Rhodes v. State

period prescribed after the § and cases there cited. More- applicable over, statute limitations has protect the accused can himself from a new re- expired, be danger that the statute will tolled later end of turned not than the indefinitely by demanding hearing.1 a succeeding regular term of such Hemminger, the court in State v. Like the term at which such indict- following justice court the instant case insufficient, ment found defective or jurisdiction complaint had to entertain the during grand jury which a shall be in and issue arrest warrant. No reason new session which indictment shall not why appears petitioner should be in a more by any barred statute limitations.” position favorable that an a simi- accused in thorough govern- After a analysis lar where charging instrument was position, ment’s the court concluded that having jurisdiction filed in a court try indictment, the term “indictment” means the case. mean, government and did not as the had We hold the filing should of a contended, any charge formal accusation or complaint justice in a court will toll the wrongdoing. court running of the statute of limitations. And filing of the information did not toll since this case running of statute limitations and tolling period, facts see limitation Coo reversed the It is conviction. clear that per (Tex.Cr.App. contrary been result would have reached 1975), we should further hold that such Section 3288 made reference to indictment is not void its face. filing or complaint, of an information sought The relief should be denied. 12.05,supra, does. significant It is that Article 12.05 is di- ODOM, DAVIS, and W. VOLLERS C. filing indictment, rected to the of an infor- JJ., join in this dissent. complaint mation or in a court of competent jurisdiction, and that it does not state the

charging instrument must filed in a having jurisdiction

court to try the case. Legislature’s in enacting intent

provision not only period to extend the in cases limitation where RHODES, Appellant, Alford is filed within the prescribed information

period, period but also to where extend good is filed complaint faith Texas, Appellee. The STATE of has run State before statute and there 56119. No. present is insufficient time to an indictment or information. Appeals of Texas. Court Criminal majority permit fears that Banc. En filing justice court to of a 18, running toll the of the statute could allow a Jan. during felony charge to burden an accused Appellant’s Rehearing Motion for of his But there is no remainder life. Denied Feb. from right escape prosecution; vested grace, acts of

statutes of limitation are

surrendering by sovereign right of its

prosecute. See 22 Criminal Law C.J.S. 32A, by adding Chapter adding ch. effective See Tex.Laws Articles 17.151 Act, July relating by amending as of 1978. This to a Articles 29.02 and cases, speedy in criminal amends Code 29.03. amended, Procedure, 1965, of Criminal

Holt, Meehan, Nacogdoches, Tatum & appellant. Hancock,

Herbert Atty., B. Dist. Nacog- doches, for the State.

OPINION ODOM,Judge.

This is appeal revoking from an order probation. 5,1974, appellant

On February waived his plea right by jury to trial and entered guilty before the court to an indictment which him with the charged offense of of corporeal personal property ($50.00),a Fifty value of over Dollars viola- tion of Articles 1410 (1925). Ann.P.C. Punishment assessed (5) imprisonment years; five how- ever, imposition of sentence was sus- pended placed proba- appellant reciting tion. A entered judgment was appellant guilty to the “pleaded indictment,” charged and that it ADJUDGED, “ORDERED, and DECREED guilty Court that charged cause and in the indictment plea the Defendant as confessed made,” etc. herein filed a mo- On March State appellant’s probation. That tion to revoke 777; King, Tex.Cr.R. had violated that, 638, 271 Beebe probation February on or about S.W. 25, 1977, unlawfully he operated drove and public high- containing road

a motor vehicle on “A or sentence be reformed on way irregularity while was intoxicated under pro entry tunc is not appeal nunc intoxicating liquor. influence void, at- may collaterally not be 24,1977, court, a On March trial after State, Barker v. 169 Tex.Cr.R. tacked. hearing, appellant’s probation, revoked 182; su- parte King, Ex 334 S.W.2d finding probation that he had violated his in pra.” alleged in the manner State’s motion to in instant case The indictment revoke. On the same date the trial charged with the offense of theft appellant parties being present, with all entered an of the corporeal personal property of value correcting original judgment order nunc fifty original judg over of dollars. pro tunc to reflect that appellant had been appellant ment of conviction recited that of the proper- convicted offense of “theft of charged had been found “as in ty fifty of the value of dollars or more.” Considering in indictment.” appeal appellant On this does not chal- construing judgment in this original lenge trial finding court’s appellant adequate we find it to show that probation violated his in the manner al- appellant was convicted of the offense leged. However, he does contend corporeal personal property theft of of over court abused revoking discretion in fifty No reversible error is shown. dollars. probation for the origi- reason that the unassigned We consider as error in judgment nal of conviction did not recite justice 40.09(13), interest whether was convicted of Ann.C.C.P., the question Vernon’s theft; theft or misdemeanor that the defect original sufficiency of the indictment. The judgment was fundamental alleged property that the stolen indictment by could pro corrected nunc paneling was “wall the value of over entry attempted court; tunc and, Fifty ($50.00) Appellant Dollars.” did not that the trial court “by abused its discretion in attack the indictment the trial court permitting revocation pro even if a nunc manner, any nor does he the suffi- hearing tunc permitted was for the reason ciency this indictment Court. that such correction occurred after the date Prior Article 21.09 to amendment alleged of the violation such judgment Ann.C.C.P., provided: would be valid from the date it “When becomes describe correction if the court had authority such indictment, a kind in an property correct.” We overrule these contentions. name, general description of the same State, Hughes The case of v. 493 kind, S.W.2d quality, ownership, number and ”1 166 (Tex.Cr.App.1973), dispositive ap- known, shall be . . sufficient. pellant’s contentions. There we stated: State, (Tex.Cr. v. 150 Willis 544S.W.2d considered App.1976),we held that a theft indictment construing and sentence in V.T.C.A., which was drawn under Penal order determine the offense for which was defec Code Sec. an accused is convicted. The judgment tive it described the al because may be reformed so as to show the of- legedly only as “merchandise.” We stolen

fense of which the accused was found turn first cases cited Willis guilty by parte jury. authority. the court and Ex known, stated, gener

1. Effective June that fact shall be and a statute classification, describing identifying amended to read: al be, as near as shall known, suffice...." personal property alleged in an “If name, kind, indictment shall number, identified ownership. When is un 668 (Tex. require would a reversal when 532 S.W.2d raised for

In Moore appellant’s first time prop appeal.”3 of stolen description Cr.App.1976), rehearing it was second motion for conclud- “barbed wire” a theft indictment as erty in ed that con- noted, It should be insufficient. was held tained in the was insufficient however, trial court had in Moore the requirements (now meet the Article 403 Likewise, quash.2 overruled 21.09), V.A.C.C.P.4 (Tex.Cr. Moore indictment, that an App.1971), In Leos stole indictment de- $50.00,” value of over of the “tires scribed stolen as “oil field and that the tri “fundamentally” equipment of over value $50.00.” overruling al court erred was held to be “fatally” quash. defective.5 630, State, Tex.Cr.R. 323 Oakley v. 167 In State, 275, Howk v. 138 Tex.Cr.R. 135 alleged (1959), theft indictment 43 S.W.2d (1940), 719 involved and S.W.2d “seed of the value property to be the stolen the swindling. prop- information for There original submission $50.” in excess erty “personal property was described as no noted that there was motion Court the the value six dollars.” Court held defective; however, and stated that the indictment quash pleadings opin- to the the alleged the seed does note a those quash plead- failure describe ion motion “the nature ings.6 of such not the swindling, compared fenses of with Scott v. theft and the should be amount of

2. Moore State, (Tex.Cr.App.1976). property In S.W.2d 128 the check and not the value of ac 543 Scott, quired punishment applicable which de- a theft service indictment the determines allegedly 567b, service stolen as “auto the scribed to the defined Article V.A.P. was held not to alterations” C.” Citing Corp. Food v. American Plant Trigg, defective. the In the Court held that trial court 598, State, Tex.Cr.App., the Court quash overruling erred a motion to an infor- quash no motion to the indictment “Groceries, noted that property that mation described been filed. unknown, and the amount kind and the balance cash of the and value Fifteen 8/100 dol- posi- support of the the cases 3. One of cited lars.” was Donahoo tion taken on submission rehearing opinion author of on stated the 388, State, S.W.2d 162 Tex.Cr.R. 285 952 v. State, the case of Tex. that Crawford 165 (1956). In Donahoo the stated: Court 147, (1957), 305 362 caused him Cr.R. S.W.2d complains “great concern.” The Crawford complaint and information are insufficient to tubing.” upset opinion inch was “two judgment. quash support No quash, but stated: notes a motion to is found in the record. Reliance information State, upon exception 113 Tex.Cr.R. “We find no to the form of is had Mathis bill record, 164, case this Court and tran- 18 S.W.2d 920. In that the indictment fatally script overruling exception that an information was shows no which, (1) quash, it did not set forth false because under Article Ann.C.C.P., pretenses 760e, which the means of to au- obtained, (2) question it did thorize Court to consider untrue, (3) pretense it did not exception.” false and a bill without property acquired with certain describe ty. Although does not so of the Court this is So far as we determine can state, an Leos record shows examination of the as hold case be construed could sufficiency pre-trial challenge ing that the to describe failure fact, In was filed in the indictment. no brief certainty may acquired with and definiteness However, brief, in its defendant’s behalf. grounds reversal asserted as when State confessed error. appeal. Trigg the first raised for time on State, S.W.2d 117 34 Tex.Cr.R. original papers in that cause reflect pointed was one out that such a we properly quash: following ruling the motion We raised a motion “Presented the above on the call of entitled rule in the inclined to extend the are not by the Court and numbered over- this one defect case hold Mathis ruled.” Unlike of is fundamental error. alone

669 In the case Scott v. 125 Tex. “cattle” was an insufficient (1934), 1040 an embez Cr.R. 67 and reversed. The stat- Court “fatally” zlement indictment was held de ed:

fective. described There “But we know of no case in this state oil.” lubricating as “certain How that holds an indictment sufficient which ever, no mention was made to whether way does not in designate some the num- was challenged prior to tria ber of things or animals to have l.7 stolen; that, been we hold Luce v. found, Tex.Cr.R. S.W. supported could be it would not be swindling involved a indict- by authority.” Although ment. the indictment was said to Summarizing these cases decided under contain a grounds, “fatal” defect on other enactments, that, hold “against Court did a motion see were we five reversed because quash,” property described as “the furni- motions to were quash improperly over- ture equipment” was insufficient.8 ruled, five were reversed in the absence of The Court cited with approval case of a motion to for fundamental defects Mathews v. 48 S.W. the property descriptions, one was (1898).9 affirmed. Mathews was a conviction cattle Some of the statements from these cases that was reversed motion for rehearing. quoted suggest inconsistency above submission, original On Mathews v. quash the need for a motion to a defect for 47 S.W. 647 21.09, (Contrast supra. Oakley conviction was affirmed over defend- submission, Donahoo, Craw- ant’s contention that the indictment failed ford, Mathews, early all with allege against an offense law and Scott, Leos, Oakley rehearing, on second failed to any specific theft of Willis, supra.) all An examination of any person. from The indictment Art. 21.09 in context Code of in the charged appellant with the theft of “on may prove helpful Criminal Procedure in Although cattle.” the defendant did not resolving apparent inconsistency. this challenge trial, the indictment This Chapter article one of did in a is several in challenge it motion for new trial. 21 of the provide allega- This Court treated the “on” Code that word as sur- rules plusage particular and held that tions of matters.10 indictment was Other articles good as against express general require- motion in arrest of in that judg- chapter rehearing ment. Court held that alleging ments for an offense.11 original papers (purchaser sale), (act 7. An examination 21.12 reveals unlawful 21.13 challenge sufficiency pre-trial offense), to the of the done with to commit intent another (recklessness negligence). indictment. 21.15 and criminal swindling quoted 8. The statutes Luce related 11. Art. 21.03: acquisition personal prop- to the or movable “Everything should be an indict- stated in erty opposed property. as to real proved.” ment which is to be pointed out that the use of the term “furniture Art. 21.04: equipment” indicated a distinction be- certainty required in an indictment is tween two and that the indictment fur- plead such as enable accused to will by nished no data which the court could deter- given upon be it in bar of things designated mine whether were such any prosecution for the same offense.” as would be treated law as fixtures or Art. 21.11: property. movable shall “An indictment be deemed sufficient charges the commission of the offense Willis, but Mathews was cited in is cited ordinary language concise in such a opinion, in both cases. The Moore Willis person manner enable a common as to above, stated relied on both cases. Moore meant, understanding to know what See, intent), g., (particular certainty give degree e. arts. 21.05 21. with that will (venue), (names), (ownership), particular 21.07 of the 21.08 defendant notice deficiency indictment are listed “Unless the requisites of an under Article Ann.C.C.P., number 21.21(7) 21.02(7)], in Art. supra, be Art. [or must provides, “The offense 7 of which degree utterly charge such a as to fail to words.” plain intelligible set forth that an offense against law was com- Corp. v. Plant Food American (cf. by 27.08(1), mitted defendant Art. the corre considered the Court supra), objectionable it is then as to for informations found sponding Id., form and not as to substance.” 21.21(7), We find the V.A.C.C.P. respect that case with infor- holdings in degree matter of deficiency the need for motion mations and general terms referred to in American to indictments. applicable are also appropriate equally regarding Plant Food is charge alleges an offense was “If the claimed in the deficiencies defendant, then it is by committed 21.09,supra. property under Art. This line support verdict of sufficient in law to between defects of sub- of demarcation If thereon. if one rendered explains why those stance and of form some allege, utterly it is insuf does not so then descriptions of are any thereon ficient and conviction based challenged defective and others must A void conviction is void.1 course, any Of inconsist- observed that It will also be “1. point encies this in cases decided before set in the matters forth defect Food, supra, American Plant were resolved of Article 27.08 provisions other [V.A.C. sufficiency very holding our go objections also therein C.P.] support notice, information to give the indictment or failure based thereon. particular conviction jurisdictional defects, contrasted with must sufficiency of quality It quash.13 be raised motion to An exami- law pleading as a matter of State’s of the two decided after Amer- nation cases support that makes the the conviction appli- proper ican Food demonstrates Plant one substance. deficiency [End cases are principles. cation of these These footnote.] State, 544 150and Moore v. Willisv. thus challenged at time and an “be State, 532 S.W.2d 333. to the State’s exception the substance of Moore, supra, In we reversed because 27.08, pleading, as forth in Article set failing grant “erred in to trial court supra, for first time raised on indictment” for motions to Food, appeal.” supra, Plant at American was described theft in which the 603.12 as, fifty wire the value of over “barbed Regarding specific requirements of being dollars, and there the same then (substantially for in- same belong- corporeal personal property and 21.02, supra, under Art. dictments ing to Morris Peterson.” 21.21), the court in informations Willis, supra, a theft indictment Food, supra, recognized Plant American in the absence fundamentally deficiency may be of substance under that quash. to The of a motion 27.08(1),supra, or of form under Art. Art. degree: simply as “merchandise.”

27.09(2),according to the described jurisdictional charged, nature enable 12. For a discussion and with which void, conviction, whereby pronounce proper the indictment is of such defects on to , Cannon, Tex.Cr.App., parte judgment; see Ex 266, 268, concurring opinion. Art. 21.17: an used a statute to define of- “Words strictly pursued purpose Regarding not fense need of a motion use indictment; quash, to words it is use other sufficient to see Drumm meaning, Day conveying - S.W.2d -(Tex.Cr.App.1977); Tex.Cr.App., which in- or the same 302, 310, statutory rehearing, words.” at the sense of 532 S.W.2d p. clude n. 7. general 21.09, supra, “Merchandise” so must be raised by a motion to allega non-descriptive as to constitute no quash, not be raised first It well tion of the all. could as appeal, time on unless the description is so merely “Wall “property.” have deficient to be no at all and case) (alleged in the instant paneling” defect, to jurisdictional constitute a as was hand, other while not as detailed a Willis, supra. 21.09, required by as is description in the indictment in this case is, nevertheless, supra, sufficient to does not suffer from such a defect. purposes element of theft for of invok is affirmed. Thus, ing jurisdiction of the trial court. quash, to subject while a motion to it is not ONION, J., P. concurs in the result. As in He defective. American would Food, questions not reach the supra, if discussed Plant found insufficient notice, unassigned error. give him it would objection by duty voice mo ROBERTS, J., concurs the result. Compare, tion to Drumm v. supra.

Automatic reversal is no more vindicate a 21.09, comply supra, with

does timely objection, proper

absent than is to

it review a search14 confession15 objection. Moreover, HAYES, without Appellant, Ronnie Lee judicial public economy suffer in such defendant, When a charged by cases. Texas, Appellee. STATE alleges against an offense law is regular face, on its fails to No. 56330. challenge it ground on the comply it does not with Article Court of Criminal Appeals of Texas. safely it can be assumed that he found his satisfaction and Panel knew what he No. 1. charged with. To hold otherwise would be Jan. allow bag” defendant to “sand

judicial process by remaining silent and not

calling 21.09, supra, the Article defect attention,

the trial court’s hoping while

jeopardy subsequent prosecution will bar Then,

acquittal or otherwise. if the verdict adverse,

is courts would be forced to hold the defendant had no notice under 21.09, supra, previ- although

ously complaint. voiced When this contemplated not difficult to con- judicial

ceive time wasted or the

expense public. The law does

require such a result.

Consequently, we a defect hold that under (Tex.Cr. parte Bagley, (Tex. See Ex Scott S.W.2d 128 See App.1976). Cr.App.1974). Sykes, Wainwright Cf. U.S. 97 S.Ct. 53 L.Ed.2d

Case Details

Case Name: Rhodes v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 18, 1978

Citation: 560 S.W.2d 665

Docket Number: 56119

Court Abbreviation: Tex. Crim. App.