State v. Laird

OPINION

BOB McCOY, Justice.

I.INTRODUCTION

The State appeals the trial court’s order quashing the information in which appel-lee, Jerry Dwayne Laird, was charged with violating the Texas Clean Air Act.1 In its sole point, the State argues that the trial court abused its discretion by granting the motion to quash because the information set forth all of the elements of the offense, sufficiently negated the exceptions to the offense, and provided sufficient notice to Laird of the charges being brought against him. We reverse and remand.

II.BACKGROUND FACTS

On February 7, 2005, the State filed an information alleging that on October 24, 2004, Laird “did then and there unlawfully, intentionally or knowingly cause, allow, or permit outdoor burning.” On June 3, 2005, Laird filed a motion to quash the information, stating that the information failed to give him adequate notice of the charges brought against him because of the vagueness and lack of specificity in the information. On June 29, 2005, the State filed a motion to amend the information, and on August 2, 2005, after hearing arguments on Laird’s motion to quash and the State’s motion to amend the information, the trial court granted both the State’s motion to amend and Laird’s motion to quash. The State’s amended information alleged that Laird “did then and there unlawfully, intentionally or knowingly cause, allow, or permit outdoor burning, to wit: Jerry Wayne [sic] Laird burned domestic and non-domestic waste including an appliance and electrical wire.”

III.Motion to Quash the Information

In its sole point, the State contends that the trial court erred by granting Laird’s motion to quash the amended information.

A. Standard of Review

The rules with respect to the certainty required in an indictment also apply to an information. See Studer v. State, 799 S.W.2d 263, 268 (Tex.Crim.App.1990). The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004). Therefore, we review a trial court’s ruling on a motion to quash an information de novo. Id.

B. Sufficiency of a Charging Instrument

As a general rule, a charging instrument that tracks the language of a criminal statute possesses sufficient specificity to provide a defendant with notice of a charged offense. State v. Edmond, 933 S.W.2d 120, 128 (Tex.Crim.App.1996). The State need not allege facts that are merely evidentiary in nature. Bynum v. State, 767 S.W.2d 769, 778 (Tex.Crim.App.1989). Moreover, when a term is defined in a statute, it need not be further alleged in the indictment. Daniels v. State, 754 S.W.2d 214, 218 (Tex.Crim.App.1988). A motion to quash should be granted only when the language regarding the accused’s conduct is so vague or indefinite that it fails to give the accused adequate notice of the acts he allegedly committed. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex.Crim.App.1988).

C. Disposition

During the pretrial hearing on his motion to quash, Laird made several *670arguments contending that the information was insufficient. In his first argument, Laird asserted that the information spoke only in general terms of the Texas Administrative Code, and that as a result, the information would be insufficient to clearly inform a jury what statute Laird had allegedly violated. He also contended that it would have been difficult for a jury to look up the portion of the law that relates to the offense because the relevant law was available only via the internet and not in book format. However, the purpose of an information is to notify the accused of the charged offense and its elements so that he may properly prepare his defense. Sattiewhite v. State, 600 S.W.2d 277, 282 (Tex.Crim.App. [Panel Op.] 1980) (op. on reh’g). On the other hand, the purpose of the jury charge is to set forth the law applicable to the case for the jury’s use during its deliberation.2 See Tex.Code Cmm. PROC. Ann. art. 36.14 (Vernon Supp.2006); Wilson v. State, 825 S.W.2d 155, 158 (Tex.App.-Dallas 1992, pet. ref'd). The matter of charging a jury is unrelated to the issue of whether an information provides adequate notice to a criminal defendant.

In his second argument, Laird contended that his motion to quash the information should have been granted due to the vagueness of the phrase “appliance.”3 We disagree. The information in this case states that Laird “burned domestic and non-domestic waste including an appliance and electrical wire.” The Texas Administrative Code defines the term “domestic waste,” and it further specifies that “electrical wire” and “appliances” are non-domestic wastes that cannot be burned.4 See 30 Tex. Admin. Code §§ 101.1(26), 111.209(1). As such, these terms did not require further pleading in the information. See Thomas v. State, 621 S.W.2d 158, 161 (Tex.Crim.App.1981) (holding that when a term is defined in the statute it need not be further alleged in the indictment). Therefore, because the terms “appliance” and “electrical wire” merely describe the type of non-domestic waste that Laird was alleged to have burned outdoors, they are descriptive evidentiary matters that the State need not have pleaded in order to provide sufficient notice to Laird. See Curry v. State, 30 S.W.3d 394, 399 (Tex.Crim.App.2000).

Finally, Laird complained that the information did not allege all elements of the offense because it failed to sufficiently negate the exceptions to the offense. An indictment must allege, in plain and intelligible language, all the facts and circumstances necessary to establish all *671the material elements of the offense charged. Garcia v. State, 981 S.W.2d 688, 685 (Tex.Crim.App.1998). Under the penal code, the State must negate the existence of any exception to an offense in the charging instrument, see Tex. Penal Code Ann. § 2.02(b) (Vernon 2003),5 and the negation of an exception to the offense is an element of the offense, see id. § 1.07(a)(22)(D) (Vernon Supp.2006). However, the State need not expressly negate an exception in the charging instrument; it may do so implicitly. See Tarlton v. State, 98 S.W.3d 168, 173 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd).

The exceptions to the rule prohibiting outdoor burning are recorded in the Texas Administrative Code. See 30 Tex. Admin. Code §§ 111.201, 111.205, 111.207, 111.209, 111.211, 111.213. In this case, the information negated the exceptions to the offense by reference to the specific sections where the exceptions are found. See id. The information states,

[T]he outdoor burning was not authorized by the Executive Director of the Texas Commission of Environmental Quality, nor was the outdoor burning authorized by an exception contained in Title 30, Texas Administrative Code Rule Sections 11.205, 11.207, 111.209, 111.211,111.213.6

We hold that this language provided sufficient notice to Laird that the outdoor burning of which he was accused was not permitted by any exception to the law’s prohibition of outdoor burning. Therefore, because the information negated the exceptions to the offense, the information sufficiently alleged all elements of the crime that the State charged Laird had committed.

Contrary to the dissent’s assertion, our conclusion does not directly conflict with this court’s earlier holding in State v. Goodman, No. 2-05-374-CR, — S.W.3d —, 2006 WL 1843485 (Tex.App.-Fort Worth July 6, 2006, no pet.). This court held that the indictment in Goodman failed to give adequate notice because it stated merely that Goodman was charged with burning “illegal burning materials,” but this term did not tell Goodman “what item the State allege[d] he illegally burned.” Id. at-, 2006 WL 1843485 at *4. Here, in contrast, the indictment does tell Laird what items that the State alleges he illegally burned: domestic and non-domestic waste, including an appliance and electrical wire. Unlike the indictment in Goodman, this description does give Laird sufficient notice of the acts that the State has charged him with committing. None of Laird’s contentions constitutes a basis for quashing the State’s information. Accordingly, we sustain the State’s sole point.

IV. Conclusion

Having sustained the State’s point, we reverse the trial court’s order quashing the information and remand the case to the trial court for further proceedings. See Tex.R.App. P. 43.2(d).

DAUPHINOT, J. filed a dissenting opinion.

. See Tex. Water Code Ann. § 7.177 (Vernon 2000).

. The judge delivers to the jury a written charge distinctly setting forth the law applicable to the case. Doyle v. State, 631 S.W.2d 732, 738 (Tex.Crim.App.1980).

. Without reference to authority, Laird also argued that the information was deficient because it failed to state who the "local government entity having jurisdiction” was as well as who held the position of “Executive Director of the Texas Commission of Environmental Quality.” However, not knowing what government entity has jurisdiction over collection of Laird’s domestic waste, or who holds the position of Executive Director of the Texas Commission of Environmental Quality, does not bear on whether the information failed to give Laird adequate notice of the acts he allegedly committed. See DeVaughn, 749 S.W.2d at 67. Thus, we are unpersuaded by this argument.

.Domestic waste is defined in the Texas Administrative Code as "garbage and rubbish normally resulting from the functions of life within a residence.” 30 Tex. Admin. Code § 101.1(26) (2006). Examples of wastes not considered to be domestic waste that cannot be burned are provided by section 111.209 of the Texas Administrative Code. Id. § 111.209(1). This includes such things as tires, non-wood construction debris, furniture, carpet, electrical wire, and appliances. Id.

. Even though the offense of outdoor burning is found in the water code, not the penal code, the penal code’s negation-of-exceptions requirement applies to offenses defined by other laws as well. See id. § 1.03(b).

. It appears that the State mistakenly omitted the number “1” in the first two exceptions’ section numbers.