¶1concurring and dissenting.
¶2The Appellant endeavored to require the State to allege with specificity the detailed manner and means by which the Appellant, Alice Faye Green, allegedly acquired or otherwise exercised control over the money that the indictment stated was owned by the complainant, Edna Jones. As a matter of reasonable, good practice the State, cognizant of prior decisions, was probably aware of the pitfalls involved in specifically alleging the “manner and means” if the same are not required. Yet if the “manner and means” are pleaded and the State fails to prove the actual manner and means, then a reversal is probable. In view of the entirety of the record in the case, I think that the allegations of the indictment were sufficient to give adequate notice to the Appellant and that such notice was ample to put the Appellant in a position to adequately and sufficiently prepare her defense.
¶3However, see Gorman v. State, 634 S.W.2d 681 (Tex.Crim.App.1982). In Gorman, the Court wrote at 685:
“The supposition that a multiplicity of variant theories will be alleged in an indictment returned after a motion to quash is granted will become a fact only in those cases where some evidence is presented to the grand jury supporting each of the ‘multiplicity of variant theories.’ And in that rare case where there is such evidence, the accused is certainly entitled to notice of the State’s multiple theory of culpability.”
¶4Gormanfurther states that theft by appropriation involves an act that in turn may be bodily movement and may also include speech. In fact, TEX.PENAL CODE ANN. sec. 31.01(5)(B) (Vernon Supp.1989) reads:
“(B) to acquire or otherwise exercise control over property other than real property.”
¶5As a general rule, the allegations in the indictment that track the statute are considered sufficient. I think that the holding and reasoning in Garza v. State, 653 S.W.2d 850 (Tex.App.—Corpus Christi 1982, no pet.), is sound and should be followed here.
¶6In Garza, the Corpus Christi Court of Appeals, by unanimous decision, pointed out that the Legislature did not provide any further definition of “exercise control.” The indictment gave this Appellant sufficient notice of the nature of the accusation against her. Furthermore, since the State could, I think, prove the offense charged by direct evidence commingled with circumstantial evidence, I think the State could have made out its case without proving the detailed means by which the Appellant committed the offense. Hence, I take exception to the majority opinion.
¶7I disagree that the indictment in question failed to convey to Alice Faye Green any requisite notice that would deprive this Appellant of the ability to prepare her defense. As a practical matter, the State demonstrated upon the trial that this Ap*924pellant acquired control over the monies of Edna Jones by depositing the same into her own; that is, the Appellant’s, savings account. This was done by means of five checks that were payable to the Appellant and were drawn on the Money Market Account belonging to Edna Jones.
¶8Next, the Appellant’s attack shifted to the averment that there was insufficient evidence to show that Edna Jones did not give her effective consent to appropriations of Mrs. Jones’ funds. The challenged indictment is clear on that point. It unequivocally set forth that Alice Faye Green’s one scheme and “continuing course of conduct” was without the effective consent of the owner, Edna Jones.
¶9Furthermore, the indictment set forth with specificity the aggregate amount of money of which Edna Jones was deprived. This was done by setting out the following allegations that, on or about each of the following dates, Edna Jones was deprived of her money:
“On or about August 20, 1986, in United States money in the amount of $8,000.00;
“On or about August 29, 1986, in United States money in the amount of $4,000.00;
“On or about September 3, 1986, in United States money in the amount of $4,000.00;
“On or about September 18, 1986, in United States money in the amount of $3,200.00;
“On or about September 18, 1986, in United States money in the amount of $4,000.00.”
¶10I would follow the reasoning in Garza v. State, supra. The rationale of the Corpus Christi Court was:
“The legislature did not provide any further definition of ‘exercise control,’ which itself is an alternative means of ‘appropriation’ under the theft statute. Tex.Penal Code Ann. sec. 31.01, 31.03 (Vernon Supp.1982). The indictment need not be more specific as to how the appellant exercised control over the ring. It gave the appellant sufficient notice of the nature of the accusation....”
¶11I think that a reading of the complete indictment herein gives adequate notice of the nature of the accusation against Appellant and certainly sets out the times, dates and amounts of United States money involved.
¶12In my opinion, there was no prejudice to the substantial rights or the procedural rights of this Appellant in regards to the indictment. Since the indictment unequivocally pleaded that there was no effective consent of the owner, Edna Jones, and in view of the fact that Edna Jones’ testimony was clear that she gave no consent of any kind to the Appellant to exercise any control over her (Jones’) property, and in view of the fact that Jones stated that she did not sign the checks in question; then, it clearly is shown that the Appellant wrongfully appropriated to her own accounts the funds of Edna Jones. Therefore, I agree that the evidence and testimony in this record amply sustains the jury findings that the Appellant, Alice Faye Green, appropriated Mrs. Jones’ money and that Alice Faye Green did so without the effective consent of Edna Jones, who was the owner.
¶13Since the Appellant had deposited each of the checks into her own bank account, this action clearly demonstrated that she was exercising control over the money and that, hence, there was evidence in the record of probative force sufficient to prove that the Appellant appropriated Mrs. Jones’ Money Market funds and Jones’ money with the intent to dispose of the same in a manner that would make it unlikely that Mrs. Jones could recover it. This evidence is coupled with the fact that the Appellant also withdrew the money from her own account which proved that Green’s intent was to make a recovery by Mrs. Jones of her own money less likely and much more difficult.
¶14The indictment set forth in plain, understandable and intelligible words the property involved and the subject matter and nature of the offense charged against this Appellant. The indictment alleged that the only deprived property was money acquired and controlled by Green. The indictment does not bring into play the concept of effecting a transfer or a purported transfer of the title or other non-possessory interest *925in the property whether to the actor or another. Hence, the only thing, I think, we need concern ourselves with is the concept of acquiring, or otherwise exercising control over, property other than real property. See TEX.CODE CRIM.PROC.ANN. sec. 31.01(5)(B) (Vernon 1966). The allegations set forth the specific and detailed dates and the specific and detailed amounts of the deprivations.
¶15TEX. CONST, art. I, sec. 10 (1876, amended 1984), states, in substance, that in all criminal prosecutions the accused or the defendant:
“[S]hall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof....”
¶16The legislature has provided that a meaningful guidance to the adequacy of the notice is that the offense must be set forth in plain and intelligible words. TEX. CODE CRIM.PROC.ANN. art. 21.02(7) (Vernon 1966).
¶17TEX.CODE CRIM.PROC.ANN. art. 21.-03 (Vernon 1966) states:
“Everything should be stated in an indictment which is necessary to be proved.”
¶18TEX.CODE CRIM.PROC.ANN. art. 21.-Olp (Vernon 1966) provides that:
“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.”
¶19TEX.CODE CRIM.PROC.ANN. art. 21.12 (Vernon 1966) states, in part:
“When a statute defining any offense uses special or particular terms, indictment on it may use the general term which, in common language, embraces the special term....”
¶20Again, reading the indictment herein, in its entirety, I would stress that there was an adequacy of notice to this Appellant. Her contentions in this regard are not sound.