Gonzales v. State , 1985 Tex. App. LEXIS 11990 ( 1985 )

CADENA, Chief Justice,

dissenting.

The indictment alleges that the habitation was “within the City of San Antonio.” The majority opinion concludes that the indictment is fundamentally defective because it fails to allege that the City of San Antonio is an “incorporated” city.

As the Court of Criminal Appeals pointed out in Noble v. State, 18 S.W.2d 619, 620 (Tex.Crim.App.1929), a city is an “incorporated town.” There is no such thing as an “unincorporated” city. The Texas Supreme Court said, as early as 1890, that it is a well-established historical fact that the City of San Antonio was established as a corporation in 1733. Dittmar v. Dignowity, 78 Tex. 22, 14 S.W. 268 (1890). It was recognized as being incorporated by the Republic of Texas in 1837. Law of Dec. 14, 1837, 1837 Tex.Gen. Laws 37, 1 H. GAMMEL, LAWS OF TEXAS 1379 (1898). It was recognized as an incorporated city by the State of Texas in 1856. Law of July 17, 1856, ch. LXXXVII, 1856 Gen. Laws 4; 4 H. GAMMEL, LAWS OF TEXAS 550 (1898).

It is true that in Vasquez v. State, 665 S.W.2d 484 (Tex.Crim.App.1984), the Court of Criminal Appeals held that a court of appeals may not take judicial notice of the fact that a city was incorporated. This runs counter to the well-settled rule that courts are required to take judicial notice that a city is incorporated. The Court of Criminal Appeals has so held on several occasions. Salazar v. State, 161 Tex.Cr.R. 98, 275 S.W.2d 112 (1955), Farmer v. State, 119 Tex.Cr.R. 212, 43 S.W.2d 588 (1931), opinion on rehearing. The same rule has been consistently applied in civil cases. Greenway Parks Owners Association v. City of Dallas, 159 Tex. 46, 316 S.W.2d 74 (1958).

In Snyder v. State, 132 Tex.Cr.R. 3, 102 S.W.2d 424 (1936), the Court of Criminal Appeals took judicial notice of the fact that the City of San Antonio was incorporated under the enabling act passed pursuant to the Home Rule Amendment to the Texas Constitution.

I see no justification whatever for the attempt by the Court of Criminal Appeals in Vasquez, supra, to apply to the eyes of the courts of appeal a blindfold which that court has refused to wear.

TEX. CODE CRIM.PROC.ANN. art. 21.-18 (Vernon 1966) expressly provides that matters of which judicial notice is taken need not be alleged in the indictment.

The indictment was not fundamentally defective.