lan-
The indictment is drafted the consent
guage than statute but without allegations. It is included the Reynolds unlawfully exercise con- did ON STATE’S MOTION FOR the property over the owner and trol REHEARING the “Defendant” stole the (the owner).” A complainant “from the ONION, Presiding Judge. anyone see layman readily else can submission, On we held that reading part charging the case funda the theft indictment this stole the mentally At time of the defective. which includes lack of consent. One cannot offense, steal with consent of owner. (1974), provided: The new Penal Code was drafted with if, A commits with “(a) an offense many intent to eliminate of the archaic proper- which had become entrenched in practices ty: no legal our law and which served useful he obtains unlawful- In Gonzales v. purpose. ly; or (Tex.Cr.App.1975), recog- this Court prop- control over the he exercises that the new Penal Code altered nized unlaw- pleading erty, property, other than way requirements bur- some fully. stated: There the Court glary. Obtaining exercising
“(b) control over “unlawfully” and is not an element of the property is unlawful if: theft offense. actor or exercises con- obtains The Practice Commentary to said 31.03 property without the own- over the trol appears support position consent; or
er’s effective when it states: the ac- stolen and property is “(2) the “The new theft of the offense consists or exercises it from another obtains tor following (1) elements: with intent control deprive (2) (3) property, was stolen.” knowing it (4) obtains actor or exercises property (other over the than real alia, alleges, inter herein The indictment (5) property) unlawfully.” See and cf. 2 appellant: ed., Branch’s 3rd Texas Ann.Penal Stat- unlaw- . . did then and there utes, 31.03, p. (suggested form of fully exercise control over indictment). namely money, one billfold and cash George the intent to theory, Under the there is no need styled Complain- hereinafter the owner’s effective ant, Defendant consent” only is found stole the from the obtaining exercising definition of when Complainant.” control is allega- “unlawful” and that the *5 tion in the instant ap- indictment that the No motion or to the pellant “unlawfully” exercised control over sufficiency of the indictment was filed nor property requirement satisfies that the deficiency mentioned in the pleaded.1 elements of an offense be appeal, appellant for new trial. On urged that the indictment was de- The State further takes issue with the allege as it failed to the theft was fective question manner which the was stated in original the owner’s consent.” “without On opinion on original submission. There agreed. we submission it was question stated that the presented in the rehearing argues
On
State
was:
theft
Penal Code the various
statutes
“Does an indictment
attempts
offense,
into one
V.T.
were consolidated
charge theft state an offense when it
Code,
C.A.,
and that
Penal
§
omits an
that the possessionof
are
of the one offense
found
elements
property
was obtained without the
(a)
of
31.03 and include
subsection
owner’s effective consent?”
“unlawfully.” It contends that
element of
“unlawfully”
(b) merely defines
subsection
In light of the
statute,
fact
of the theft
and the
purpose
for the
alleged “unlawfully
the owner’s effective con-
exercised
control over
property” rather
only in the definition of
is found
than
sent”
“unlawfully obtain-
1971);
State,
statute,
previous general
Martinez v.
Article
State.
DOUGLAS, J., dissents for the reasons dissenting opinion in his on
stated
submission. ODOM, Judge. appeal
This is an from a conviction for misdemeanor; the offense of a class A punishment days jail. was assessed at ten We are met at the outset with fundamen- tal error requires consideration in the justice. 40.09(13), interest of Art. V.A.C. C.P. AUZENNE, Appellant, Edna Mae The information in this case appellant: “. . on or about June Texas, Appellee. The STATE of unlawfully did then and there exercise No. 52643. property, namely, one sofa stove, Court of one Appeals Criminal the value of over twen- of Texas. dollars, ty dollars and under two hundred Feb. with the intent H. Rehearing Denied March Collins, property. Against C. peace and dignity of the State.” The failure of the information in this case exercised control over the without the owner’s con- sent, an essential element of the offense of theft, renders pleading the State’s funda- mentally defective. The conviction is therefore void. Penal Code Sec. 31.03; Tex.Cr.App., 590, (Decided day on rehear- ing). *7 judgment infor- reversed and the ordered
mation
dismissed.
DOUGLAS, Judge, dissenting.
The indictment should be held sufficient
for the reasons set forth in the dissenting
opinions in
parte
Ex
Cannon, 546 S.W.2d
266 (Tex.Cr.App., 1976);