Jeffers v. State , 1983 Tex. Crim. App. LEXIS 878 ( 1983 )

OPINION

TOM G. DAVIS, Judge.

Appeals are taken from eight convictions for gambling promotion. V.T.C.A. Penal Code, Sec. 47.03(a)(2). Appellant was convicted in a trial before the court following his pleas of guilty. Punishment in each cause was assessed at three years, probated.

Appellant presents the same single ground of error in each of these appeals. He maintains the court erred in overruling his motion to quash each of the indictments for failing to specify the “manner or means” whereby he received a bet and offer to bet.

The indictment in each cause is identical except for the date of the offense and the teams upon which the bet and offer to bet were received. The indictment in our Cause No. 68,114 alleges in pertinent part that on August 5, 1978, appellant did:

“intentionally and knowingly receive a bet and offer to bet by RICHARD L. BENTON on a game, namely, a professional football game between the Dallas Cowboys and the San Francisco 49ers.”

Initially, we note that appellant’s pleas of guilty have not waived the matter of his motion to quash the indictments. The motions were written and filed prior to trial. Further, the records reflect that the pleas of guilty were the result of a plea bargain and that the punishment assessed by the court did not exceed the punishment recommended by the prosecutor and agreed to by appellant and his attorney. Thus, the matter of appellant’s motion to quash the indictments has been preserved for appellate review within the provisions of Art. 44.02, V.A.C.C.P. See Craven v. State, Tex. Cr.App., 613 S.W.2d 488.

Appellant does not urge that the indictments are defective for failing to allege all of the elements of the offense. In Rush v. State, Tex.Cr.App., 576 S.W.2d 628, an indictment similar to appellant’s under the provisions of Sec. 47.03(a)(2), supra, was found sufficient to allege the offense of gambling promotion.

Appellant contends that the indictments failed to apprise him of the charges against him with such particularity so as to enable him to prepare a defense. Specifically, he urges that the indictments failed to allege facts sufficient to give him notice of the manner and means whereby he received a bet and offer to bet. This contention was raised prior to trial, and therefore the fundamental constitutional protections of adequate notice and due process are involved. McManus v. State, Tex.Cr.App., 591 S.W.2d 505. These protections require careful examination and consideration from the perspective of the accused. Haecker v. State, Tex.Cr.App., 571 S.W.2d 920.

When considering a motion to quash, it is not sufficient to say that the accused knew with what offense he was charged; rather, the question presented is whether the face of the instrument sets forth in plain and intelligible language sufficient information to enable the accused to prepare his defense. Haecker v. State, supra; Moore v. State, 532 S.W.2d 333. In Thomas v. State, Tex.Cr.App., 621 S.W.2d 158 (Tex.Cr.App.1981), this Court stated:

“The general rule is that a motion to quash will be allowed if the facts sought are essential to giving notice. However, unless a fact is essential, the indictment need not plead evidence relied on by the State. Smith v. State, 502 S.W.2d 133 (Tex.Cr.App.1973); Cameron v. State, 401 S.W.2d 809 (Tex.Cr.App.1966). Moreover, when a term is defined in the statutes, it need not be further alleged in the indictment. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App. 1974); ...

“The only viable alternative is allowing the trial judge sound discretion in granting a motion to quash. Lamb v. State, [98 Tex.Cr.R. 358] 265 S.W. 1035 (1924). Reaffirmation of this rule allows this Court to review the trial court’s action on a case by case basis. The motion to quash will be granted where the language concerning the defendant’s conduct is so vague or indefinite as to deny the defendant effective notice of the acts he allegedly committed. .. . ” (Emphasis in original).

In Cruise v. State, Tex.Cr.App., 587 S.W.2d 403, the defendant was convicted of robbery by causing bodily injury under V.T. C.A. Penal Code, Sec. 29.02(a)(1). On appeal, he urged the trial court had erred in denying his motion to quash the indictment. The motion complained that the indictment failed to allege the manner and means by which the defendant caused bodily injury to the complainant. This Court found that the trial court erred in overruling the defendant’s motion to quash and stated:

“We believe it unnecessary in our inquiry to go beyond the prescription of Art. 21.-03, V.A.C.C.P., that ‘everything should be stated in an indictment which is necessary to be proved.’ We fail to see in what manner the State might hope to prove to the jury beyond a reasonable doubt that appellant caused bodily injury to the complainant, without adducing facts that described the way in which he did so. This being the case, the trial court committed reversible error in refusing to order the State to disclose such facts when confronted with appellant’s motion to quash the indictment for the reasons stated.... ” Id. at 404.

In Haecker v. State, supra, the defendant was convicted of cruelty to animals under V.T.C.A. Penal Code, Sec. 42.11(a)(1). The information in that case used the term “torture” as its only description of the criminal act. The trial court overruled the defendant’s motion to quash in which it was urged that the term torture failed to provide adequate notice of the offense charged. On appeal, this Court found that the trial court had erred in overruling the defendant’s motion to quash due to the diverse number of acts which are includable within the word torture. See also Ellis v. State, Tex.Cr.App., 613 S.W.2d 741; Drumm v. State, Tex.Cr.App., 560 S.W.2d 944; Swabado v. State, Tex.Cr.App., 597 S.W.2d 361.

The essence of each of the eight offenses, as alleged in the indictments, was appellant’s act in receiving a bet and offer to bet by a named individual. The indictments fail to specify the manner by which appellant received the bets and offers to bet. Such items could have been received a number of ways including: in person, through a third party, over the telephone, at a drop or through the mail. We fail to see in what manner the State sought to prove beyond a reasonable doubt that appellant received bets and offers to bet by an individual, without adducing facts which described how the receipt took place. Appellant’s motion to quash entitled him to the allegation of facts sufficient to bar a subsequent prosecution for the same offense and sufficient to give him precise notice of the offense with which he was charged. We conclude the trial court erred in overruling appellant’s motion to quash. Under such circumstances the indictments will be dismissed. Brasfield v. State, Tex. Cr.App., 600 S.W.2d 288.

The judgments are reversed and the indictments are ordered dismissed.

Before the court en banc.