Bosworth v. State

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for felony theft. A plea of guilty was entered *335before the court and punishment was assessed at eight (8) years.

At the outset appellant contends that the court’s admonishment to determine the vol-untariness of the plea was not in compliance with Article 26.13, Vernon’s Ann.C. C.P.

Appellant urges that minimal compliance with Article 26.13, V.A.C.C.P., is not present in that no inquiry is made to determine :

(1) If appellant were influenced by any persuasion.
(2) If appellant were influenced by any delusive hope of a pardon.
(3) If appellant were influenced by any force or threats.

After having the range of punishment for the offense explained to him, appellant told the court he was pleading guilty because he was guilty. Appellant was then asked and answered as follows:

“THE COURT: You are not doing this by reason of fear ?
“MR. BOSWORTH: No, sir.
“THE COURT: You are not doing this because anyone has promised you anything?
“MR. BOSWORTH: No, sir.
“THE COURT: You are doing this voluntarily because you are guilty?
“MR. BOSWORTH: Yes, sir.”

Pursuant to questions by the court, counsel for appellant stated that he had known appellant for almost a year, he was a person of sound mind and definitely had been able to assist counsel in preparing for the hearing.

The court then accepted the plea of guilty.

The judgment recites:

“. . . it plainly appearing to the court that the defendant is sane and uninfluenced by any consideration of fear, or by any promises, persuasion or delusive hope of pardon prompting him to confess his guilt, the said plea of guilty was accepted by the court . . ."

Even though the court did not specifically inquire of appellant as to whether he was prompted to plead guilty because of a delusive hope of pardon nor was he asked if his plea was influenced by persuasion, in view of the entire record and the court’s findings we find the admonitions to be in substantial compliance with Article 26.13, V.A.C.C.P. Espinosa v. State, Tex. Cr.App., 493 S.W.2d 172; Mitchell v. State, Tex.Cr.App., 493 S.W.2d 174; Clayton v. State, Tex.Cr.App., 493 S.W.2d 176; Johnson v. State, Tex.Cr.App., 500 S.W.2d 115; Moreno v. State, Tex.Cr.App., 500 S. W.2d 114.

Appellant contends there is a variance in the indictment alleging that the property was owned by the complainant and in possession of the complainant and the proof offered by the State.

The indictment recites that an automobile over the value of fifty dollars was taken “from the possession of Vincent W. Heyer, hereinafter called complainant, the owner thereof, . . .”

State’s Exhibit No. 1 contains a written judicial confession, admitting all of the elements of the offense and specifically reciting that appellant “did unlawfully and fraudulently take one automobile over value of $50 from Vincent Heyer, without his consent . . . ” Pursuant to stipulation, a written statement of Vincent W. Heyer was introduced in which it was stated that Heyer had custody and control of the vehicle in question. Apparently appellant’s complaint is directed to the allegation of ownership by Heyer in the indictment while the written statement shows that Heyer was a salesman for an auto company and the automobile was in his custody and control. Article 21.08, V.A.C. *336C.P. provides that “where one person owns the property, and another person has the possession of the same, the ownership thereof may be alleged to be in either.” See Joshlin v. State, Tex.Cr.App., 468 S.W.2d 826. No error is shown.

Appellant next contends that the indictment is fatally defective in that the property alleged to have been taken is not described as “corporeal personal property.”

“The omission of the word 'personal’ or ‘corporeal’ in characterizing the property is immaterial where it is otherwise accurately described.” 55 Tex.Jur.2d, Theft, Section 110. The indictment alleged the theft of “one (1) automobile.” Such description was held sufficient in Ward v. State, Tex. Cr.App., 446 S.W.2d 304. No error is shown.

Appellant contends that the allegation in the indictment that the value of the automobile taken is “over the value of $50” is too general. Allegation as to value of property stolen is not descriptive further than as it affects question whether offense is felony or misdemeanor. Keenan v. State, 120 Tex.Cr.R. 616, 48 S.W.2d 264. The reason for alleging value of property stems from the necessity of the indictment showing on its face that court has jurisdiction of the offense. McKnight v. State, Tex.Cr.App., 387 S.W.2d 662. The indictment in the instant case alleges a felony offense and places jurisdiction in the district court. No error is shown.

Finding no reversible error, the judgment is affirmed.

Opinion approved by the Court.