Santana v. State

658 S.W.2d 612

Tex. Crim. App.

1983

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Carlos Molina SANTANA, Appellant, v. The STATE of Texas, Appellee.

No. 63817.

Court of Criminal Appeals of Texas, En Banc.

Oct. 19, 1983.

660 S.W.2d 612

The above allegations of the indictment, that appellant caused his vehicle to collide with the victim, and thereby recklessly caused the death of the victim, because he could have averted the collision had he not been intoxicated and guided his vehicle away from the victim, or could have averted the collision by not being intoxicated and kept a lookout for the victim prior to the collision, do not allege any awareness on the part of appellant. Such only alleges unawareness or inattention. Unquestionably, such allegations are sufficient to allege the commission of the offense of criminally negligent homicide, but such allegations are insufficient to allege that appellant acted recklessly.

I observe that the majority has also relied upon this Court‘s decisions of

Arredondo v. State, 582 S.W.2d 457 (Tex.Cr.App.1979); . However, its reliance is sorely misplaced because those cases are inapposite to the facts of this cause.

Townsley, supra, the prosecution plead that the defendant “drove a motor vehicle at an excessive rate of speed while attempting to elude a police officer.” Clearly this alleged an affirmative or conscious act. In , it was alleged that the defendant “grabbed the steering wheel of a motor vehicle and pulled it to the right.” Clearly this alleged an affirmative or conscious act.

However, the allegations of omission in this cause, which do not by any stretch of the imagination allege affirmative or conscious acts, are more akin to those found in such cases as

Jones v. State, 388 S.W.2d 716 (Tex.Cr.App.1965); ; . Jones, Short, and Scott, not Arredondo and Townsley, should control the disposition of this cause.

The jury‘s verdict finding appellant guilty is a general verdict, in that it does not specify whether they found appellant guilty under the first or second part or both parts of the paragraph of the indictment. The jury may have thus conditioned its verdict upon the defective portion of the indictment. The judgment of conviction should be reversed, and not affirmed.

To the action of the majority affirming the conviction, I respectfully dissent.

Doris Sipes, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. and Stuart Leeds, Asst. Dist. Atty., El Paso, Robert Huttash, State‘s Atty., Austin, for the State.

OPINION

W.C. DAVIS, Judge.

A jury convicted appellant of burglary of a building, V.T.C.A., Penal Code, § 30.02(a)(1). The court assessed punishment at twelve years’ confinement.

Appellant contends that the court erred when it overruled his motion to quash the indictment. The indictment tracks the words of the statute and alleges that appellant burglarized “a portion of a building” in El Paso County. Appellant argues that this description is vague, indefinite and defective under Articles 21.09 and 21.02, § 7, V.A.C.C.P.¹

The general rule is that an indictment that tracks the words of a statute is legally sufficient.

Marrs v. State, 647 S.W.2d 286 (Tex.Cr.App.1983); . V.T.C.A. Penal Code, § 30.02 provides in part:

“(a) A person commits an offense if, without the effective consent of the owner, he (1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; ...”

The present indictment tracks the statutory language and is sufficient unless the facts sought by a motion to quash are essential to giving notice.

Thomas v. State, 621 S.W.2d 158, 161 (Tex.Cr.App.1981).

Both “habitation” and “building” are defined in V.T.C.A. Penal Code, § 30.01. Definitions of terms are essentially evidentiary and need not be alleged by the State. They are matters of proof. “Habitation” is sufficient description.

Marrs, supra, 647 S.W.2d at 289. “Habitation” having been found sufficient, “building” is a priori sufficient. We hold that an allegation of “a portion of a building” is likewise sufficient to provide appellant with notice of acts or omissions he is alleged to have committed. “Portion of a building” tells the accused both that the offense took place in a building and that the State contends that the part of the building involved, and not necessarily the whole building, was not then open to the public. The description is sufficient as against appellant‘s motion to quash.

In addition, appellant alleges that the description is insufficient for failing to allege the city and the particular building in which the offense occurred.

Nevarez v. State, 503 S.W.2d 767, 768-69 (Tex.Cr.App.1974), this Court stated:

“Murder, burglary and theft are examples of offenses which may be committed anywhere within the county and it is only necessary in such cases to allege that the offense occurred within the county.”

A timely motion to quash was properly overruled.

Hodge v. State, 527 S.W.2d 289 (Tex.Cr.App.1975), next established the three-step test that has become the “almost universal rule” applicable to claims of inadequate description involving location within the county where the offense occurred.

“It is only necessary to allege the name of the county as the place where an offense was committed, (1) if the offense may be committed anywhere within the county, (2) the place where committed is not an element of the offense, and (3) the court in which the offense is tried has countywide jurisdiction.”
527 S.W.2d at 292

The Hodge test applies to claims of defective description whether raised by overruling of motion to quash or by allegation of fundamental defect.

Hodge, supra; ; .

The offense of burglary with which appellant was convicted may be committed anywhere within the county. The state district court in which the offense was tried has countywide jurisdiction. Finally, a specific location is not an element of § 30.02(a)(1).

Denison, supra; . Appellant‘s ground of error is overruled. To the extent that it is inconsistent with this opinion, is overruled.

Appellant‘s second ground of error alleges a violation of the Speedy Trial Act, Article 32A.02, V.A.C.C.P. Appellant argues that the State‘s announcement of ready, filed with the District Clerk within 120 days of the commencement of the action, is insufficient for the purposes of Article 32A.02. Citing no authority for the proposition, appellant contends that the announcement of ready must be made in open court. The contention is without merit. The instant procedure is the same as that followed in

Lopez v. State, 628 S.W.2d 82 (Tex.Cr.App.1982) and . Appellant‘s ground of error is overruled.

The judgment is affirmed.

ONION, P.J., and McCORMICK and CAMPBELL, JJ., concur in the result.

ODOM, Judge, dissenting.

The majority opinion has confused two distinct rules of pleading, and in doing so reaches the wrong conclusion in this case.

The rule upon which the majority relies is that an allegation of the location of the offense need only state the county if the offense may be committed anywhere in the county, the place where the offense is committed is not an element of the offense, and the trial court has countywide jurisdiction. Appellant, however, relies on Art. 21.09, V.A.C.C.P., which states the rules for alleging descriptions of property:

“If known, personal property alleged in an indictment shall be identified by name, kind, number, and ownership. When such is unknown, that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice. If the property be real estate, its general locality in the county, and the name of the owner, occupant or claimant thereof, shall be a sufficient description of the same.”

The majority misses the point and avoids the issue by relying on a rule that is irrelevant to the issue raised. Location of the offense and description of the property are two distinct matters, that, in burglary, happen to coincide, since the real property that is the object of this property offense also happens to be the location of the offense. The fact that the rule for alleging the location of the offense has not been violated does not mean Art. 21.09 may be ignored.

Three of the cases cited by the majority are burglary prosecutions. In

Marrs v. State, 647 S.W.2d 286, Art. 21.09 apparently was not relied on by the defendant because it is neither cited nor discussed in the opinion. , cites Art. 21.09, which it quotes in a footnote. The discussion of the issue under consideration there, however, focuses upon the location of the offense rather than description of property. The distinction between these two issues seems not to have been noticed there, just as it is not noticed by the majority in this case. The issue before the Court today was not decided in Hodge. , merely relied on Hodge without elaboration, when it overruled a ground of error challenging the allegation of the location of the offense. In sum, none of the burglary cases cited by the majority discussed the rule that applies to this case, nor decided the issue raised here.

Lane v. State, 621 S.W.2d 172, which the majority purports to overrule “to the extent that it is inconsistent with this opinion,” is the only case cited by the majority that does discuss the issue that appellant has raised. The rule followed in Lane is not inconsistent with the rule relied on by the majority: they are simply two different rules that apply to two entirely different issues. The majority applies the wrong rule and thereby reaches the wrong conclusion. Lane should be followed.

CLINTON, TEAGUE and MILLER, JJ., join this dissent.

Notes

Art. 21.09 provides in pertinent part, “If the property be real estate, its general locality in the county, and the name of the owner, occupant or claimant thereof, shall be a sufficient description of the same.