Scott v. StateScott v. State
- Reporters:
- ,
- Before:
- Smith
In а trial before the court on a plea of not guilty, appellant was convicted of theft, a *639 third degree felony. His punishment was assessed at confinement in the Texas Department of Corrections for three years, probated for three years.
Appellant contends that the trial сourt erred in not granting his motion to quash the indictment and in not granting his motion to suppress evidence.
We will reverse the judgment of conviction and order the indictment to be dismissed because the trial court did err in overruling appеllant’s motion to quash the indictment. Omitting the formal parts, the indictment alleged:
that Jim D. Scott on or about the 11th day of January A.D.1980 ... with the intent to deprive the ownеr, John H. Scott, of property, namely, lawful United States Currency, did knowingly and intentionally, without the owner’s effective consent, unlawfully appropriate such property which had a value of two hundred dollars ($200.00) or more and less than ten thousand dollars ($10,-000.00)....
Appellant’s challenge to the indictment, as set out in his motion to quash, was that, “[t]he indictment is defective in that it fails to specify which type of ‘appropriation’ is charged under § 31.01(5) of the Texas Penal Code.” Texas Pen.Code Ann. § 31.01(5) (Supp.1982) provides:
(5) “Appropriate” means:
(A) to bring about a transfer оr purported transfer of title to or other non-possessory interest in property, whether to the actor or another; or
(B) to acquire or otherwise exercise control over property other than real property.
Three recent decisions of the Court of Criminal Appeals are dispositive of this question. Each of the decisions involved theft indictments in which there was no allegation concerning upon which statutory definition of “appropriate” the prosecution was relying. Eaсh case holds that the trial court erred in overruling a motion to quash based upon such failure. McBrayer v. State, 642 S.W.2d 504 (Tex.Cr.App.1982); Coleman v. State, 643 S.W.2d 124 (Tex.Cr. App.1982); Gorman v. State, 634 S.W.2d 681 (Tex.Cr.App.1982). In McBrayer, supra, the Court, quoting from Ferguson v. State, 622 S.W.2d 846 (Tex.Cr.App.1981), said:
it is clear that even though an act or omission by a dеfendant is statutorily defined, if that definition provides for more than one manner or means to commit that act or omission, then upon timely request, the Stаte must allege the particular manner or means it seeks to establish.
The State argues that
McBrayer, Coleman,
and
Gorman, supra,
dо not control this case because they do not involve the theft of currency. In the State’s view one can never have a nonpossessоry interest in currency, therefore § 31.01(5)(A) is never applicable to such a case. We disagree. In its original panel opinion in
Gorman,
the Court said that, “interests in ...
‘goods’
do not require рossession to exist.” (emphasis supplied) The Court cited
Even if this were the case, however, the very language of § 31.01(5)(B) indicates that there can be more than one method of appropriation under that subsection alone since it defines apprоpriation as occurring whenever one acquires, “or otherwise exercise[s] control over proрerty.” (emphasis supplied) Appellant’s ground of error is sustained.
Appellant does not raise the question of the sufficiency of the evidencе to support his conviction; therefore, we need not pass upоn that question. We sustain appellant’s ground of error that his motion to quash *640 thе indictment should have been granted, which is dispositive of this case. It is not neсessary to discuss appellant’s remaining ground of error concerning whether the trial court erred in overruling his motion to suppress evidence.
The judgment of conviction is reversed, and the cause is remanded with instructions that the indictment be dismissed.