Thomas v. State

*166 CLINTON, Judge,

concurring in part and dissenting in part.

The Opinion on State’s Motion for Rehearing uses such a distressing mix of legal concepts to reach the result desired in overruling the fifth ground of error that much mischief is sure to follow. 1 First, however, I express my reasons for disagreeing with the panel’s reasoning in sustaining the fourth ground of error.

It will be recalled that the indictment charges appellant exercised control over four hubcaps “without the effective consent” of their owner et cetera. The motion to quash complained of lack of notice with respect to the matter of lack of effective consent, and appellant pointed to what the panel opinion characterizes as “the expansive definition of effective consent” in finding that the motion to quash should have been granted for that additional “defici-enc[y] in the notice.” I respectfully submit that reasoning is untenable.

Theft, as alleged in the case at bar, is unlawful appropriation — by one means or another — with intent to deprive the owner of property and “without the owner’s effective consent,” V.T.C.A. Penal Code, §§ 31.-03(a) and (b). Thus, if the offending conduct and the specific intent are alleged and proven, all that remains is that the owner did not effectively consent to the transaction. That allegation may be proven in many ways, so the definition of “effective consent” in id., § 31.01(4), 2 though “expan- s/ve,” 3 certainly does not purport to be limitation on manner or means which may be shown. A purse snatcher, for example, takes it without effective consent of its owner, for that is inherent in his act of snatching. So when an indictment alleges, as here, “without effective consent” it does not necessarily mean whatever “consent” was given is ineffective on account of one of the negative situations set out in the definition. It seems to me that once the State alleges this standard element of the offense of theft, all else with respect to it becomes purely evidentiary — a matter of proof. 4 To hold that a motion to quash is good, under Brasfield v. State, 600 S.W.2d 288, 298 (Tex.Cr.App.1980) (Opinion on Rehearing), will require more makework. 5 Yet, in the case of the purse snatcher, the grand jury has already alleged all there is to say about the offense, legally and factually.

I, therefore, agree to granting the State’s motion for rehearing with respect to the fourth ground of error. Now I turn to the majority’s treatment of the fifth ground of error.

First it states, “The general rule is that a motion to quash will be allowed if the facts sought are essentia] to giving notice.” 6 The highly doubtful assertion, I note, is not followed by any cited authority. All cases in the balance of the paragraph are rooted in one which is cited, Cameron v. State, 401 S.W.2d 809 (Tex.Cr.App.1966) — a decision that predates the present penal code and *167 does not even purport to apply pleading rules of the code of criminal procedure. 7 The meaning of Cameron v. State, supra, in this respect, was clearly discerned by Judge Odom, writing for the Court in Smith v. State, 502 S.W.2d 133, 134 (Tex.Cr.App.1973) — also among the cases cited by the majority in its mix of concepts — in overruling the first ground of error contending that “the indictment in this cause is fatally defective because there is no allegation that the truck in question was actually appropriated;” it was, accordingly, observed, “No motion to quash the indictment was filed prior to trial,” and in that context the Court found that “the indictment in question did not need to allege that appellant appropriated the truck.” The point is obvious: The test for a motion to quash is not supplied by the standard of testing an indictment for fundamental error. American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974) is widely supposed to have made that plain, but the majority has missed the point. 8

Phillips v. State, 597 S.W.2d 919 (Tex.Cr.App.1980) is seen by the majority as “dealpng] with a contention almost identical to the one presented today.” The majority is myopic if it cannot perceive any distinction between an allegation of a mental state which accompanies conduct, 9 a specific intent, on the one hand, and an allegation of ownership that fails to delineate whether the named person is an owner because he has title to the property, has possession of the property or has a greater right to possession of the property than the accused, V.T.C.A. Penal Code, § 1.07(a)(24). Though, as the majority observes, “there are seven different means to commit sexual abuse,” note 1, an intent to violate or abuse another sexually as so ephemeral — usually only inferable from words or deed — that the grand jury can hardly be expected to do more than allege as a material fact the particular intent prescribed by statute, Article 21.05, 10 V.A.C.C.P., and leave the inference to be drawn by the factfinder from whatever one or more means, if any, are shown by the proof. 11 On the other hand, mode of ownership is not a matter of intent at all; it arises a state of preexisting facts, perhaps mixed with some principles of law, that go to make one an owner from title, from possession or from greater right of possession, respectively. Ownership by legal definition is thus trifaceted, but each mode may well be mutually exclusive of the other, and there is little transient about either. Accordingly, I do not regard the holding in Phillips v. State, supra, as dispos-itive of the quite distinct issue presented by the indictment and motion to quash in the case at bar.

*168 Stating in an indictment that a named person is “owner” of property is to allege a legal conclusion. Given the special definition of “owner” in V.T.C.A. Penal Code, § 1.07(a)(24), and all its implications, an exception that the allegation is not sufficiently certain because it fails to allege “the nature of the ownership” invokes the constitutional right of an accused “to demand the nature and cause of the accusation against him,” Article I, § 10, Constitution of the State of Texas. To say, as does the majority that particularity of ownership “does not assist or effect an accused in preparing his defense” is to ignore the demonstrated complexity of the problem confronted by this Court in, e. g., Compton v. State, 607 S.W.2d 246 (Tex.Cr.App.1980). Certainly the matter is not evidentiary until the proper legal theory has been sorted out by the State and identified to the accused prior to trial. 12

To overruling ground of error five, I respectfully dissent.

ROBERTS, J., joins.

. We all know that the bench and bar are anxiously awaiting the resolution of both issues presented in this cause. The opinion for the Court produces a ruling, alright, but its underlying rationale is terribly flawed in twisting principled rules of pleading a criminal accusation into propositions through which it seeks to support a result. The Court has not heard or read the last of this matter, I fear.

. Shorthandedly, the four negatives to effective consent are:

(A) induced by deception or coercion;

(B) given by one known to be without authority to consent;

(C) given by one known to be incapable of consenting;

(D) given solely to detect commission of an offense.

. All emphasis is mine unless otherwise indicated.

. Having written that, however, it occurs that an exception to the indictment in a motion to quash which asserts, say, that appropriation at issue was with consent and calls upon the State to elucidate which of the four negatives rendered consent ineffective, might be good. The State would then, in effect, be directed to join issue on a matter of notice not initially presented clearly in the indictment.

. A feature of Brasfield v. State, supra, to which I objected then.

. The underscoring is emphasis in the original opinion.

. All Cameron v. State, supra, does is to reject a denial of due process challenged by restating that the Court “remain[s] convinced that the decisions by this court holding that a conviction for theft by false pretext may be had upon a general indictment for theft are sound and should not be overruled” and, therefore, “we adhere to the holding that such facts and circumstances are evidentiary matters which need not be alleged.”

. Rather, the majority picks out some dicta in note 3 at page 604, and pretends that American Plant Food holds that “when a term is defined in the statutes, it need not be further alleged in the indictment.” The attack on the charging instruments there was that they were general, vague and indefinite, especially “in failure to allege the method by which the pollution reached the waters polluted.” The Court noted obliquely that “discharge” is defined in the statutes and need not be further alleged and also, “Further allegations as to how the substance was transported from its point of origin at which it was discharged would be merely evidentiary,” inviting comparison to Cameron v. State, supra. Similar treatment was given to the term “industrial waste.”

. V.T.C.A. Penal Code, § 1.07(a)(8), states, “ ‘Conduct’ means an act or omission and its accompanying mental state.” When forbidden by the code, it is an element of the offense within the meaning of id. (13)(A).

. “Where a particular intent is a material fact in the description of the offense, it must be stated in the indictment...”

. I do not understand the specific intent to violate or abuse sexually is circumscribed by even the seven means ascertained by the majority, or by any means being actually accomplished. It seems to me that such an intent may be found though none of the statutorily suggested means or any other manner is shown.

. As to the business in Part II of the majority opinion about “conjunctive and multiple count pleadings,” surely it is all said in jest. What selfrespecting prosecuting attorney would have read to the jury at the outset such indicia of the State’s own uncertainty of what the accused is supposed to have done?