Opposition Brief — Zapata v. Texas

INTHE hg

SUPREME COURT of the UNITED STATES

OCTOBER TERM, 1973

NO. 73-283

TULES ZAPATA,

Petitioner

VS.

THE STATE OF TEXAS,

Respondent

On Petition for Writ of Certiorari to the

Court of Criminal Appeals of the State of Texas

RESPONDENT’S BRIEF IN OPPOSITION

JOHN L. HILL

Attorney General of Texas

LARRY F. YORK

First Assistant

JOE B. DIBRELL

Assistant Attorney General

LONNY F. ZWIENER

Assistant Attorney General

SARAH J. SHIRLEY

Assistant Attorney

Attorneys for Respondent

P. O. Box 12548, Capitol Station

Austin, Texas 78711 '

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SUBJECT INDEX

OPINION BELOW .........-- 0 eee ee ee eee eeceee

JURISDICTION ..... cece cece eee eee eeerecece

QUESTIONS PRESENTED ........-.eeeeeeeeeees

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THECASE .........-0+eeteeee 3

ARGUMENT AND AUTHORITIES ............++5- 4

1. The Court of Criminal Appeals of State of Texas

did not commit constitutional error in holding

that the evidence before the trial court was

insufficient to raise the issue of Petitioner's

competency to stand trial, such as to conduct a

separate competency hearing during the trial .... 4

LTP EEE OLLI GS EBT LTE FBIM NET NER

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2. The trial court did not commit constitutional

error in not empaneling a jury to determine

Petitioner’s competency after the hearing sub- f

sequent to the trial. ........+.+++++: errr ese 8 :

3. The indictment charging Petitioner with murder

with malice aforethought set forth the offense in

plain and intelligible language, sufficient to

satisfy constitutional requirements. ..........-- 8

CONCLUSION ..cccccccccccccceceeccccccccess 10

|

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PSE NIE POMBE AS LYS Dh ee ae

CERTIFICATE OF SERVICE .......----+eeeeeees

APPENDIX ..... See ele LC le ee en or

INDEX OF AUTHORITIES

Cases

Bartell v. U.S.,

og FE Fe PPPrerrvereryrTerrr re

Green v. U.S.,

389 F.2d 949 (U.S.App. D.C. 1969) ......

U.S. ex rel Harris v. Illinois,

457 F.2d 191 (7th Cir. 1972) ...........

Heard v. U.S.,

390 F.2d 866 (U.S.App. D.C. 1968) ...... 6

Morales v. State,

427 S.W.2d 51 (Tex.Crim.App. 1968) ..... 6

Fae ET ee ee hy ee

Pate v. Robinson,

SBS U.S. STS CIGSGS) ccc cccsosessecesss 4,5, 6,7

Rice v. U.S., j

420 F.2d 863, 865 (1969) .............. 6 r

U.S. ex rel Roth v. Zelker, E

455 F.2d 1105 (2nd Cir. 1972) .......... 6

Sims v. Lane,

411 F.2d 661, 666 (7th Cir. 1969) ....... 5

Townsend v. State,

427 S.W.2d 55 (Tex.Crim.App. 1968) ..... 6

INDEX OF AUTHORITIES (contd.)

Cases Page

Tyler v. Beto,

391 F.2d 993 (Sth Cir. 1968) .............. 6

U.S. v. Bearden,

423 F.2d 805 (Sth Cir. 1970) ...........2-. 9

U.S. V. Kahn,

381 F.2d 824 (7th Cir. 1967) .......6...... 9,10

U.S. v. Missler,

414 F.2d 1293 (4th Cir. 1969) ............. 9

U.S. v. Pleasant,

469 F.2d 1121 (8th Cir. 1972) ............. 10

U.S. v. Silverman,

430 F.2d 106 (2nd Cir. 1970, cert.den.

OZ U.S. FSB, UDTE) . nc cccccccccccccccees 10

Wilson v. Bailey,

375 F.2d 663 (4th Cir. 1967) ............-. 6

Zapata v. State of Texas,

493 S.W.2d 201 (1973) ....ccccccccscccces 2

Statutes

United States Constitution

5th, 6th and 14th Amendments ............ 3

Vernon’s Annotated Code of Criminal Procedure

Ce eee eked ee bikteseeees

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

NO. 73-283

TULES ZAPATA,

Petitioner

VS.

THE STATE OF TEXAS,

Respondent

On Petition for Writ of Certiorari to the

Court of Criminal Appeals of the State of Texas

RESPONDENT’S BRIEF IN OPPOSITION

OPINION BELOW

The Opinion of the Court of Criminal Appeals of the

State of Texas, for which review is sought here, is reported

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SRS SP SUT

in Zapata v. State of Texas, 493 S.W.2d 201 (1973). A

copy of the Opinion is attached to this Respondent’s Brief

in Opposition.

JURISDICTION

‘The formal jurisdictional requisites of the petition and

its timely filing would appear to be satisfied although

Respondent disputes Petitioner’s contention that any

rights guaranteed by the Constitution of the United States

have been violated.

QUESTIONS PRESENTED

Respondent believes that the questions presented for

review should be stated as follows:

(1) Did the Court of Criminal Appeals of the State of

Texas commit constitutional error in holding that the

evidence before the trial court was insufficient to raise the

issue of Petitioner’s competency to stand trial, and that

hence the trial court was not required, sua sponte, to

conduct a separate hearing during the trial to determine

Petitioner’s present sanity.

(2) Did the Court commit constitutional error in failing

to impanel a jury to determine Petitioner’s competency

after the hearing subsequent to the trial.

(3) Did the Court of Criminal Appeals of the State of

Texas commit constitutional error in holding that the

indictment set forth the offense in plain and intelligible

language, sufficient to satisfy constitutional requirements.

CONSTITUTIONAL PROVISIONS INVOLVED

Petitioner contends that Fifth, Sixth and Fourteenth

Amendments to the Constitution of the United States, as

well as Article 46.02, Texas Code of Criminal Procedure,

are involved herein.

<LI S AP per tate wnegecseens py

STATEMENT OF THE CASE

On May 31, 1971, Petitioner shot and killed her

husband. She was indicted and tried before a jury for the

offense of murder with malice aforethought. Petitioner

relied upon the theory of self defense as the basis of her

defense. During the trial, testimony was given on behalf of

the Petitioner concerning her mental state prior to and

subsequent to the commission of the crime. At no time did

Petitioner assert that she was presently incompetent to

stand trial. No request was made for a sanity hearing, nor

was any charge to the jury on the issue of present or past

insanity sought.

The jury found the Petitioner guilty of the offense as

charged, and she was sentenced to confinement for

twenty-five years in the Texas Department of Corrections.

Notice of Appeal was given by the Petitioner. Subse-

quently, Petitioner filed an Application for Writ of Habeas.

Corpus in the convicting court, in which she contended

that confinement in jail pending the outcome of the appeal

of her conviction endangered her life. A hearing was

conducted, at which testimony was given relating to

Petitioner’s mental state. The Court ordered the transfer to

the state hospital of Petitioner for an evaluation of her

mental condition. Subsequently, an order was entered by

the court mandating the return of Petitioner to the

Guadalupe County Jail. The Order recited the conclusion

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of the Unit Director and of the Clinical Director of the

State Hospital to the effect that Petitioner was mentally

competent to stand trial.

The Court of Criminal Appeals of the State of Texas

affirmed the conviction of Petitioner, which affirmance is

challenged in the Petitioner’s instant Petition for Certio-

rari.

ARGUMENT AND AUTHORITIES

1. The Court of Criminal Appeals of the State of

Texas did not commit constitutional error in

holding that the evidence before the trial court

was insufficient to raise the issue of Petitioner’s

competency to stand trial, such as to require the

court, sua sponte, to conduct a separate com-

petency hearing during the trial.

Petitioner initially contends that the trial court’s failure

to conduct, sua sponte, a separate hearing during the trial

to determine Petitioner’s present competency to stand trial

deprived Petitioner of due process of law. In support of

such contention, Petitioner relies upon the holding of this

Court in Pate v. Robinson, 383 U.S. 375 (1966) to the

effect that failure to afford the defendant a hearing on the

issue of present competency violates due process where

evidence before the trial court raises a sufficient doubt as

to said defendant’s sanity at the time of trial. Petitioner

asserts that the testimony at the trial of Dr. William

Gonzaba, concerning Petitioner’s mental condition prior to

and subsequent to the commission of the crime, was

sufficient to raise such a doubt.

In Pate, the defendant, Robinson, was convicted of

a m

murdering his wife. Although the fact of the murder was

conceded at the trial, defense counsel claimed that the

defendant was insane at the time of the commission of the

offense, and was also not competent to stand trial. The

defendant had a history from childhood of mental

disturbance. He had previously murdered his infant child

and had then attempted suicide. He had been confined as a

psychopathic patient in a state mental institution. At the

trial, four witnesses testified that the defendant was

insane. Despite such evidence, the trial court failed, sua

sponte, to conduct a separate hearing on the defendant’s

competency to stand trial. While no demand was made by

the defense for such a hearing, the Court held that “‘on the

basis of this record, we cannot say that [the defendant]

waived the defense of competence to stand trial”.

The present case presents a situation readily distin-

guishable from that involved in Pate. There the sanity of

the defendant was the central, and indeed the sole issue in

the case. The evidence indicated almost conclusively that

the defendant was insane. The quantity and quality of the

evidence in the present case was markedly different.

Petitioner claimed self-defense as her sole defense. The

testimony of Dr. Gonzaba went only to Petitioner’s state

of mind prior to and subsequent to the commission of the

crime, as supportive of her contention that she was afraid

her husband, the deceased, was going to kill her. Unlike

Pate, no significant evidence of present incompetency to

stand trial became manifest during the trial of Petitioner.

| The test for competency to stand trial has been stated

to be “whether the defendant has sufficient present ability

to consult with his attorney with a reasonable degree of

rational understanding, and whether he has a rational as

well as factual understanding of the proceedings against

him,” Sims v, Lane, 411 F.2d 661, 666 (7th Cir. 1969).

vallne

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Such test is different from that employed to determine

criminal responsibility at the time of the commission of

the offense. Pate does not mandate a hearing on present

competency where the evidence before the court does not

warrant one, U.S. ex rel Roth v. Zelker, 455 F.2d 1105

(2nd.Cir. 1972), nor in every case in which the issue is

raised, Wilson v. Bailey, 375 F.2d 663 (4th Cir. 1967);

Tyler v. Beto, 391 F.2d 993 (Sth Cir. 1968). The evidence

must be such that a bona fide doubt is raised in the mind

of the trial court as to the competency of the defendant to

stand trial, as defined by the test stated above, for judicial

due process to compel a sua sponte hearing, Green v. U.S.,

389 F.2d 949 (U.S.App. D.C. 1969). Moreover, the

convening of a competency hearing is within the discretion

of the trial judge, based on the facts which are before him

in a particular case. Heard v, U.S., 390 F.2d 866 (U.S.App.

D.C. 1968). The question is such cases, therefore, is one of

whether, the trial court abused its discretion. As the Court

of Appeals for the Fifth Circuit stated in Rice v. U.S., 420

F.2d 863, 865 (1969):

“In order [for the defendant] to prevail on [the

incompetency] point, the record must reflect that

the court was presented with sufficient facts to

believe that the defendant's mental condition was so

suspect as to require the court to order a[n] ...

exam. Requesting such . . . is within the discretion of

the court, and the defendant must show that the

evidence of incompetency was so strong that the

court abused its discretion in refusing to inquire

further into the defendant’s competency.”

As is recognized by Petitioner, the Court of Criminal

Appeals of Texas has conscientiously applied the doctrine

of Pate, Townsend v. State, 427 S.W.2d 55 (Tex.Crim.

App. 1968); Morales v. State, 427 S.W.2d 51 (Tex.Crim.

-

App. 1968). The Court of Criminal Appeals, however, has

required, in accordance with Pate, that the evidence raise a

bona fide doubt as to the defendant’s condition to

comprehend his situation or to make his defense before a

duty devolves upon the trial court to cause a sanity hearing

to be held on that issue. As the Court stated in Townsend,

supra, at page 63,

a ~~~ Veruper

“it is the trial court in whose mind a real doubt of

sanity on mental capacity must be raised before that

court is required to order an inquiry solely on its own

intiative ... [the court’s] ... decision will not be

disturbed in the absence of an abuse of sound judicial

discretion.”

Nothing in the opinion of the Court of Criminal Appeals

in the instant case is contrary to the doctrine of Pate, or to

previous state holdings. The court merely held that by

announcing ready and entering a plea without a request for

a competency hearing in accordance with Article 46.02,

V.A.C.C.P., Petitioner waived her right to a separate

hearing before the trial. It did not hold that by failing to

request a hearing, Petitioner waived all right thereto. Had

significant facts come to the attention of the court during

the trial indicating that Petitioner was incompetent to

stand trial, the Court would have been required to hold,

sua sponte, a competency hearing. The only evidence

before the court which even touched upon the issue,

however, was the testimony of Dr. Gonzaba, which went

solely to the state of mind of the Petitioner as it pertained

to the claim of self defense. At no time was any evidence

presented to the court of Petitioner’s alleged incom-

petency to stand trial, as such is defined, nor did anything

occur at the trial to indicate to the trial court the

possibility of any lack of competence of Petitioner to

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stand trial. Respondent submits that no error of constitu-

tional dimension which would warrant granting of certio-

rari was committed by the trial court in failing to conduct

a sua sponte competency hearing.

2. The trial court did not commit constitutional

error in not empaneling a jury to determine

Petitioner’s competency after the hearing subse-

quent to the trial.

Petitioner next asserts as grounds for granting certiorari

that error was committed by the trial court in failing to

empanel a jury to determine Petitioner’s competency after

the hearing subsequent to the trial. A hearing was held by

the trial court upon Petitioner’s Application for Writ of

Habeas Corpus, wherein Petitioner alleged that confine-

ment in jail pending the appeal of her conviction endan-

gered her health. Dr. Benhard Langrebe testified on behalf

of Petitioner. The Court ordered Petitioner transferred to

the San Antonio State Hospital for mental evaluation. On

the basis of the evaluation report, in which the Unit

Director and the Clinical Director of the hospital con-

cluded Petitioner competent to stand trial, Petitioner was

subsequently returned to jail. Her conviction was then

affirmed by the Texas Court of Criminal Appeals. As Pate

does not require a jury determination of competency to

stand trial, the trial court’s failure to empanel a jury

violated no due process right of Petitioner, and hence

raises no federal question.

3. The indictment charging Petitioner with murder

with malice aforethought set forth the offense in

plain and intelligible language, sufficient to satisfy

constitutional requirements.

= s

Petitioner additionally contends that the indictment,

charging her with murder with malice aforethought, was

not sufficiently clear to inform her of the offense charged,

nor positive enough to support a plea of former jeopardy.

The basis of such contention is the omission of the word

“‘did”’ in the indictment, which reads as follows:

“, .. that Mrs. Tules Zapata, on or about the 3rd day

of May, A.D., 1971, and before the presentment of

this indictment, in said County (Guadalupe) and

State (Texas), then and there unlawfully, with malice

aforethought, kill Luis Zapata by shooting him with a

gun, against the peace and dignity of the State.”

In 1913, this Court held in Bartell v. U.S., 227 U.S. 427,

431 that:

“. . . in passing on the legal sufficiency of an

indictment, it is necessary only to determine whether

or not it satisfies the requirements of the Sixth

Amendment that the accused in a criminal prosecu-

tion shall be informed of the nature and cause of the

accusation against him, and is adequate to enable him

to plead the judgment entered as res judicata of any

further prosecution for the same offense.”

The principle announced therein continues to provide the

test for determining the legal sufficiency of the indict-

ment, U.S. ex rel Harris v. Illinois, 457 F.2d 191 (7th Cir.

1972); U.S. v. Bearden, 423 F.2d 805 (5th Cir. 1970).

Indictments are to be read for their clear and practical

meaning, and convictions are not to be reversed because of

minor deficiencies which do not prejudice the defendant,

U.S. v. Kahn, 381 F.2d 824 (7th Cir. 1967); U.S. v.

Missler, 414 F.2d 1293 (4th Cir. 1969). Whether the

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elements of an indictment are sufficiently alleged does not

‘depend on “nice attention to technicality or formalistic

recitals”, U.S. v. Kahn, supra. It is enough that the

necessary facts appear in any form, or by their fair

construction can be inferred from the specific allegations

made, U.S. v. Kahn, supra; U.S. v. Silverman, 430 F.2d

106 (2nd. Cir. 1970, cert.den. 402 U.S. 953, 1971); U.S. v.

Pleasant, 469 F.2d 1121 (8th Cir. 1972).

The Court of Criminal Appeals of Texas, in passing on

the sufficiency of the indictment involved herein, held that

the omission of the word “did” failed to render the

indictment fatally defective. In so holding, the court

overruled previous cases stating a contrary rule. The

Constitution of the United States does not preclude such

action, so long as the indictment continues to satisfy the

requirements set forth above. The Court read the defini-

tion of malice aforethought, which was stated to be “the

voluntary and intentional doing of any unlawful act by

one of sound memory and discretion with the purpose,

means an ability to accomplish the reasonable and prob-

able consequences of the act”, in conjunction with the

indictment. The Court then held that, when considered

with the definition, the indictment set forth “in plain and

intellegible words” the offense charged. Respondent sub-

mits that the indictment as a whole conveys sufficient

information to satisfy the requirements of the Sixth

Amendment to the United States Constitution, and that

the Texas Court of Criminal Appeals did not commit

constitutional error in so holding.

‘CONCLUSION

For the foregoing reasons, Respondent respectfully

submits that Petitioner has failed to present any sub-

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stantial constitutional issues which would warrant the

relief requested. The petition for writ of certiorari should

be denied.

Respectfully submitted,

JOHN L. HILL

Attorney General of Texas

LARRY F. YORK

First Assistant

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JOE B. DIBRELL

Assistant Attorney General ;

SARAH J. SHIRLEY

Assistant Attorney General

LONNY F. ZWIENER

Assistant Attorney General

Attorneys for Respondent

P. O. Box 12548, Capitol Station

Austin, Texas 78711

eS

CERTIFICATE OF SERVICE

I, Lonny F. Zwiener, Assistant Attorney General of

Texas, attorney for the Respondent, do hereby certify that

a copy of the above and foregoing Respondent’s Brief in

Opposition has been deposited in the United States Mail,

certified and postage prepaid, on this the day of

December, 1973, addressed as follows: Honorable Harry

A. Nass, Jr., 1414 Tower Life Bldg., San Antonio, Texas

78205; and Honorable Ruben Montemayor, 1414 Tower

Life Bldg., San Antonio, Texas 78205, Attorneys for

Petitioner.

LONNY F. ZWIENER

Assistant Attorney General

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APPENDIX.

TULES ZAPATA, Appellant

NO. 45,782, v. —-— Appeal from Guadalupe County

THE STATE OF TEXAS, Appellee

OPINION

This is an appeal from a conviction for murder with

malice. Punishment was assessed by the jury at forty-five

years.

The sufficiency of the evidence is not challenged. A

summary of the facts is set out for a better understanding

of the grounds of error presented.

On the evening of May 3, 1971, Kathryn Soefje, a

dispatcher for the Seguin police department, received a call

at approximately 10:00 p.m. from one of appellant’s

children saying that there was a domestic quarrel at the

family residence. Officers Layne Dietz and Mike Rosas

were dispatched to investigate the call. Both officers

testified that appellant threatened to kill her husband in

their presence. After calming the two, the officers left.

At approximately 11:30 p.m. the same evening, Officers

Roy Paez and Kenneth Strong were summoned to the

Zapata residence to investigate an alleged shooting. Upon

their arrival at the home they were met by the appellant.

She told the officers that she had shot her husband, and

then she handed them a pistol.

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Initially, the appellant contends that the trial court

erred in failing to conduct a separate hearing on her

present competency to stand trial. She argues that the

uncontroverted testimony of Dr. Gonzaba raised sufficient

question as to her incompetency for a period of three

years prior to this offense.

No motion for a preliminary hearing on the issue of

competency to stand trial under the provisions of Article

46.02, V.A.C.C.P., was filed. In fact, appellant’s counsel

announced ready and the appellant personally entered her

own plea. Counsel then announced that the appellant did

not deny shooting her husband and stated that she did it in

self-defense. During the trial and after the State had rested,

appellant called Dr. William Gonzaba as a witness. He

testified that appellant had suffered from hallucinations

and various other symptoms of depression prior to and

immediately after the shooting occurred. Nowhere does it

appear that he considered appellant incompetent to stand

trial nor that she was unable to distinguish right from

wrong. In fact, at the trial appellant, testifying in her own

behalf, gave no indication that she was mentally incom-

petent. She answered all questions fully and completely

with the assistance of an interpreter. Nor is there anything

in the record to indicate that appellant’s counsel ever

requested that she be examined by a psychiatrist. Further,

there is no request by appellant’s counsel for a com-

petency hearing during the trial.

Appellant, by announcing that she was ready and

entering her plea without any suggestion of insanity to the

court, waived her right to a separate hearing before the

trial. A trial judge is not required to conduct such a

hearing on his own motion absent any significant facts

being brought to his attention or absent circumstances and

_~14—

ERR NT,

actions which should have indicated a need for a separate

determination. Boss v. State, 489 ‘.\\.2d 580. We hold

that the testimony of Dr. Gonzaba did not give rise to an

issue of appellant’s competency to stand trial, specially

when analyzed in comparison with appellant’s ov 1 actions

and testimony during the trial.

Next, appellant alleges that the trial cour erred in

refusing to grant her motion to quash the indic ment. She

argues that the failure to use the word “d.J” in the

charging portion of the indictment is fatal It is her

contention that such omission is in violation of Articles

21.02(7), 21.03 and 21.04, V.A.C.C.P.

The indictment appears in the record as follows:

“The Grand Jurors for the County of Guadalupe,

State of Texas, duly selected, impaneled, sworn,

charged and organized as such at the May Term, A.D.

1971, of the 25th Judicial District Court of said

County, upon their oaths present in and to said

Court, that Mrs. Tules Zapata, on or about the 3rd

day of May, A.D. 1971, and before the presentment

of this indictment, in said County and State, then and

there unlawfully, with malice aforethought, kill Luis

Zapata by shooting him with a gun, against the peace

and dignity of the State.”

Appellant, relying on Mesa v. State, 462 S.W.2d 600,

argues that the word “did” is an essential word in the

indictment. It is her position that the word “did” must

appear just prior to “... then and there unlawfully,” or

before “... kill Luis Zapata,” in order that the indictment

contain everything that is necessary to be proved with the

required degree of certainty.

atte.

a: aS bit ovhi sre?

The real issue is whether the indictment sets out the

offense charged in plain and intelligible language. We are

mindful of our holding in Moore v. State, 473 S.W.2d 523

(1971), where Presiding Judge Onion, speaking for the

majority, said:

“It is, of course, not sufficient to say that the

accused knew with what offense he was charged, but

the inquiry must be whether the charge in writing

furnished that information in plain and intelligible

language.”

Before analyzing the language of the indictment in the

present case, it is necessary that we look at the definition

of “malice aforethought.” The legal definition of such, as

defined by the Court, is “the voluntary and intentional

doing of an unlawful act by one of sound memory and

discretion with the purpose, means, and ability to accom-

plish the reasonable and probable consequences of the

act.” Witty v. State, 171 S.W. 229 (1915). Now a careful

reading of the charging portion of the indictment shows

“that Mrs. Tules Zapata, on or about the 3rd day of May,

A.D. 1971, and before the presentment of this indictment,

in said County and State, then and there unlawfully, with

malice aforethought, kill Luis Zapata by shooting him with

a gun.” (Emphasis Supplied)

Considering the definition of malice aforethought in

connection with the indictment, we hold that the indict-

ment sets forth the offense in plain and intelligible words

as required under the provisions of Article 21.02(7),

V.A.C.C.P. The insertion of “did” in one of the two places

or both would make the charging portion read smoother

and more grammatically correct. To the extent that other

_16—

+ secnaraae At PRP AN Ak NARRATE RS RIMINI RE Like y ye er Sar

cases are in conflict with this holding, they are overruled.

See Edmondson v. State, 41 Tex. 496.

Also, the appellant claims that the indictment should

have been quashed because Mexican Americans were

systematically excluded from grand juries in Guadalupe

County. She relies on the grand jury list for the years 1967

through 1971. Those lists show that twelve percent of the

grand jurors, during those years, had Mexican American

names. Counsel for appellant argues that since Guadalupe

County has approximately a fifty percent Spanish surname

population, such percentage should reflect in the make-up

of the grand juries. What appellant has failed to show is

how many females with Spanish surnames may have

married other than Spanish surname maies and served on

such juries. Nor does her evidence reflect how many

Spanish surname persons were summoned for such duty

and requested to be excused because of job requirements

or health reasons, Also, we note from the record that three

Mexican Americans served on the grand jury which

indicted appellant. We perceive no harm to appellant. See

Ex parte Woods, 483 S.W.2d 464, and Jaquez v. State, 473

S.W.2d 530. |

The appellant next contends that the prosecutor sup-

pressed evidence. She argues that the trial court erred in

refusing to grant her motion for discovery of a tape

recording taken at the grand jury proceedings. She argues

that the contents of that recording would show that the |

prosecutor had information concerning a knife allegedly

found on the deceased’s body, such information being vital f

to the issue of self-defense.

The record shows that in the hearing on his motion,

appellant called Officers Paez and Strong as witnesses.

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Both officers denied the existence of such a knife. Also,

the district attorney denied that he had any knowledge of

a knife being found on the deceased. The trial judge called

for the inventory of deceased's clothing and personal items

taken from his body. It did not reflect the existence of a

knife. After the trial judge denied the motion for

discovery, he instructed the district attorney to bring him

the tape recording and he would listen to it. If the

recording produced any information about a knife, he said

that he would change his previous denial. Nothing further

is shown. Appellant has not shown any harm.

Lastly, appellant contends that even if she is not

entitled to hear the tape recording of the testimony before

the grand pry, the tape recording itself violated the

provisions o/ Article 20.02, V.A.C.C.P. Even if such were a

violation, it vould not require a reversal of this cause.

No reveriible error being shown, the judgment is

affirmed.

Douglas, Judge

(Delivered April 25, 1973)

— a

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TULES ZAPATA, Appellant

NO. 45,782 v. Appeal from GUADALUPE County

THE STATE OF TEXAS, Appellee

DISSENTING OPINION

The majority holds that the word “did” is no longer an

essential word in an indictment alleging murder with

malice aforethought when charging the acts which con-

stituted the crime involved. The majority appears to

conclude the word may be supplied by argument or

intendment, and is necessary only if the pleader wants to

be “‘more grammatically correct.” In so holding, the

majority expressly overrules Edmondson v. State, 41 Tex.

496 (1874), and other cases in conflict, thereby abrogating

a general rule of pleading in criminal cases that has existed

in this jurisdiction for over one hundred years.

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errs

In support of his contention that the indictment was

fatally defective, the appellant relies upon Article

21.02(7), Vernon’s Ann.C.C.P. (requisites), which requires

that the “offense must be set forth in plain and intelligible

language,” and upon Articles 21.03 and 21.04, Vernon’s

Ann.C.C.P. These articles respectively read, as follows:

“Everything should be stated in an indictment

which is necessary to be proved.”

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And

“The certainty required in an indictment is such as

will enable the accused to plead the judgment that

may be given upon it in bar of any prosecution for

the same offense.”

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OQ PEL ,

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It has long been established that it must be alleged in

plain and intelligible words that the accused did things

which constituted the offense. See Article 21.02, supra,

note 37, and authorities there cited. And, “[f] acts must be

alleged by direct, certain, and positive averments, and not

by way of argument and inference.” 1 Branch’s Ann.P.C.,

2d ed., $513, p. 495-496.

In Hutchison vy. State, 26 Tex. 111 (1861) (concerning a

prosecution for unlawfully killing an animal coming within

the meaning of an estray), the court said:

“. . . The omission cf so important a word (did), a

word indispensable to make sense, in charging the

offense, ought not to be supplied by intendment.”

State v. Daugherty, 30 Tex. 360 (1867) (unlawful

interference with private property or private rights), held

that where an indictment omits a material word, although

it be but a preposition or a helping verb, the court will not,

from a knowledge of the language, supply the missing

word so as to supply the probable intention of the grand

jury. The court, thus, sustained a judgment quashing an

indictment on the basis of the omission of the word “did”’,

the State then having the right to appeal.

And, in Edmondson vy. State, 41 Tex. 496 (1874) (a

murder prosecution), where the offense was alleged to

have been done with “express malice aforethought,” the

court said:

“. . . [T] he averment, as to injuries inflicted with a

stick, not only lacks the proper specification of time

and place, but omits the word ‘did’ in a connection

where it was material—an omission which has been

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repeatedly held good ground for quashing an indict-

ment.”

In 1876, the Court of Appeals in Ewing v. State, 1 Tex.

App. 362 (1876) (a prosecution for abortion), cited with

approval the foregoing cases, and said:

“The indictment in this case is fatally defective

because it fails to allege that the defendant ‘did’ the

acts charged as constituting the crime. This word is

indispensable, and cannot be supplied by intend-

ment.”

OR Eye

To the same effect are the holdings in Tompkins v.

State, 4 Tex. App. 161 (1878) (keeping a disorderly house

for the purpose of public prostitution), and Moore v.

State, 7 Tex. App. 42 (1879). And Walker v. State, 9 Tex.

App. 177 (1880), noted that the omission of the word

“did” in the pleadings had been “uniformly adjudged

substantial.”

In Jester v. State, 9 S.W. 616 (Tex.Cr.App. 1888)

(involving a burglary prosecution), the Court of Appeals

said:

TL ASR ERR eS RO Re eer ove

“. . « In the indictment, as it appears in the record, f

there is a fatal defect, in so far as it undertakes to

charge ny 5 It alleges that the defendant ‘then

and there, by force, break and enter a house,’ etc.;

omi cing the essential word ‘did’. If such omission be

in the original indictment, a conviction for said

offense cannot be sustained upon it. Moore v. State, 7

Tex. App. 42; Valesco v. State, 9 Tex. App. 77... .”

In Barfield v. State, 45 S.W. 1015 (Tex.Cr.App. 1898)

(a prosecution for unlawfully carrying a pistol), it was

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noted that the omission of the word “did” in charging the

acts committed, in an unbroken line of decisions, has been

held to invalidate the complaint, information or indict-

ment as the case may be. A reversal was ordered.

This court in Ivey v. State, 247 S.W.2d 105 (Tex.Cr.

App.) (preventing another from engaging in a lawful

vocation), recognized the general rule involved ‘but held

the words “in doing so” to be sufficient in the indictment.

And, as late as 1971, this court in Mesa v. State, 462

S.W.2d 600 (Tex.Cr.App. 1971), stated:

“It is true that ‘[t]he word “did” is an essential

word in indictments, informations and complaints,

where the acts which constitute the offense are being

set forth.’ 1 Branch’s Ann. P.C., 2d ed., Sec. 512, p.

495 and cases there cited. Further, ‘[i]f the word

omitted is essential to the certainty necessary in the

description of the offense it cannot be supplied by

intendment, and of consequence such omission is

fatal to the validity of the indictment.’ Id.””'

See also 30 Tex.Jur.2d Indictment and Information § 22,

p- 571-572 and 4 Wharton’s Criminal Law and Procedure

§1761, p. 555 (1957).

In the instant case, the appellant, prior to trial, made a

written motion to quash the indictment on the very

ground now urged on appeal citing cases in support of the

general rule discussed. The motion was overruled.

1In Mesa, supra, an aggravated assault case, the court held that the

failure to use the word “‘did”’ for a third time in the pleading was not

reversible error under the circumstances.

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snieiaee ad atl

TEE ONT RE a RIOT RIN RS oor

It is difficult to imagine that, when the indictment was

so challenged, the prosecutor did not seek a new one

eliminating the question from the case. See Barfield v.

State, supra; Mesa v. State, supra. He did not, and now the

majority, in order to affirm the conviction, abolishes the

general rule which has prevailed for so long without

establishing another. The majority does not make clear

whether this holding will apply only to murder with malice

cases or will have application to all cases where malice

aforethought is not alleged, or whether there is one rule

for murder cases and another for other cases.

I cannot agree to such action. In my opinion, the

omission of the word “did” was fatal for the offense was

not charged in plain and intelligible language. As this court

said in Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.

1971),

“It is, of course, not sufficient to say that the

accused knew with what offense he was charged, but

the inquiry must be whether the charge in writing

furnished that information in plain and intelligible

language... .”

I dissent.

Onion, Presiding Judge

(Delivered April 25, 1973)

Roberts, J., joins in this dissent.

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