At the risk of incurring the charge of being intractable, or uneducable, I adhere substantially to the views expressed in this Court's earlier Moallen opinion, Moallen v.State, 661 S.W.2d 204 (Tex.App.-Houston [1st Dist.] 1983), and will attempt another and, hopefully, more persuasive formulation.
Omitting the formal portions, the indictment charged, in pertinent part:
that Maryam Moallen . . . did then and there unlawfully and with intent to obtain property and service, use a fictitious Southwestern Bell Telephone Company credit card, purporting to be issued by Southwestern Bell Telephone Company to Maryam Moallen.
A charging instrument must give the accused precise notice of the "nature and cause of the accusation against him." Tex. Const. art. I, sec. 10. A cursory analysis of the indictment reveals that it is seriously deficient in failing to identify the owner or dispenser, or the nature, of the "property and service" that the appellant sought to obtain by use of a "fictitious"1 credit card. *Page 929 The unnamed complainant could theoretically have been: 1) Southwestern Bell Telephone Company; 2) the actual owner of the card purportedly issued to Maryam Moallen; or 3) the owner or dispenser of the "property and services" that the appellant intended to obtain. Similarly deficient is the absence of any clear meaning or explication of the conclusory word "fictitious." By these conspicuous ambiguities, the accused is improperly required to anticipate any and all variant facts (about the ownership of the "property and service" and the validity of the credit card) that the State might hypothetically seek to establish for a conviction.See Ferguson v. State, 622 S.W.2d 846, 848 (Tex.Crim.App. 1980);Drumm v. State, 560 S.W.2d 944, 947 (Tex.Crim.App. 1977) (en banc).
Appellant's motion to quash entitled her to the allegation of facts sufficient to bar a further prosecution for the same offense and sufficient to give her precise notice of the offense with which she was charged. Ellis v. State,613 S.W.2d 741 (Tex.Crim.App. 1981); Cruise v.State, 587 S.W.2d 403, 405 (Tex.Crim.App. 1979); Tex. Code Crim.P.Ann. art. 27.09 (Vernon 1966).
I recognize that unless a fact is essential, the indictment need not plead evidence relied on by the State. See Smithv. State, 502 S.W.2d 133, 134 (Tex.Crim.App. 1973). I recognize also that the State need not clarify a charging instrument when the terms or allegations challenged do not relate to an act or omission of the defendant. For example, in a delivery of heroin case, the State must specify, when timely requested, whether delivery was by physical transfer or by offer to sell. Ferguson, 622 S.W.2d at 848. In a theft case, the State must set out, again on timely request, the manner in which the defendant appropriated the property.Gorman v. State, 634 S.W.2d 681, 682-83 (Tex.Crim.App. 1982). Specifying who the owner or dispenser of property or services is, and what property or services she was accused of intending to appropriate, are more than evidentiary matters: they go directly to the conduct of the accused and the manner and means by which the offense was allegedly committed, as necessarily seen from the appellant's perspective. Without being informed of what she was accused of intending to obtain, or from whom, or by what identifiable credit card, or what circumstances rendered her credit card "fictitious," appellant was unconstitutionally deprived of knowledge essential to her defense. See Harrisv. State, 587 S.W.2d 429 (Tex.Crim.App. 1979); Terryv. State, 471 S.W.2d 848 (Tex.Crim.App. 1971). The fog permeating this indictment is Kafkaesque in its thick and intimidating vagueness.
When the underlying statute denouncing the offense permits conviction on more than one set of circumstances, the accused may insist, by his motion to quash or exception, onspecific allegations of what the State will rely upon to convict. Cruise, 587 S.W.2d at 404-05; Amayav. State, 551 S.W.2d 385, 387 (Tex.Crim.App. 1977);Daniels v. State, 674 S.W.2d 388, 391 (Tex.App.-Austin 1984, no pet.). Merely tracking the statutory language is not sufficient where, as here, the language of the statute is not completely descriptive of the offense. Conklin v. State, 144 Tex.Crim. 343, 346,162 S.W.2d 973, 975 (1942); cf. Baldwin v. State, 538 S.W.2d 109 (Tex.Crim.App. 1976).
In her timely motion to quash, appellant specified ten different ways that the indictment's allegations were insufficient to put her on notice of:
*Page 9301) what property, or service, or both, that she allegedly sought to obtain;
2) the identity of the owners of the subject property or service, or the identity of some other possible complainant, so as to accord her due notice of the witnesses against her;
3) the description of the credit card, the identity of its issuer, or even of the cardholder, so as to accord her due notice of the charges and the witnesses against her; and
4) the manner and means used to commit the alleged offense.
A motion to quash should be sustained if the facts sought to be ascertained are essential to give adequate notice, as examined from the perspective of the accused. See Jeffersv. State, 646 S.W.2d 185, 189 (Tex.Crim.App. 1981) (op. on reh'g). I conclude that the vagueness of the indictment, as described in the foregoing summary of the appellant's motion to quash, failed to provide the appellant with sufficient and specific information to enable her to prepare her defense.Castillo v. State, 689 S.W.2d 443, 447 (Tex.Crim.App. 1984) (op. on reh'g); McManus v. State, 591 S.W.2d 505,515 (Tex.Crim.App. 1979) (en banc); Haecker v.State, 571 S.W.2d 920, 921 (Tex.Crim.App. 1978). Moreover, such vagueness does not identify the alleged offense sufficiently to enable the appellant to plead any judgment that may be pronounced on it as a bar to any subsequent prosecutions for the same offense, because she is in essence accused of using a "fictitious" (the term is not only conclusory but undefined) credit card, issued in her own name, against an unnamed person, with intent to obtainunspecified property and services from anunnamed person, which property and services were hypothetically owned by an unnamed person. In my view, this is emphatically not the "precise notice" of the accusation that our Texas Constitution requires of a charging instrument.
I would sustain appellant's fifth, sixth, seventh, and eighth grounds of error, reverse the judgment of the trial court, and order the indictment dismissed.