Reynolds v. State , 547 S.W.2d 590 ( 1977 )

OPINION

KEITH, Commissioner.

The jury found appellant guilty of theft of a billfold and money under V.T.C.A., Penal Code, § 31.03(d)(4)(B) (1974). It assessed his punishment at confinement for a period of ten years.

The complaining witness, George Scearce, testified that while he was at the cigar counter in the Walgreen Store in downtown Houston appellant removed his billfold from his pocket but Scearce was able to snatch it out of appellant’s hands before he could leave the store. Scearce pursued appellant and, with the help of two cadet police officers in training to become police officers in Houston, captured the appellant several blocks from the scene of the robbery. The complaining witness positively identified appellant as the one who extracted his billfold from his pocket and the student policemen identified appellant as the one they caught after a chase on the streets of downtown Houston.

In his first ground of error, appellant contends that the indictment is fatally defective in that it failed to allege that the theft was “ ‘without the alleged owner’s effective consent.’ ” No motion to quash or exception to the sufficiency of the indictment was filed nor was the alleged deficiency mentioned in the motion for new trial; instead, the ground is urged for the first time upon appeal.

The challenge to the indictment comes late for our consideration. In American Plant Food Corporation v. State, 508 S.W.2d 598, 604 (Tex.Cr.App.1974), Judge Odom, speaking for the Court, held:

“Only if the defect [in the indictment] be of such a degree as to charge no offense against the law, and thereby be void, will the exception to the substance be considered for the first time on appeal under Article 27.08(1), supra [V.A.C.C.P.].”

Thus, in order to reach this complaint, we must determine whether the indictment charged an offense under the statute. We say, as we did in American Plant Food Corporation v. State, supra, that issues cognizable under Article 27.08, Y.A.C. C.P., may be considered even when raised for the first time on appeal. Thus, we must determine if the indictment contained all of the constituent elements of the offense as defined by the statute.

The charging part of the indictment reads:

“Kelly Gene Reynolds, hereinafter referred to as the Defendant, heretofore on or about April 1,1974, did then and there unlawfully exercise control over property, namely, one billfold and cash money, with the intent to deprive the owner, George Scearce, hereafter styled the Complainant, of the property, and the Defendant stole the property from the person of the Complainant.”

Theft is defined in § 31.03, V.T.C.A., Penal Code (1974):

“(a) A person commits an offense if, with intent to deprive the owner of property:

(1) he obtains the property unlawfully; or

(2) he exercises control over the property, other than real property, unlawfully.

“(b) Obtaining or exercising control over property is unlawful if:

(1) the actor obtains or exercises control over the property without the owner’s effective consent.” (emphasis supplied) ¹

It is to be noted that the indictment contained no language which embraced the concept of lack of the owner’s effective consent although the conclusionary allegation is made that appellant “unlawfully exercise[d] control over property.” Thus, the question is squarely presented: Does an indictment which attempts to charge theft state an offense when it omits an allegation that the possession of the property was obtained without the owner’s effective consent? We answer our question in the negative for the reasons now to be stated.

The rule governing the question, before the adoption of the new penal code, was aptly stated in Martinez v. State, 494 S.W.2d 182, 183 (Tex.Cr.App.1973):

“A pleading charging theft must allege the owner’s lack of consent to the taking of the property. Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971); Long v. State, 39 S.W. 674 (Tex.Cr.App.1897) and see Kitchen v. State, 124 Tex.Cr.R. 358, 62 S.W.2d 144 (1931) and 5 Branch’s Ann. P.C.2d ed. 86, Sec. 2638.”

Appellant argues that the legislative intention is clear since the statute now contains the same requirement and provides a definition of “effective consent” in Section 31.01(4).² Support of this contention is to be found in the suggested form of indictment in such cases. See Morrison & Blackwell, New Texas Penal Code Forms, § 31.-03E, p. 38 (1973), where an indictment for theft from the person includes the phrase “without the effective consent of the owner.”

Similarly, in McClung, Jury Charges for Texas Criminal Practice, p. 131 (Rev.Ed. 1973), the element of “effective consent” is included in a charge of theft by the issuance of a check with insufficient funds to cover the same (charging theft under Section 31.03).

In Musick v. State, 121 Tex.Cr.R. 616, 51 S.W.2d 715, 716 (1932), this Court wrote:

“It is elementary, as well as statutory, that the essential element of theft is that the property be taken not only fraudulently but without the consent of the owner, with the intent to deprive the owner of the value and appropriate the property to the benefit of the taker. . [I]t is said that the definition of larceny which omits ‘without the consent of the owner’ is now universally conceded to be defective.” (emphasis supplied)

See and compare Worthington v. State, 469 S.W.2d 182, 183 (Tex.Cr.App.1971), holding an indictment defective which contained the phrase “without the consent” of the owner but omitted an allegation of the specific intent to deprive the owner of such property. Musick v. State, supra, was cited in Worthington, supra.

By statute [Article 21.03, V.A.C.C.P. (1966)], and decisional law [e.g., Antwine v. State, 518 S.W.2d 830, 831 (Tex.Cr.App.1975)], “[Everything should be stated in an indictment which is necessary to be proved.” And, another rule of equal validity is expressed thusly: “Ordinarily an indictment drawn in the language of the statute is sufficient.” Ames v. State, 499 S.W.2d 110, 114 (Tex.Cr.App.1973).

We still recognize as applicable the rule stated in Selvidge v. State, 126 Tex.Cr.R. 489, 72 S.W.2d 1079, 1080 (1934): “An indictment to be sufficient must specifically allege every constituent element of the offense and leave nothing to inference or intendment.”

Tested by the rules set out herein, we conclude that the indictment in this case was fatally defective in failing to charge each of the constituent elements of the offense of theft; and, the failure to include an averment that the theft of the property was without the effective consent of the owner rendered it fatally defective.

The legislature has seen fit to include the phrase in the new statutory crime; and, since it has been so included, it is presumed that the legislature had knowledge of the many prior holdings of this Court requiring the language to be included in the indictment. See Stratmon v. State, 169 Tex.Cr.R. 188, 333 S.W.2d 135, 138 (1960), and authorities therein cited. In adopting the new statute defining theft, the legislature retained as an element of the offense the lack of the owner’s consent to the appropriation of the property. In Parrish v. State, 126 Tex.Cr.R. 308, 71 S.W.2d 274, 276 (1934), the Court wrote:

“Such re-enactment has been generally regarded by courts and text-writers as equivalent to a re-enactment of the statute amounting to legislative approval of the interpretation of the statute previously given by the courts.”

Accord: Willis v. State, 141 Tex.Cr.R. 297, 148 S.W.2d 397, 400 (1941); Lamkin v. State, 138 Tex.Cr.R. 311, 136 S.W.2d 225, 227 (1940).

Appellant’s first ground of error is sustained and the judgment of the trial court is reversed and the cause dismissed.

Opinion approved by the Court.

1 . Section 31.03 was amended in 1975 (after the date involved in this case), to read:

“(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.

“(b) Appropriation of property is unlawful if:

(1) it is without the owner’s effective consent.”

This statutory change does not affect the result which we reach in this case since the phrase “without the owner’s effective consent” is present in the amendment.

2 . See also the definition of “effective consent” appearing in Section 1.07(a)(12), V.T.C.A., Penal Code (1974):

“ ‘Effective consent’ includes consent by a person legally authorized to act for the owner. Consent is not effective if:

(A) induced by force, threat, or fraud;

(B) given by a person the actor knows is not legally authorized to act for the owner;

(C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable decisions; or

(D) given solely to detect the commission of an offense.”