Hackbarth, Harvey Herman v. State

Affirmed and Memorandum Opinion filed March 16, 2004

Affirmed and Memorandum Opinion filed March 16, 2004.

In The

Fourteenth Court of Appeals

_______________

NO. 14-03-00635-CR

_______________

HARVEY HERMAN HACKBARTH, Appellant

V.

THE STATE OF TEXAS, Appellee

_____________________________________________________

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 893,236

_____________________________________________________

M E M O R A N D U M O P I N I O N

Appellant, Harvey Herman Hackbarth, appeals a conviction for making a terroristic threat.  In two issues, he contends the trial court erred in denying his motion to dismiss the indictment on the grounds that (1) the State failed to allege an offense cognizable under Texas law, and (2) the State did not provide fair notice of the offense charged.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

Discussion

Before pleading guilty to the offense of making a terroristic threat, appellant filed a motion to dismiss the indictment.  The trial court denied the motion and certified appellant=s right to appeal this issue.  See Tex. R. App. P. 25.2(a)(2)(A). 

Under the Penal Code, a person commits a crime if he Athreatens to commit any offense involving violence to any person or property with intent to . . . cause impairment or interruption of . . . [a] public service.@ Tex. Pen. Code Ann. ' 22.07 (Vernon Supp. 2004).  In its indictment, the State alleged that appellant did

unlawfully threaten to commit an offense involving violence, namely a bombing upon Cy Fair Volunteer Fire Department Station Number 6 with the intent to cause impairment and interruption of a public service facility; namely, Cy Fair Volunteer Fire Department Station Number 6.

An indictment must contain the elements of the offense charged, fairly inform the defendant of charges he must prepare to meet and enable the defendant to plead acquittal or conviction in bar to future prosecution for the same offense.  Tex. Code Crim. Proc. Ann. art. 21.11 (Vernon 1989); Sanchez v. State, 928 S.W.2d 255, 259 (Tex. App.CHouston [14th Dist.] 1996, no pet.).  A motion to quash should be granted only when the language in an indictment is so vague or indefinite that it denies the defendant effective notice of the crime with which he is charged.  Daniels v. State, 754 S.W.2d 214, 217 (Tex. Crim. App. 1988).

In his first issue, appellant claims that the State failed to allege an offense because of the statement in the indictment that appellant intended to cause interruption of a Apublic service facility,@ and not a public service.  However, an indictment need not use the exact statutory language, as long as the substituted words convey the same meaning or include the sense of the statutory word. State v. Kinsey, 861 S.W.2d 383, 384 (Tex. Crim. App. 1993); see Tex. Code Crim. Proc. Ann. art. 21.17 (Vernon 1989).  To determine whether an indictment is sufficient, we must read it as a whole and ascertain whether the meaning of the offense is the same. See Williams v. State, 848 S.W.2d 777, 780 (Tex. App.CHouston [14th Dist.] 1993, no pet.).  In this case, appellant was charged with threatening to commit a bombing on a volunteer fire department station with intent to cause impairment and interruption of that fire department.  Reading the indictment as a whole, the State sufficiently alleges the offense of making a terroristic threat because the substituted phrase, Apublic service facility@ has the same connotation as the statutory phrase Apublic service.@ See Kinsey, 861 S.W.2d at 384. We overrule appellant=s first issue.

In his second issue, appellant claims he did not receive fair notice of the offense charged because the specific words of his threat were not in the indictment.  Although the State must allege facts sufficient to give a defendant notice of the charge, the evidence on which the State bases an indictment need not be included unless it is essential to give a defendant notice.  Livingston v. State, 739 S.W.2d 311, 321 (Tex. Crim. App. 1987).  In a terroristic threat case, if the indictment includes all the elements of the offense, the actual words used to make the threat are evidentiary in nature and are not required to give the defendant notice.  George v. State, 841 S.W.2d 544, 548 (Tex. App.CHouston [1st Dist.] 1992), aff=d, 890 S.W.2d 73 (Tex. Crim. App. 1994).  In this case, the State alleged appellant threatened to a bomb a public service facility. Because this information is sufficient to give appellant notice of the charge, the trial court properly overruled appellant=s motion to dismiss the indictment.  The specific words he used to make the threat are only evidentiary and not required in the indictment.  See id.  Accordingly, we overrule appellant=s second issue.     

The judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed March 16, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).