634 SW2D 681 - Gorman v. State

¶1OPINION

CLINTON, Judge.

¶2In this appeal from a judgment of conviction for third degree felony theft, we need *682not summarize the facts nor address all twenty one grounds of error. In light of recent opinions by this Court on the point, we move directly to ground of error nine. It complains that the trial court erred in overruling paragraph II of appellant’s motion to quash.

¶3In pertinent part, the indictment alleges that on a given date and with the required intent and culpable mental state appellant did “unlawfully appropriate such property,” namely “one camera” valued at more than two hundred but less than ten thousand dollars.1 The motion to quash asserts that the indictment “fails to define which type of ‘appropriation’ in Article 31.01 V.T.C.A., Penal Code, is being charged ... thus providing him with inadequate notice upon which to defend...”2 After hearing a brief presentation by counsel for appellant, the trial court overruled the motion.

¶4Appellant’s complaint raises, then, a matter of adequacy of the constitutional requisite of notice to an accused of the facts that constitute the legal charge against him, and we must consider the matter from his perspective. Article I, § 10, Constitution of the State of Texas; King v. State, 594 S.W.2d 425, 426 (Tex.Cr.App.1980). Our consideration tests the indictment on its face, by itself as a pleading. Brasfield v. State, 600 S.W.2d 288, 294-295 (Tex.Cr.App.1980).

¶5Sections 31.03 and 31.01, supra, in combination prescribe or permit conviction on “more than one set of circumstances,” Bras-fieid, at 295. That is, one may appropriate property by bringing about a transfer or purported transfer of title or other nonpos-sessory interest in it or by acquiring or otherwise exercising control over property other than real property.3 See Jones, “Theft: Texas Style,” 41 Tex.Bar J. 1063 (December 1978). A camera is, of course, “property,” being “tangible ... personal property,” Section 31.01(6)(B).

¶6Recently this Court again revisited “the issue of whether, upon timely specific request, this indictment was adequate to provide notice of the accusations against the accused,” Ferguson v. State, 622 S.W.2d 846, 849 (Tex.Cr.App.1981, Opinion on Rehearing). Pointing to language in Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1981) that the statutory term under examination “does not go to an act or omission of the defendant.” id., at 164,4 and reviewing germane authorities, the FergusonCourt gleaned the applicable rule controlling determination of the kind of motion to quash now before us, viz:

“From these cases, it is clear that even though an act or omission by a defendant is statutorily defined, if that definition provides for more than one manner or means to commit that act or omission, then upon timely request, the State must allege the particular manner or means it seeks to establish.” Id., at 851.5

¶7Application of the Fergusonrule to the case at bar indicates that the trial court erred in overruling appellant’s motion to *683quash,6 and without more we would now sustain the ninth ground of error. However, there may be more in the particular context of the statutory definition of “appropriate.”

¶8Though some operative terms were changed by the Legislature in 1975,7 the conceptual thrust of the offense of theft remained essentially the same. The original concept, we are informed, was “nonpos-sessory” as used in the former definition of “obtain” meant “interests that do not require possession to exist, such as title;” whereas “exercising control” was primarily directed at “those thefts that involve only possession,” but also “encompasses conduct that does not involve possession.” It follows that any distinction between “obtaining” and “exercising control” is “imprecise,” Practice Commentary following § 31.03. The 1975 legislative change, which we have noticed in note 7, neither altered the original concept nor made more precise that which was imprecise. One may still steal some property by “transfer of title” or by “exercise of control.”

¶9The property alleged to have been stolen by appellant is “one camera” worth more than two hundred dollars. May such a camera be taken unlawfully through more than one manner or means prescribed in the definition of the operative term “appropriates?” The answer to that question may well depend on the nature and quality of the camera and, though we continue to restrict our testing of adequacy of notice from the face of the indictment, the point to be made derives from what the parties agree describes this particular camera. See Ferguson v. State, supra, at 851.8

¶10It is said to be a Hasselblad, 500 cm. camera, with 80 mm lens and film magazine, having a stated serial number. They characterize it as “expensive”—with accessories, its estimated value is “around $3,000.” While one need not be absolutely sure, legal notions of “transfer of title” (the shorthand rendition we have used) suggest that interests in such “goods” do not require possession to exist. See V.T.C.A. Business and Commerce Code, §§ 2.105(a)9, 2.401(a)10 and 2.403.11 Thus, title to the Hasselblad camera seems susceptible to transfer by one who had not acquired or otherwise exercised control over it.

¶11Accordingly, we hold that in light of appellant’s timely motion to quash the indictment did not provide adequate notice of the charges against him. Ferguson v. State, supra; see Thomas v. State, supra, cf. *684Phelps v. State, 623 S.W.2d 936, 93712 (Tex.Cr.App.1981).

¶12The judgment of conviction is reversed and the indictment is ordered dismissed.13 Before the court en banc.

¶13. All emphasis is added by the writer of this opinion unless otherwise indicated.

¶14. V.T.C.A. Penal Code, § 31.03(a) provides that one commits an offense if one “unlawfully appropriates property with intent to deprive the owner of property.” Section 31.01(5), id., defines “appropriate” to mean:

“(A) to bring about a transfer or purported transfer of title to or other nonpossessory interest in property, whether to the actor or another; or

(B) to acquire or otherwise exercise control over property other than real property.”

¶15. By way of shorthand rendition, we shall call the first of several methods “transfer of title” and the second means “exercise of control.”

¶16. Underscoring was supplied by the Court in Thomas.

¶17. Addressing one facet of the State’s argument, the Court explained that if the indictment did not allege “each type of criminal conduct” proscribed by statutory definition, an accused “would be left to guess or assume that the State was going to prove one or all the types of conduct,” ibid.This is not adequate notice to an accused for, as Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977) had pointed out, an accused “is not required to anticipate any and all variant facts the State might hypothetically seek to establish,” id., at 947.

¶18. The briefs before us were filed with the Clerk in January 1979. Though neither party had the benefit of Thomasand Ferguson, appellant anticipated such a rule by analogizing from Johnson v. State, 547 S.W.2d 599 (Tex.Cr.App.1977) and quoting from Drumm v. State, supra. The State, for its part, understood appellant to contend that the indictment failed to allege “in which manner the appellant exercised control over the property to constitute theft,” and argued that under Johnsonthe allegation that appellant did “appropriate” the camera is sufficient. That argument, of course, misses the point that the inquiry is really whether the State “must allege the particular manner or means it seeks to establish,” Ferguson, supra, at 851.

¶19. The initial central provisions denounced conduct by which an accused “obtains” property unlawfully or “exercises control” over property, “other than real property,” and to “obtain” meant “to bring about a transfer or purported transfer of a nonpossessory interest in property.” See former §§ 31.03(a) and 31.01(5). Acts 1975, 64th Leg., ch. 342, p. 914, §§ 9 and 10 reduced the key words to “appropriates” and incorporated within its definition both “transfer of title” and “exercise of control,” see note 2 ante and accompanying text.

¶20. “In fact, in the present case, two possible offenses may have been involved. The record indicates that there was an ‘offer to sell’ . .. [and] a distinct and different ‘constructive delivery’ may have been shown.”

¶21. “ ‘Goods’ means all things (including specially manufactured goods) which are moveable at the time of identification to the contract for sale...”

¶22. Subject to certain other provisions, “title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties.”

¶23. “A person with voidable title has power to transfer a good title to a good faith purchaser for value.”

¶24. Phelps was not entitled “to a more precise definition of the term ‘possession’ ” because the term “describes a relationship to property” rather than an act or omission of the accused. The Dallas Court of Appeals has found itself “unable to reconcile this case with the reasoning of Thomas v. State, supra, or the holding in Ferguson v. State, supra, and choose to follow the en banc decision in Ferguson.” Coleman v. State, 629 S.W.2d 126, (1981). The result was reversal of judgment of conviction and dismissal of indictment in a theft case postured identically like the one before us, except that the property stolen consisted of four suits of clothing shoplifted off their rack. Reconciliation is not for a panel of this Court, and presently uninformed as to the status of Coleman v. State, supra, in the appellate process, we intimate no views as the correctness of the holding of the Dallas Court of Appeals.

¶25. In his twenty first ground of error appellant challenges sufficiency of the evidence to support the verdict of the jury, but his specific point is that the person alleged as “special owner” of the camera was not proved to be. He relies only on McGee v. State, 572 S.W.2d 723 (Tex.Cr.App.1978), but it was expressly overruled by Compton v. State, 607 S.W.2d 246 (Tex.Cr.App.1980), as is this ground of error. Giilett v. State, 588 S.W.2d 361, 364 (Tex.Cr.App.1979).

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