Thomas v. State

OPINION ON STATE'S MOTION FOR REHEARING

McCORMICK, Judge.

On original submission this cause was reversed based on a motion to quash. Succinctly stated, the motion to quash directs itself to two statutory elements of theft, to wit: “owner” and “without effective consent.” Appellant argued that, since the statutory definitions include various types of owners and several means of proving lack of effective consent, the indictments should be quashed. The panel agreed with appellant and found reversible error in the trial court’s overruling the motion to quash. We now grant rehearing, and upon reconsideration, find the panel’s holding erroneous.

*161I.

The general rule is that a motion to quash will be allowed if the facts sought are essential to giving notice. However, unless a fact is essential, the indictment need not plead evidence relied on by the State. Smith v. State, 502 S.W.2d 133 (Tex.Cr.App.1973); Cameron v. State, 401 S.W.2d 809 (Tex.Cr.App.1966). Moreover, when a term is defined in the statutes, it need not be further alleged in the indictment. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974); May v. State, 618 S.W.2d 333 (1981).

A.

In Phillips v. State, 597 S.W.2d 929 (Tex.Cr.App.1980), Presiding Judge Onion dealt with a contention almost identical to the one presented today. In that case, the defendant filed a motion to quash attacking the allegations “intent to violate and abuse * * * sexually.” Although sexual abuse encompasses different acts,1 it was wisely held that no error occurred because “the information requested was essentially evi-dentiary, rather than being required for purposes of notice and plea in bar.” Smith, Cameron, American Plant Food, and Phillips all implicitly stand for the same proposition. 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 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. Phillips v. State, supra; May v. State, supra; Parr v. State, 575 S.W.2d 522 (Tex.Cr.App.1978). Thus, only “owner” need be alleged with no further elaboration.

“Effective consent”, as illustrated under V.T.C.A. Penal Code, Section 31.01(4), is not subject to the motion to quash for the identical reason. It is purely evidentia-ry — a matter of proof.2 The State need only allege no consent or no “effective consent.”

B.

Additionally, under Article 21.11, V.A.C.C.P., an indictment is sufficient when it alleges the offense in ordinary and concise language with a degree of certainty as to give the defendant notice of the particular offense and to enable the pronouncement of the proper judgment. Nowhere is the State required to plead absolute factual allegations. See Article 21.04, V.A.C.C.P.

Of equal importance is Article 21.12, V.A.C.C.P., which states:

“When a statute defining any offense uses special or particular terms, indictment on it may use the general term which, in common language, embraces the special term. To charge an unlawful sale, it is necessary to name the purchaser.”

The term “owner” is a general term. At trial, the evidence may reveal that the owner has a particular ownership — title, possession, or greater right to possession. However, Article 21.12 only requires the general term “owner” and not the special type of owner.

C.

The cases cited by the panel decision are inappropriately applied to the case before us. The panel relies on Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977); Cruise v. State, 587 S.W.2d 403 (Tex.Cr.App.1979), *162and Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978). They are inapplicable because they do not involve motions to quash addressed to terms that are already defined in the penal statutes.

In Drumm, the State alleged that the defendant drove his vehicle while his license was suspended under Article 6687b, Section 24, V.A.C.S. The motion to quash inquired as to which of the subsections of Section 24 the State was referring. Section 24 provides for automatic suspension of the driver’s license without notice upon final conviction for any one of several different offenses. Since the information failed to give him notice of which offense the suspension w’as predicated upon, the defendant was denied the opportunity to prepare a defense. The underlying offense is what makes the defendant’s conduct criminal in nature. If the underlying offense is either void or not final, then the defendant’s conduct is not an offense.

In Cruise, the defendant moved to quash an indictment for robbery by causing bodily injury pursuant to V.T.C.A. Penal Code, Section 29.02(a)(1). The motion was not directed at which type of bodily injury as defined under V.T.C.A. Penal Code, Section 1.07(a)(7); rather, it was directed at what acts (i. e., striking, kicking, shooting, or stabbing) caused the bodily injury. Because factual allegations were required to give notice of the defendant’s alleged acts so as to allow him to prepare a defense, the trial court erred in failing to quash the indictment.

The third case, Haecker, involved the quashing of an information alleging the defendant “tortured” an animal. Because the word "torture” can encompass a diverse number of acts, the motion was proper in order to give the accused notice of his conduct — i. e., the acts he allegedly did which were not sufficiently statutorily defined.

The majority relies on these three cases to support the proposition that a term, which is defined in the penal code, must be clarified pursuant to a motion to quash. Of course, some allegations will be so vague as to deny notice to the accused. See, e. g., Amaya v. State, 551 S.W.2d 385 (Tex.Cr.App.1977) (false statement too vague in welfare fraud); Lindsay v. State, 588 S.W.2d 570 (Tex.Cr.App.1979) (“overt act” in conspiracy indictment too vague). However, as stated in American Plant Food and implicit in Phillips, if the term is defined in the statute, the definitions are essentially evidentiary and need not be alleged. The pleading, when alleged in terms of the statute, is rarely insufficient. Article 21.11, supra; Phillips v. State, supra.

II.

We additionally note that the panel opinion makes a fallacious assumption. It assumes that upon reindictment the State is required to allege which type of owner under V.T.C.A. Penal Code, Section 1.07(a)(24), and how consent is “ineffective” under V.T.C.A. Penal Code, Section 31.01(4). This fallacy, of course, ignores conjunctive and multiple count pleadings.

A.

Under Article 21.24, V.A.C.C.P., the Legislature allows multi-count indictments:

“(b) A count may contain as many separate paragraphs charging the same offense as necessary, but no paragraph may charge more than one offense.”

See, e. g., Koah v. State, 604 S.W.2d 156 (Tex.Cr.App.1980). Such pleadings have, of course, passed constitutional muster and do not offend “fundamental” constitutional protections. Ingraham v. United States, 155 U.S. 434, 15 S.Ct. 148, 39 L.Ed. 213 (1884); Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978).

The reason for conjunctive and multi-count indictments is firmly established. In the early case of Boren v. State, 23 Tex.App. 28, 4 S.W. 463 (1887), this Court focused on the distinct purpose:

“... The object is what it appears to be; * * * to vary what is meant to be the one accusation, so as, at the trial, to avoid an acquittal by any unforeseen lack of harmony between allegation and proofs,

*163Also see, Johnson v. State, 52 Tex.Cr.R. 201, 107 S.W.2d 52, 53 (1908); Square v. State, 145 Tex.Cr.R. 219, 167 S.W.2d 192 (1943). More recently, Presiding Judge Onion reaffirmed Boren in an unanimous decision holding that:

“... an indictment may contain as many counts charging the same transaction as is thought necessary to meet the proof as it transpires and prevent a variance. ...”

Ex parte Easley, 490 S.W.2d 570, 571 (Tex.Cr.App.1972). Therefore, it is clear that an indictment may and should be comprised of as many counts as are necessary to meet the contingencies of the evidence.

It is also interesting to note that, under the present case, the defendant was given notice of the “owner”, and lack of “effective consent.” Under the panel’s holding, the State will re-indict and, instead of alleging the terms generally, they will include a conjunctive pleading or a multitude of separate counts alleging the three types of ownership with the nine ways of showing lack of “effective consent.”3 Article 21.24, supra. The indictment may, at least, contain 27 counts instead of one. The resulting pleading will give the defendant no more notice or particularized pleading than he originally received. The particularized “notice” that the panel asserts will result never materializes.

B.

We realize that there is language to the effect that, once a motion to quash is sustained, the State may “precisely distinguish” the alleged conduct. However, the directive to “precisely distinguish” the alleged conduct is not to be applied to those terms in the penal code that have already been statutorily defined. If such a statement were allowed to encompass such terms, then the result has dramatic overtones. It is easy to envision a circumstance where a motion to quash directed at a theft indictment attacks the entire instrument; to wit, the culpable mental state, the owner, the effective consent, any coercion or deception, the appropriation, the property or service, and the deprivation.

Such “particularized” pleadings, of course, ignore the statutory authority given the State under Article 21.24(b), supra.

The alternative available to the State to anticipate all possible variations in proof is multiple counts and conjunctive pleadings and indictments. However, even this method has distinct drawbacks in the face of the panel’s motion to quash. As stated, the State will re-indict utilizing Article 21.24, supra, to cover any contingencies that may arise under the facts. Koah v. State, supra; Ex parte Easley, supra.

The only viable alternative is allowing the trial judge sound discretion in granting a motion to quash. Lamb v. State, 98 Tex.Cr.R. 358, 265 S.W. 1035 (1924). Reaffirmation of this rule allows this Court to review the trial court’s action on a case by case basis. The motion to quash will be granted where the language concerning the defendant’s conduct is so vague or indefinite as to deny the defendant effective notice of the acts he allegedly committed. Haecker v. State, supra; Cruise v. State, supra; Amaya v. State, supra; Lindsay v. State, supra; Phillips v. State, supra.

III.

Regarding the allegation of owner, we can perceive of no situation where the type of owner will either assist or affect the defense. Whether the owner has title, possession, or greater right to possession will not benefit a defendant, and does not go to giving him notice of his alleged act.

The defendant may assert joint title or joint possession but that defense is available regardless of the type of owner alleged. In fact, a defendant’s joint ownership may be ineffective. V.T.C.A. Penal Code, Section 31.10, states:

“It is no defense to prosecutor under this chapter that the actor has an interest in the property or service stolen if anoth*164er person has the right of exclusive possession of the property.”

Moreover, any claim of innocence or ignorance .of the theft is available to the defendant without ownership elaboration. The need to distinguish the type of owner in the pleading is just not necessary.

Summarizing these grounds of error, we hold that the terms “owner” and “effective consent” need not be further clarified. The general terms are neither vague nor indefinite because they are statutorily defined. More importantly, the term “owner” does not go to an act or omission of the defendant. See, V.T.C.A. Penal Code, Section 1.07(a)(1). Since there was no clear abuse of discretion in refusing to quash the indictment, no error is shown.

We now address the other contentions submitted on appeal by appellant.

In two grounds of error, appellant complains that the testimony of the arresting officers concerning ownership of the stolen property (hubcaps) was hearsay. Both officers testified that, after pursuing appellant in a high-speed automobile chase, they apprehended him and returned to the scene of the offense. The officers testified, over hearsay objection, that a Mrs. Traylor identified the hubcaps as coming from her Cadillac.

Even if we were to hold the trial court’s ruling in error, the admission of the hearsay evidence was rendered harmless by the introduction of same or similar evidence in the record without objection. Huff v. State, 560 S.W.2d 652, 653 (Tex.Cr.App.1978). Excluding the alleged hearsay, there is sufficient evidence to prove the Traylors’ ownership. Engraved onto the hubcap was Mr. Traylor’s driver’s license number and the name TRAYLOR. At trial, Mr. Traylor identified the engraved hubcaps as his. The stolen hubcaps were returned to Mr. Traylor after he positively identified them. Accordingly, any error in admission of the hearsay testimony was harmless. Compare, Stallings v. State, 476 S.W.2d 679 (Tex.Cr.App.1972). The grounds of error are overruled.

In three related grounds of error, appellant contends that the prosecutor was allowed to refer to the hearsay information as to ownership during jury argument. During argument, the prosecutor twice referred to Mrs. Traylor’s identification of the hubcaps to the officers. Appellant’s objections were overruled. As previously stated, there is other evidence sufficiently proving the Traylors’ ownership of the hubcaps.

The general rule is that for a jury argument to constitute reversible error it must (1) be manifestly improper, harmful and prejudicial, or (2) be violative of a statute, or (3) inject new and harmful facts into the case. Wiiliams v. State, 607 S.W.2d 577 (Tex.Cr.App.1980). The application of this rule depends on the facts of each case, and necessarily involves viewing the probable effect on the minds of the jurors. Hodge v. State, 488 S.W.2d 779 (Tex.Cr.App.1972). Against this background, we find the prosecutor’s argument referring to hearsay testimony harmless. The ownership of the hubcaps had been independently established. No new or harmful fact was injected into the case. Williams v. State, supra. The grounds of error are overruled.

Ground of error eight contends that the trial court erred in overruling appellant’s objection that the prosecutor’s jury argument constituted unsworn testimony that bolstered a . State’s witness. The complained of argument and objection are as follows:

“... [T]hey got out and they looked over the ledge and then one officer had his binoculars, they told you how the car pulled in facing the Cadillac, and how this man here — now, Officer Taylor — I mean, Officer Ledbetter was very honest and if he wasn’t—

“MR. MITCHELL: Objection, Your Hon- or, that is bolstering of the witness.

“MR. EUBANKS: It is a reasonable deduction from the testimony.

“MR. MITCHELL: Excuse me, my objection is before the Court.

“THE COURT: Overruled.

“MR. MITCHELL: Note our exception.

*165“MR. EUBANKS: It is a reasonable deduction from the evidence that he was very honest and he could have told you that he saw this man but he didn’t, he said he couldn’t see, he, himself, could not see that well, but he did know that two black males got out of the car, the driver and the passenger, ...”

The statement of the prosecuting attorney’s use of the word “honest” may be bolstering of the testimony of the officer. Basek v. State, 163 Tex.Cr.R. 632, 294 S.W.2d 810 (1956). Usually, if the unsworn statement goes to disputed facts or if the credibility of the witness is a critical issue, then the alleged bolstering may require reversal. Menefee v. State, 614 S.W.2d 167 (1981). However, in the case before us, the alleged bolster went to the uncontested inability of the officer to recognize appellant, not to disputed facts or critical credibility. Menefee v. State, supra. The argument cannot be said to have prejudiced appellant —indeed, such bolstering was favorable to appellant. The ground of error is overruled.

Appellant advances several contentions dealing with the court’s charge applying the law to the facts. He specifically contends that the terms “owner” and “effective consent” involve various facts and the State must elect which set of facts are to be submitted to the jury. A quick review of the record reveals the court correctly defined “consent” and “owner” in the abstract instructions. At appellant’s insistence, the definition of lack of “effective consent” was given.

Appellant ignores the fact that any ambiguity or injection of the “effective consent” issue was at his own request. Since there was no evidence of any consent, much less ineffective consent, the trial court had limited “consent” as: assent in fact, whether express or apparent. V.T.C.A. Penal Code, Section 1.07(a)(9). Accordingly, appellant may not now complain of possible prejudicial effects from a charge he himself requested. Ayers v. State, 606 S.W.2d 936 (Tex.Cr.App.1980); Cadd v. State, 587 S.W.2d 736 (Tex.Cr.App.1979).

Considering the desired limitation on the term “owner”, we find no error. Compare, Jackson v. State, 571 S.W.2d 1 (Tex.Cr.App.1978) (charge on term “appropriate” not an enlargement on allegation in indictment of “exercise control”). Moreover, the evidence supports a finding of all three types of ownership under Section 1.07(a)(24), supra. Even if we were to find appellant’s argument persuasive, the court’s general term “owner” charged on all theories supported by the evidence. Sullivan v. State, 112 Tex.Cr.R. 406, 16 S.W.2d 1086 (1929). No error is shown.

Next, appellant challenges the action of the trial court in overruling his objection to the charge. The indictment alleged theft by exercising control over property other than real property without the owner’s effective consent. V.T.C.A. Penal Code, Sections 31.01(5), 31.03(a), (b)(1). The jury charge instructed on theft by appropriating the property. The definition of “appropriate” in Section 31.01(5), supra, includes “to acquire or otherwise exercise control over property other than real property.” This definition was the only one given in the abstract charge.

In Jackson v. State, supra, this Court held that the definition of “appropriate” in the jury charge restricts its use to the means alleged in the indictment, to wit: exercise control. The charge using appropriate, therefore, was not an enlargement upon the allegations in the indictment and could not be deemed fundamental error. We reaffirm the holding of Jackson that appropriate is not an enlargement upon the allegation of exercise control. Accordingly, the ground of error is overruled.

Appellant’s last ground of error attacks the sufficiency of the evidence. We note, however, that this contention was dealt with on original submission. We defer to the panel’s proper disposition of the issue. The ground of error is overruled.

The State’s motion for rehearing is granted, and the judgment is affirmed.

ODOM, J., dissents.

. Under V.T.C.A. Penal Code, Section 21.04, sexual abuse may occur either through intercourse or deviate sexual intercourse. Under Section 21.01(1) deviate sexual intercourse can occur in six different manners. Sections 21.-01(3) allows sexual intercourse to be performed in only one manner. Thus, there are seven different means to commit sexual abuse.

. We agree with much of Judge Clinton’s analysis concerning “effective consent.” Section 31.01(4) negating effective consent is not to be interpreted as an exhaustive list. The State need only allege the “standard element of the offense of theft, all else with respect to it becomes purely evidentiary — a matter of proof.”

. Under Section 31.01(4), there are eight ways to show lack of “effective consent.” The ninth method is showing total absence of consent. Again, we refer to footnote 2.