concurring.
For the following reasons, I believe the majority’s discussion of McClain v. State, 687 S.W.2d 350 (Tex.Cr.App.1985), is circular and wholly unnecessary. McClain was not cited or relied upon by the Court of Appeals, nor was it mentioned in appellant’s petition for discretionary review, or either of the briefs before this Court. As the majority opinion ultimately proves, the discussion of McClain is gratuitous dicta which adds nothing to the settled jurisprudence of this State.
I.
Appellant contends “the rule of recent unexplained possession does not apply in cases of receiving stolen property.” See page 587.1 Rather than directly addressing appellant’s contention, the majority launches into a discussion of McClain, to establish the general proposition that, in order to plead theft, “the State has only to allege that the accused appropriated property unlawfully with intent to deprive the owner of it.” Majority Opinion at 588. However, the majority fails to recognize that this case involves the sufficiency of the evidence, not the sufficiency of the charging instrument. Only at the conclusion of its opinion does the majority realize the State specifically pled the property was unlawfully appropriated under Tex.Penal Code Ann. § 31.03(b)(2) and was bound to prove that allegation.2 Therefore, the discussion of McClain is not necessary to the resolution of any issue before us. Accord*590ingly, it should be treated purely as dicta and not binding on any future decision of the Court. Woolridge v. State, 827 S.W.2d 900, 905 (Tex.Cr.App.1992).
II.
The majority’s discussion of McClain presents a circular argument that serves only to confuse a settled area of our law, namely, that where the State alleges matters “descriptive of the identity of the offense charged, it is incumbent upon the State to establish such allegations by evidence.” Burrell v. State, 526 S.W.2d 799, 802-803 (Tex.Cr.App.1975). The majority, relying on McClain, states:
... To plead theft, therefore, the State has only to allege that the accused appropriated property unlawfully with intent to deprive the owner of it.
Majority Opinion at 588.
This statement is certainly true in light of Studer v. State, 799 S.W.2d 263, 272-273 (Tex.Cr.App.1990), wherein we essentially held that which purports to be a valid charging instrument is, without objection, a valid charging instrument. See also, Ex parte Morris, 800 S.W.2d 225, 227 (Tex.Cr.App.1990) (Failure to object to faulty indictment before trial will forever waive error); and, Ex parte Gibson, 800 S.W.2d 548, 551 (Tex.Cr.App.1990) (“[I]f the instrument comes from the grand jury, purports to charge an offense and is facially an indictment, then it is an indictment for purposes of Art. V., § 12(b), and its presentation by a State’s attorney invests the trial court with jurisdiction to hear the case”). However, the majority erred by stating:
The manner in which he came to possess it, whether by initially taking it from the owner or by subsequently receiving it from someone who did, is not an essential element of theft under current law.3
******
... And now, because the receipt of stolen property is no longer an offense requiring proof of different statutory elements, it follows that proof of unexplained possession is also sufficient for conviction in cases where the accused in fact received the stolen property from someone other than the alleged owner.
Majority Opinion at 588.
This interpretation of § 31.03(b)(2) is erroneous. Just because the particular method of unlawful appropriation need not be plead, does not mean the manner of unlawful appropriation is not as essential element. Unlawful appropriation is an essential element in any theft case. § 31.03 provides in part:
(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of the property.
(b) Appropriation of property is unlawful if:
(1) it is without the owner’s effective consent;
(2) the property is stolen and the actor appropriates the property knowing it was stolen by another; or
(3) property in the custody of any law enforcement agency was explicitly represented by an law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.
If the State purports to charge the offense of theft under § 31.03, without alleging the specific method of unlawful appropriation, the charging instrument is subject to a motion to quash. In Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977), we held:
Although challenge to an accusation for failure to give adequate notice on which to prepare a defense must be asserted in a timely fashion ... when properly asserted with adequate statement of the manner in which notice is deficient; fundamental constitutional protections are invoked. Because of the fundamental notions of fairness that require adequate notice of the nature of the charges against the accused in our system of justice, a timely claim of inadequate notice requires careful consideration. This calls for examination of the criminal ac*591cusation from the perspective of the accused, as contrasted to the measurement of its allegations against the statute that is the test for a claim that no offense is alleged.
Drumm, 560 S.W.2d at 946-947. See also, Miller v. State, 677 S.W.2d 737, 740 (Tex.App.—Corpus Christi 1984).
In Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1981) (opinion on rehearing), we set forth our general rule concerning the State’s pleadings:
... The Legislature has established offenses and the elements constituting those offenses. The terms and elements are further defined within the Penal Code. Under these cases, the definitions of the terms and the elements are essentially evidentiary and need not be alleged in the indictment. This is, in effect, the general rule that, subject to rare exceptions, an indictment which tracks the words of the penal statute in question is legally sufficient.
Thomas, 621 S.W.2d at 161 (emphasis in original). However, § 31.03 is subject to that “rare exception.” As we held in Gibbons v. State, 652 S.W.2d 413 (Tex.Cr.App.1983), a charging instrument which:
... contains a necessary allegation of an act by the accused which comprises more than one statutorily defined means of performance ... but the indictment fails to specify which of the statutory definitions of the act is relied upon, the indictment is subject to a motion to quash. [Emphasis in original.]
Gibbons, 652 S.W.2d at 415. See also, Geter v. State, 779 S.W.2d 403, 405-406 (Tex.Cr.App.1989); Gorman v. State, 634 S.W.2d 681 (Tex.Cr.App.1982); Solis v. State, 787 S.W.2d 388 (Tex.Cr.App.1990); Reynolds v. State, 723 S.W.2d 685, 686 (Tex.Cr.App.1986); Dismore v. State, 658 S.W.2d 684, 685 (Tex.App.—El Paso 1983); and, Hogue v. State, 752 S.W.2d 585, 590 (Tex.App.—Tyler 1987).
Therefore, while it is not necessary for the specific method of unlawful appropriation to be pled, in the face of a timely motion to quash, the State will necessarily be required to plead one of the types of unlawful appropriation in § 31.03(b). Once pled, as the majority correctly notes, the allegation of the manner of the unlawful appropriation “must be proven to sustain conviction.” Majority Opinion at 588 (and cases cited therein). On the appeal of such a case, we will be constrained to hold, as we have today, that evidence of unexplained possession of recently stolen property is insufficient to prove unlawful appropriation under Tex.Penal Code Ann. § 31.-03(b)(2). See, Hynson v. State, 656 S.W.2d 460 (Tex.Cr.App.1983).
Because the majority’s discussion of McClain is circular and wholly unnecessary, I can only concur in the result.
. We granted the following grounds for review:
1. The Court of Appeals opinion is in conflict with the holding of this Court in Walker v. State, 539 S.W.2d 894 (Tex.Crim.App.-1976); Pool v. State, 528 S.W.2d 255 (Tex.Crim.App.1975); and Hynson v. State, 656 S.W.2d 460 (Tex.Crim.App.-1983) holding that recent unexplained possession of stolen property does not create a presumption of guilt in the case of receiving or possessing stolen property-
2. The Court of Appeals opinion is in conflict with an opinion of the Court of Appeals of Corpus Christi in Muniz v. State, 663 S.W.2d 660 (Tex.App.—Corpus Christi-1983) no writ, which held without the State showing Appellant knew the property was stolen the evidence was insufficient to show theft by possession of stolen property. The presumption of recent possession did not apply, and 4. The Court of Appeals erroneously held that the Appellant’s requested charge was a misstatement of law which holding is in conflict with Walker v. State, supra; Pool v. State, supra; Hynson v. State, supra; and Muniz v. State, supra.
. The information in this case alleged:
I ... Assistant District Attorney of Hale County ... do ... present, that in the County of Hale in the State of Texas, on or about the 29th, day of May, A.D.1990, one, EDWARD MUNOZ CHAVEZ, did then and there intentionally, knowingly said property was stolen by another, appropriate, by acquiring and otherwise exercising control over, said property which was stolen to-wit: ... of a value of at least two hundred dollars but less than seven hundred and fifty dollars from an unknown person, with the intent to deprive the owner ... of said property_
. All emphasis herein is supplied by the author unless otherwise indicated.