dissenting.
I dissent. Plainly, any notion that the indictment was legally sufficient is untenable in view of the most recent decision in point from the Court of Criminal Appeals. DeVaughn v. State, 749 S.W.2d 62 (Tex.Crim.App.1988). With respect to a harm analysis, the Court of Criminal Appeals has yet to provide many specifics to be applied in determining harm. Insofar as the case in bar is concerned, the record is insufficient to affirmatively demonstrate a lack of harm. Therefore, in accordance with the command of TEX.R.APP.P. 81(b)(2), we must hold in favor of appellant and reverse.
THE INDICTMENT CONTAINED A NOTICE DEFICIENCY PROPERLY POINTED OUT BY MOTION TO QUASH
In his pro se motion to quash, appellant alleged that “[t]his indictment fales [sic] to give defendant precise notice of offense with which defendant is charged. It is for lack of describing the manner and means, verbally or bodily, as to how the defendant threatened to kill the said T.D. Weeks” [Emphasis added.]
Following the overruling of his motion to quash, appellant entered a nolo contendere plea pursuant to a plea bargain agreement. The sum total of the evidence1 was a written stipulation, signed by appellant, nine lines in length, tracking, almost verbatim, the words of the indictment (quoted at 355). From reading the evidence, we know nothing more concerning the manner and means of. communicating the threat than we do from reading the indictment. There was no admissible evidence that appellant, in a face-to-face encounter with the complainant officer, directly and personally communicated to his victim, as identified, a threat to kill.
Doyle v. State, 661 S.W.2d 726 (Tex.Crim.App.1983) reversed a retaliation conviction for failure of the indictment to specify the manner and means whereby the threat in question was communicated to the intended victim. Id. at 730-31. Doyle controls here.
An indictment will not suffice against a properly drawn motion to quash unless the indictment alleges everything which the State is burdened to prove in order to survive a directed verdict.2 See TEX.CODE CRIM.PROC.ANN. art. 21.03 (Vernon 1966) (“Everything should be stated in the indictment which is necessary to be proved.”)
It is clear from Doyle that in a prosecution for retaliation by threat under § 36.06(a) of the Texas Penal Code, the State must allege and prove not only that the threat was made, but that it was communicated; it must further allege and prove the manner and means of communication. Doyle, 661 S.W.2d at 730. This the State failed to do.
If a defendant is arrested for a traffic violation and lawfully searched, he is subject to prosecution for any illegal drugs found in his pocket. A threat to kill a specific public official, written on a slip of paper and also found in the defendant’s pocket, would be no offense without evidence that the threat was communicated. In the case at bar, it likewise necessarily follows that manner and means of communication was an essential part of the State’s case. The indictment contained a notice defect for failure to allege whether the *359communication was oral or written, made face to face, over the telephone, or expressed to a third person.
Based solely upon knowledge of human events, it would not be unreasonable to assume that the threat was oral, that it was conveyed in a person-to-person encounter with the identified victim, and that it was not conveyed to or through a third person. However, the law of criminal pleading does not deal in assumptions, even reasonable assumptions. It is not sufficient for the indictment to create an assumption as to the elements of the offense. The elements, particularly the manner and means whereby the offense was committed, must be fully pleaded. Jeffers v. State, 646 S.W.2d 185, 188 (Tex.Crim.App.1981).
Doyle remains viable as authority with respect to the nature of a notice defect in an indictment. The primary authority in Doyle was Jeffers v. State, 646 S.W.2d 185 (Tex.Crim.App.1981). The subsequent case of Adams v. State, 707 S.W.2d 900 (Tex.Crim.App.1986) declared Jeffers overruled to the extent that it conflicted. Id. at 903. However, the underpinnings of Jeffers are still intact. Doyle quoted Jeffers and its citation of long established authority as follows:
When considering a motion to quash, it is not sufficient to say that the accused knew with what offense he was charged; rather, the question presented is whether the face of the instrument sets forth in plain and intelligible language sufficient information to enable the accused to prepare his defense....
661 S.W.2d at 730 (citations omitted). The Doyle court further declared:
Appellant’s case is governed by Jeffers. The indictment did state the nature of the threat made and the name of the public servant threatened. But like the indictment in Jeffers the indictment here did not specify the manner or means whereby the offense was committed. Appellant’s alleged threat could have been conveyed in a number of ways, including: face to face in person, over the phone directly, through a third party, or through the mail. In fact, at trial it was established that the threat against Judge Gibbs was made to Officer Pruitt. Nothing whatsoever in the indictment suggested as much.
Appellant’s motion to quash entitled him to the allegation of facts sufficient to bar a subsequent prosecution for the same offense and sufficient to give him precise , notice of the offense with which he was charged. We conclude the trial court erred in overruling appellant’s motion to quash.
661 S.W.2d at 730-31 (citations omitted).
Any doubt that Adams relieved the State of the long established burden to plead manner and means, as emphasized in Jef-fers, was dispelled by the subsequent opinion in DeVaughn v. State, a burglary case wherein the State pleaded that the defendant entered a habitation “and therein attempted to commit and committed theft” without effective consent of the owner. DeVaughn v. State, 749 S.W.2d 62, 64 (Tex.Crim.App.1988) (indictment held quashable for failure to describe personal property taken and owner of said personalty; ownership of personalty cannot be presumed to be identical with the ownership of the premises).3 DeVaughn states:
Although cursory examination of our pri- or treatment of claims alleging insufficient notice from the face of an indictment may give the impression of inconsistency, a closer analysis reveals that such cases are divisible into categories contingent upon a variety of factors, including, but not limited to, the statutory *360description of the prohibited conduct and whether the notice deficiency complained of describes an act or omission by the accused.
Id., at 68 (emphasis added). DeVaughn proceeded to quote from Ferguson v. State, 622 S.W.2d 846, 851 (Tex.Crim.App.1981) (on reh.) as follows:
... [I]t is clear that even though an act or omission by a defendant 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 State must allege the particular manner or means it seeks to establish.
DeVaughn, at 69. By his motion to quash, appellant Hodge sought information as to an act or omission of which he, the accused, was charged. As with the theft pleading in DeVaughn, there is more than one manner or means to commit the offense of retaliation: orally, in writing, over the telephone, through a third person, etc. The manner and means must be alleged in response to a proper motion to quash.
On authority of King v. State, 594 S.W.2d 425, 426 (Tex.Crim.App.1980), DeVaughn holds:
[Wjhen that aggravated conduct may be directed at a person other than the ultimate victim of the crime alleged, the specification of that person is not an essential element of the underlying offense, but rather a fact necessary to provide notice, to which the accused is entitled, should he request it by means of a timely filed motion to quash.
DeVaughn, at 70. DeVaughn further declares:
[I]t is by no means a necessary conclusion that appellant took or attempted to take property from the owner of the premises he was alleged to have entered unlawfully. Thus, once appellant re- . quested the name of the individual from whom he allegedly took property or attempted to take property during a burglary, his constitutional presumption of innocence, coupled with our prior holding in King v. State, supra, and its progeny, mandate that the State provide such information crucial to appellant’s defense.
Id., at 70. In Adams, the notice deficiency was not a manner and means deficiency. The prosecution was for exhibiting obscene material, and the defendant demanded the right to know which of two similar movie films seized by the police would be offered in evidence at his trial. DeVaughn has distinguished Adams on this basis. It follows that the case before us is governed by DeVaughn, not by Adams. It likewise follows that the indictment before us was quashable for failure to plead manner and means of communication.
THE HARM ANALYSIS MUST BE RESOLVED IN FAVOR OF APPELLANT
Clearly, Adams requires that no case may be reversed on account of a notice defect in the indictment without undertaking a harm analysis. In Adams, the Court of Criminal Appeals found a lack of harm in the State’s failure to specify which of the two allegedly obscene movies that had been seized would be placed in evidence from the fact that the acts depicted were virtually identical. Adams, 707 S.W.2d at 904. Such analysis is of very little assistance in determining harm for failure of the indictment to allege manner and means. Unfortunately, the DeVaughn court elected not to provide any guidance in determining harm; the harm question was remanded to the court of appeals. A single-judge dissent argued no harm on the basis of the overwhelming evidence of guilt.
Our majority has found three entirely separate grounds to declare a want of harm: (1) the fact that appellant was in apparent possession of police reports purportedly relating to the offense charged at 357; (2) the fact that appellant received a “minimal sentence” (at 357); and (3) a conclusion by the majority that appellant had no further use for the information after having decided to enter into a plea bargain at 357.4
*361The majority, at the outset of its discussion concerning harm, acknowledges the well established rule that “[i]n the face of a timely motion to quash, the indictment must allege on its face the facts necessary ... to give the defendant notice of precisely what he is charged with” at 355. The majority’s ruling on harm proceeds to demolish this time-honored rule. The majority has notified the State that if it will but hand to the defendant a copy of a police report describing the offense in greater detail, the State has negated any requirement that it plead its case in accordance with the established law. The law of criminal pleading may not so easily be cast into oblivion.
The rule that the probata must follow the allegata is too well recognized to question. Is the majority to be construed as holding that where the defendant is handed a copy of a police report in lieu of a legally sufficient indictment, a directed verdict must ensue if the probata fails to follow the police report? Of course not!! A police report is not the functional equivalent of a properly detailed indictment. It necessarily follows that the State cannot so conveniently cure its failure to secure from the grand jury a properly drawn indictment. Adams and the DeVaughn dissent hold that the evidence, the final argument, the verdict, and the punishment may be reviewed in determining harm. The list may not be expanded to include copies of police reports handed to the defendant; any such ruling virtually eliminates the requirement of a proper criminal pleading.
One of the serious problems in applying a harm analysis to notice deficiencies in the indictment is the fact that the indictment is drawn and presented some time before the evidence is heard. The motion to quash is likewise prepared and presented on behalf of a presumed innocent defendant demanding to know in advance of trial what evidence will be offered against him. Likewise, the trial court must rule thereon without knowing what evidence will be presented. Adams and the DeVaughn dissent present the message that the evidence when presented, if it be of a certain nature, may cure an erroneous ruling even though neither the presumed innocent defendant nor the trial court knew the nature of the evidence at the time of the ruling.
The problem is further compounded in the case at bar because no live evidence was ever heard, only a conclusory stipulation parroting the words of the indictment. The manner and means of communication of the threat to kill Officer Weeks remains judicially unknown. Thus, we are deprived of a meaningful opportunity to apply a weighing-the-evidence approach indicated by Adams and by the DeVaughn dissent.
This writer is wholly unwilling to accept the disparaging view of the prosecution manifested by the majority opinion. The majority would apparently take the view that the case was not vigorously prosecuted and that appellant, through strident advocacy or otherwise, managed to wear down a half-hearted prosecution and obtain plea bargain punishment far less than was really justified by the evidence available to the State.
Such approach must be rejected. A better view, based on this scanty record, is that the evidence available to the prosecution was minimal and that the State, even though vigorous, determined, and well-prepared, recognized a strong likelihood of an acquittal and, faced with this bitter alternative, agreed to reduce a possible life sentence down to a two-year term. Any other approach would unjustifiably denigrate our *362sworn public officials, charged with the duty to zealously prosecute all crimes committed within their jurisdiction. Lacking evidence to the contrary, we must always presume that our officers have fulfilled their duties, both vigorously and in full compliance with the law.
This line of reasoning inevitably leads to the conclusion that the evidence against appellant was weak. The conclusion is fortified by the fact that a mistrial was entered in this case on January 12, 1987 at 355. We have no statement of facts from that trial and know nothing of the evidence adduced. However, we know judicially that mistrials are much less common when the evidence of guilt is overwhelming. Neither, insofar as known, has it ever been held that a defendant must bring forward a statement of facts, not only from the trial where he was convicted but also a statement of facts from a previous trial where no verdict was reached. Neither Opdahl v. State, 705 S.W.2d 697 (Tex.Crim.App.1986), nor Craven v. State, 613 S.W.2d 488 (Tex.Crim.App.1981), goes to this length.
Appellant Hodge has brought forth a complete statement of facts. The deficiency is not in the statement of facts. It is in the evidence at the trial (a plea hearing is a trial) wherein a conviction resulted. Specifically, the deficiency is in the State’s evidence. In the trial court below, the State failed to present overwhelming evidence of guilt or present any other evidence from which we might conclude that appellant sustained no harm from the notice deficiency in the indictment. The most logical deduction that can be taken from this scanty record is that appellant was, indeed, harmed in view of the fact that he sustained a conviction on the basis of weak evidence.
The majority’s third reason for its no-harm ruling — that appellant had no need for notice after deciding to enter into a plea bargain — must also be rejected. As pointed out in Craven, TEX.CODE CRIM. PROC.ANN. art. 44.02 expressly promises to a criminal defendant that he may, after a plea of guilty or nolo contendere, have an appeal upon “matters which have been raised by written motion filed prior to trial.” Craven, 613 S.W.2d at 489. By its holding, the majority would completely denude a right expressly provided by the legislature.
Further, we must recognize that the decision to accept the plea bargain came after, not before, appellant’s motion was overruled. It is one thing to hold that harm arising from the erroneous refusal to quash a notice-deficient indictment must be weighed in light of the entire record; it is quite another to hold that a strategic decision made by the defendant after the erroneous ruling has been made defeats the right to obtain appellate relief from that harm. Certainly, we cannot know on this abbreviated record what considerations impelled the decision on appellant’s part to enter into a plea bargain. The fact that the court erroneously overruled his motion to quash could have contributed to that decision. For each of the reasons just pointed out, we must exclude from our harm analysis the fact that appellant decided to enter into a plea bargain. Although the point was not expressly decided therein, it is to be noted that the Craven court refused to hold that the mere fact that a plea bargain has been effected would deprive the defendant, through a no-harm analysis, of the right to appeal a notice deficiency in the information.
The foregoing discussion brings into focus a crucial question not yet answered in the recent wave of cases holding that neither error in the indictment nor error in the court’s charge to the jury is reversible in the absence of harm. Who has the burden to prove harm or the lack of it? The majority has erroneously held that appellant “must come forward with some factual justification” that affirmatively establishes that he suffered harm. At 357. By logic, the burden must fall upon the State as the beneficiary of an erroneous ruling to show that the defendant was not harmed thereby. After all, it is almost uniformly true that the State has caused or contributed to errors that appear in criminal pleadings. Further, the State has received express notice from the defendant’s motions and objections of the existence of the error; *363and it has, in the typical instance, resisted the defendant’s objections. When the appellate court holds that the trial court erred, sound policy requires that the State demonstrate to the appellate court that the error was harmless; otherwise, it must suffer a reversal.
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), is, beyond doubt, the leading American authority on harmless error:
Certainly error, constitutional error ... casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.
Id. at 24, 87 S.Ct. at 828.
It is to be noted that Chapman involved both erroneous jury argument and an erroneous charge. Id. at 19, 87 S.Ct. at 825. The Supreme Court applied the same standard in both instances, harmless-beyond-a-reasonable-doubt. It is difficult to conceive why any different standard should apply with respect to error concerning a notice deficiency in the indictment. It is the burden of the defendant to call the error to the court’s attention through a timely motion to quash and to secure a ruling thereon. It is also the defendant’s burden to demonstrate to the appellate court that the trial court’s ruling was erroneous. However, when he establishes that the indictment failed to contain the particulars required by law, the burden shifts to the State to demonstrate the lack of harm.
Chapman has been incorporated into Texas practice through TEX.R.APP.P. 81(b)(2):
If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.
Rule 81(b)(2) has been applied in a variety of contexts. It has been specifically applied to the denial of state and federal constitutional rights. The Court of Criminal Appeals has indicated that it is applicable wherever “there is no countervailing procedural rule or statutory provision.” Rose v. State, 752 S.W.2d 529, 532 (Tex.Crim.App.1988).
Our State Constitution provides that the accused may be tried only upon indictment stating “the nature and cause of the accusation against him.” TEX. CONST, art. I § 10. It is provided that no indictment shall be held insufficient “which does not prejudice the substantial rights of the defendant.” TEX.CODE CRIM.PROC.ANN. art. 21.19 (Vernon 1966). However, there is no statutory provision fixing the burden to show harm emanating from notice defects in an indictment. It follows that Rule 81(b)(2) is applicable.
On the record before us, the State cannot carry the burden cast by the rule. There is no showing that the evidence was overwhelming. Neither does the record show any other special circumstance reflecting the absence of harm through the State’s failure to present a proper criminal pleading.
I dissent. The trial court erred in refusing to require that the indictment specifically plead the manner and means whereby the threat upon which this prosecution rests was communicated. Appellant has sustained the requisite harm to entitle him to a reversal. Alternatively, the State has failed to discharge its burden of showing that no harm ensued. The case should be reversed and remanded.
. The majority has gleaned the purported facts of the offense from police reports attached to a motion to dismiss filed by appellant. Needless to say, those papers, never offered as evidence, cannot be considered as evidence.
. The majority has given extensive treatment to the distinction between a notice deficiency in the indictment and a fundamental deficiency. The distinction has little import here (the deficiency complained of was pointed out in a timely motion to quash) except that a fundamental defect might be reversible without the necessity of a harm analysis.
. Personalty situated within a premises is more often than not owned by the owner of the premises. Certainly, proof of ownership of a premises would create a reasonable assumption as to ownership of the personalty therein. However, DeVaughn makes it clear that a reasonable assumption is insufficient. An indictment suffers from a notice deficiency where it only raises the presumption of ownership; ownership must be specifically pleaded. Likewise, it did not suffice in the case at bar for the indictment to raise the assumption that the threat to kill was oral and that it was directly communicated to the identified victim in a face-to-face encounter; the matter had to be specifically pleaded.
. The divergent approaches taken by majority and by the DeVaughn dissent virtually pre-empt the field. Here, the majority would deny relief from a notice-deficient indictment wherever the *361punishment assessed is "minimal.” The De-Vaughn dissent would deny relief where the evidence is overwhelming. If the tests be combined, it follows that quashal errors are only reviewable if the evidence is weak and the punishment heavy. If both of these approaches be declared proper, it follows that the State has been virtually immunized from the consequences of any failure to present a properly drawn pleading.
This dissent urges that any “minimal sentence” approach to the harm analysis must be applied sparingly and with great caution. It is equally logical to argue in most instances with equal force that a "minimal sentence” demonstrates that in the absence of the complained error, a likelihood existed that the appellant would have been acquitted.