Lindsay v. State

OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for conspiracy to commit capital murder.1 Punishment was assessed by the jury at seven years in the Texas Department of Corrections.

In her twenty-second ground of error, appellant contends that the trial court erred in failing to grant her motion to quash the indictment under which she was prosecuted.

The indictment alleged in part that appellant:

“did then and there with intent that a felony, to wit: capital murder for remuneration and the promise of remuneration, be committed the said Judith Lindsay did then and there agree with Kenneth G. Davis, Jewelle Beard and Larry Whittaker that the said Judith Lindsay, Kenneth G. Davis, Jewelle Beard and Larry Whittaker engage in conduct that would constitute said offense and the said Kenneth G. Davis, performed an overt act in pursuance of said agreement, to wit: by shooting Larry Lindsay with a firearm . . . ” [Emphasis added]

In her timely filed motion to quash, appellant asked the trial court to dismiss the indictment on the grounds that:

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“The term ‘engage in conduct that would constitute said offense’ fails to apprise the Defendant of the alleged conduct which would constitute the offense which is sought to be charged against her and thus fails to allow the Defendant to prepare her defense to said charge.
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“The indictment fails to state the elements of the alleged conduct which would constitute the offense allegedly conspired to by the Defendant, and thus fails to apprise the Defendant of the nature of the conspiracy which the Defendant is alleged to have participated in and of the possible proof with which (sic) she must meet in attempting to defend against said charge . . . ”

Appellant now contends that the indictment failed to apprise her of the charge against her with such particularity as to enable her to prepare her defense. This contention was timely raised and therefore the fundamental constitutional protections of adequate notice and due process are involved. Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978); Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977). These fundamental protections require careful exami*572nation and consideration from the perspective of the accused. Haecker v. State, supra.

An indictment must allege facts sufficient to give the accused notice of the particular offense with which he is charged. Article 21.11, Vernon’s Ann.C.C.P. As we stated in Haecker v. State, supra:

“[i]t is not sufficient to say that the accused knew with what offense he was charged; rather, we must inquire as to whether the face of the instrument sets forth in plain and intelligible language sufficient information to enable the accused to prepare his defense. Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976).”

In her motion to quash, appellant claimed that the indictment did not give her sufficient notice of the conduct or acts relied upon to constitute the offense; i. e., the conduct constituting the felony to which she and the other named persons agreed. The felony offense intended to have been committed was simply alleged as “capital murder for remuneration and the promise of remuneration.” This allegation contained no facts to put appellant on notice of what specific conduct or acts by her upon which the State would rely for conviction. In the face of a motion to quash calling this to the attention of the trial court, we hold that the trial court erred in not granting appellant’s request for allegations of her conduct which constituted the capital murder for remuneration and the promise of remuneration to have been committed by appellant.

In Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978), we held that in the face of a motion to quash timely filed the information which alleged that the defendant “ ‘did then and there unlawfully, intentionally, and knowingly torture an animal, namely, a dog’ ” was insufficient to give him notice of the specific conduct or acts upon which the State would rely to show the “torture.”

Similarly, in Amaya v. State, 551 S.W.2d 385 (Tex.Cr.App.1977), in a prosecution for welfare fraud, the information alleged that the defendant “ ‘did then and there intentionally and knowingly obtain by means of a willfully false statement’ ” public assistance to which she was not entitled. The defendant had filed an exception to this information, complaining that it did not give her sufficient notice of the precise charge against her by not setting out the specific “willfully false statement” which the defendant is alleged to have made. In reversing the conviction for the trial court’s failure to sustain the defendant’s exception to the information, we stated:

“[w]e believe that the deficiency complained of in the information before us was subject to the exception filed by the appellant. As appellant contends, and as the record reflects, the appellant was required to make many statements to the Department of Public Welfare; she was entitled, upon proper exception, to know which false statement or statements the State would rely upon for conviction.”

In the instant case, appellant was entitled, upon a timely request, to know the specific act or acts which were the basis of her agreement to “engage in conduct that would constitute said offense.” We agree that the allegation that “capital murder for remuneration and the promise of remuneration” was to have been committed is not factually sufficient to apprise her of what her role was to have been or her specific involvement in the offense of the murder for remuneration to which she agreed with others to commit.2

The judgment is reversed and the cause remanded.

. Sec. 15.02, V.T.C.A. Penal Code provides:

“(a) A person commits criminal conspiracy if, with intent that a felony be committed: (1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and (2) he or one or more of them performs an overt act in pursuance of the agreement.”

Sec. 19.03, V.T.C.A. Penal Code provides:

“(a) A person commits an offense if he commits murder as defined under Section 19.-02(a)(1) of this code and:
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(3)the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration.”

. This is not a case involving a defect of substance which goes to the failure of the indictment to allege an offense, American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974), nor is this the case where an attack is made upon the failure of the indictment to set out the elements of an underlying felony offense. See Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976); Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976).