Lindsay v. State

¶1dissenting.

¶2V.T.C.A. Penal Code, Sec. 15.02, unlike Art. 1622, V.A.P.C. (1925), requires an overt act to be committed to constitute the substantive offense of conspiracy. Except for *573an allegation of the overt act, I see no reason why an indictment for the substantive offense of conspiracy under the new penal code should be different than under the former penal code. Under the former penal code, this Court held that it was unnecessary to allege the means by which the conspiracy was to be accomplished. See Garza v. State, 122 Tex.Cr.R. 413, 55 S.W.2d 1042 (1932); Echols v. State, 133 Tex.Cr.R. 121, 109 S.W.2d 190 (Tex.Cr.App.1937).

¶3Although the indictment in the instant case is drawn inartfully and is not a model — it alleges more than is necessary — the court did not err in overruling the appellant’s motion to quash the indictment. I submit that under Y.T.C.A. Penal Code, Sec. 15.02,1 an indictment is sufficient which alleges in pertinent part that “Judith Lindsay, did then and there with the intent to commit murder for remuneration, agree with Kenneth G. Davis, Jewelle Beard, and Larry Whittaker, that they, or one of them, would shoot Larry Lindsay with a firearm and pursuant to that agreement, Kenneth G. Davis shot Larry Lindsay with a firearm.” Such an allegation contains all of the constituent elements of the offense; i. e., (1) a person (2) with intent that a felony be committed (3) agrees with one or more persons (4) that they or one of them engage in conduct that would constitute the offense (5) and an overt act in pursuance of that agreement is performed by one or more of them.

¶4I dissent.

¶5Before the court en banc.

¶7ON STATE’S MOTION FOR REHEARING

¶8dissenting.

¶9Appellant was convicted of conspiracy to commit capital murder1 with the punishment, assessed by the jury, at seven years.

¶10The indictment reads that appellant

“did then and there with intent that a felony, to wit: capital murder for remuneration and the promise of remuneration, be committed, the said Judith Lindsay did then and there agree with Kenneth G. Davis, Jewelle Beard and Larry Whittaker that the said Judith Lindsay, Kenneth G. Davis, Jewelle Beard and Larry Whittaker engage in conduct that would constitute said offense and the said Kenneth G. Davis, performed an overt act in pursuance of said agreement, to wit: by shooting Larry Lindsay with a firearm. . . ” (Emphasis supplied)

¶11On original submission, the majority reversed the conviction because the indictment failed to put the appellant on notice of the specific acts or conduct which formed the basis of the agreement.

¶12In Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1978), this Court reversed the conviction because sufficient notice was not set forth in the information. The defendant was convicted of driving while his license was suspended under Article 6687b, Section 24, V.A.C.S., and Article 6687b, Section 34, V.A.C.S. The indictment was held to be insufficient because it did not specify the facts necessary to put the defendant on notice of which of the five subsections of Article 6687b, Section 24, supra, formed the basis of the suspension.

¶13*574Similarly, V.T.C.A., Penal Code, Section 19.03, lists five means by which capital murder can be committed. This indictment, however, specified which of the five subsections of Section 19.03 formed the basis of the charge. She was put on sufficient notice that she would have to defend herself against the charge of capital murder for remuneration.

¶14It should not be necessary to specify the details of the intended offense with greater particularity than was done in the instant case. See also the indictment in Brown v. State, 576 S.W.2d 36, fn. 1 (Tex.Cr.App.1979). In Garza v. State, 122 Tex.Cr.R. 413, 55 S.W.2d 1042 (Tex.Cr.App.1932), in construing Article 1622, V.A.P.C. (1925), we held that the means by which the conspiracy would be accomplished need not be alleged. In Nisbet v. State, 170 Tex.Cr.R. 1, 336 S.W.2d 142 (Tex.Cr.App.1959), we held that the intended offense or object of the conspiracy need not be alleged with the same particularity as an indictment charging the commission of the intended offense.

¶15In Nisbet, the defendant was charged with conspiracy to steal money and property from the City of Houston, with conspiracy to steal money and property from unknown persons, with conspiracy to accept a bribe. The indictment was sufficient because the crime of conspiracy is a single and separate offense, the gravamen of which is the agreement to commit a felony. It is a separate offense regardless of the number of intended offenses.

¶16Here, as in Nisbet, sufficient facts have been alleged to constitute an agreement to commit a felony. A conviction for conspiracy will be sustained once proof of that agreement and an overt act in furtherance of the agreement have been introduced into evidence. V.T.C.A., Penal Code, Section 15.02. At that point, the offense of conspiracy is complete. Smith v. State, 363 S.W.2d 277 (Tex.Cr.App.1963); Witt v. State, 146 Tex.Cr.R. 627, 177 S.W.2d 781 (Tex.Cr.App.1944). The holding of Carter v. State, 135 Tex.Cr.R. 457, 116 S.W.2d 371 (Tex.Cr.App.1937), is applicable. This indictment is sufficient to put Lindsay on proper notice of the offense with which she is charged.

¶17In the present case a conspiracy to commit murder plus the overt act pursuant to the agreement was alleged. The conspiracy to commit murder allegation was sufficient under the former statute, and the addition of the overt act made the indictment sufficient under the present statutes.

¶18Further, a reasonable interpretation of the indictment is that for remuneration Kenneth G. Davis was hired to kill Larry Lindsay and attempted to do so by shooting him with a firearm.

¶19The motion for rehearing should be granted and the judgment of conviction should be affirmed.

¶20DALLY, J., joins in this dissent.