Indictment which failed to allege the manner by which the defendant received bets or offers to bet was insufficient.
How later courts described this case
- Indictment which failed to allege the manner by which the defendant received bets or offers to bet was insufficient.
- indictment defective where manners and means not specified in indictment after motion to quash regarding convictions for gambling promotion
- in a gambling case, the State should have alleged the manner and means the defendant used to receive bets
- original opinion, modified on other grounds on motion for rehearing
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Adams v. State, 1986 Tex. Crim. App. LEXIS 1209 (1986)
646 S.W.2d 185, 187-88 (Tex. Crim. App. [Panel Op.] 1981), overruled on other grounds by Adams v. State, 707 S.W.2d 900
Overruled in part by Walters v. State, 704 S.W.2d 328 (1986)
To the extent that the holding on State’s motion for rehearing in Jeffers, [v. State, 646 S.W.2d 185 (Tex.Cr.App.1983)], bars the further inquiry mandated by Article 21.19, [V.A.C.C.P], the holding in Jeffers is overruled.
The opinion
ON STATE’S MOTION FOR REHEARING
ODOM, Judge.
These are appeals from convictions for gambling promotion. On original submission the judgments were reversed and the indictments were ordered dismissed because the trial court erroneously overruled the motions to quash the indictments for failure to specify the “manner or means” whereby appellant received a bet and offer to bet in each case. We granted leave to file the State’s motion for rehearing in order to examine the applicability of Craven v. State, 613 S.W.2d 488 (Tex.Cr.App.1981), in view of the fact that no statement of facts from the hearing on the motion is in the record. We conclude that Craven v. State, to the extent it created a test for determining the merits of a motion to quash that requires a statement of facts is not sound law and should be overruled.
Craven held that the merits of a motion to quash an indictment for insufficient notice “simply cannot be made without reviewing a statement of facts.” The three cases cited to support that conclusion, including one characterized as “directly in point” (Taylor v. State, 134 Tex.Cr.R. 561 , 116 S.W.2d 392 ), do not support the proposition. The Taylor case disposed of the only bill of exception, relating to the motion to quash, on the merits. Then in a separate paragraph the court observed that no statement of facts was before it, apparently a remark intended to reveal the reason for no discussion of other issues customarily reviewed. See, e.g., Goodale v. State, 116 S.W.2d 390 (Tex.Cr.App.1938); Johnson v. State, 116 S.W.2d 392 (Tex.Cr.App.1938); Horton v. State, 134 Tex.Cr.R. 529 , 116 S.W.2d 394 ; Johnson v. State, 116 S.W.2d 399 (Tex.Cr.App.1938); James v. State, 134 Tex.Cr.R. 530 , 116 S.W.2d 401 .
*189 The test for deciding the sufficiency of an indictment in the face of a motion to quash for insufficient notice is to examine the indictment from the perspective of the accused. Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977). The sufficiency of the indictment to give adequate notice must be determined in light of the presumption of innocence. Drumm, supra. The notion expressed in Craven that an assertion of insufficient notice must be substantiated by evidence presented by the accused and reflected in a statement of facts is contrary to the presumption of innocence and ignores the holding of Drumm, supra. While a statement of facts may shed additional light on the basis that was urged for a motion to quash, it is not prerequisite to reaching the merits of the issue.
Craven, supra, also relied on the requirement of Art. 21.19, V.A.C.C.P., that prejudice to some substantial right of the accused be shown before an indictment is held insufficient. The constitutional right to adequate notice of the charges against him from the face of the indictment is the substantial right invoked by filing a motion to quash for insufficient notice. Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980). To require evidence reflected in a statement of facts to establish insufficient notice is to ignore the requirement that notice appear on the face of the indictment. Examination of the indictment, not the evidence, is the ultimate test.
Craven v. State, supra, is overruled.
The motion for rehearing is denied.