author: KEITH, Commissioner. DOUGLAS, Judge ONION, Presiding Judge.

text:
    Kelly Gene REYNOLDS, Appellant, v. The STATE of Texas, Appellee.
    No. 51286.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1976.
    On State’s Motion for Rehearing Feb. 23, 1977.
    Rehearing Denied March 23, 1977.
    Ken McLean, Houston, for appellant.
    Carol S. Vance, Dist. Atty., and James C. Brough, Larry E. Meyer, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   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)

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). 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.

DOUGLAS, Judge

(dissenting).

The majority holds that the indictment for theft is fundamentally defective because it does not allege that Reynolds exercised control over the property “without the owner’s effective consent.” There was no exception or motion to quash the indictment. Appellant and his attorney knew he was charged with theft and neither has to this day claimed they did not have notice of what he had to defend against.

The indictment is drafted in broader language than the statute but without consent is included in the allegations. It alleges that Reynolds did unlawfully exercise control over the property of the owner and that the “Defendant” stole the property “from the complainant (the owner).” A layman or anyone else can readily see from the reading of the charging part of the indictment that Reynolds stole the property which includes lack of consent. One cannot steal with the consent of the owner.

The new Penal Code was drafted with the intent to eliminate many of the archaic practices which had become entrenched in our law and which served no useful legal purpose. In Gonzales v. State, 517 S.W.2d 785 (Tex.Cr.App.1975), this Court recognized that the new Penal Code altered in some way the pleading requirements in burglary. There the Court stated:

“ . . . Under the definitions of burglary and theft contained in the V.T. C.A., Penal Code, effective January 1, 1974, supra, although the proof will involve the necessity of establishing the intent to commit the offense of theft (Sections 31.02 and 31.03, V.T.C.A., Penal Code), the constituent elements of the particular theft or intended theft need not be alleged in an indictment or information for burglary with intent to commit theft.”

Both the “technical” meaning and “common usage” of the term “steal” carry with their use “without the owner’s effective consent.” See Baldwin v. State, 538 S.W.2d 109 (T’ex.Cr.App.1976), where this Court held that the indictment which charged the accused “ . . . did then and there unlawfully, knowingly and intentionally steal a Master Charge credit card belonging to and from Brenda White” was sufficient to charge an offense of credit card abuse and that theft did not have to be defined. In the Baldwin case as in the present case there was no motion to quash the indictment.

This Court should not hold the indictment fundamentally defective.

OPINION

ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

On original submission, we held that the theft indictment in this case was fundamentally defective. At the time of the offense, V.T.C.A., Penal Code, § 31.03 (1974), provided:

“(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; or
“(2) the property is stolen and the actor obtains it from another or exercises control over the property obtained by another knowing it was stolen.”

The indictment herein alleges, inter alia, that the appellant:

“ . . . did then and there unlawfully exercise control over property, namely one billfold and cash money, with the intent to deprive the owner, George Scearce, hereinafter styled the Complainant, of the property, and the Defendant stole the property from the person of the Complainant.”

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. On appeal, appellant urged that the indictment was fatally defective as it failed to allege the theft was “without the owner’s consent.” On original submission we agreed.

On rehearing the State argues that in the 1974 Penal Code the various theft statutes were consolidated into one offense, V.T. C.A., Penal Code, § 31.03, and that the elements of the one offense are found in subsection (a) of § 31.03 and include the element of “unlawfully.” It contends that subsection (b) merely defines “unlawfully” for the purpose of the theft statute, and the phrase “without the owner’s effective consent” is found only in the definition of “unlawfully” and is not an element of the theft offense.

The Practice Commentary to said § 31.03 appears to support the State’s position when it states:

“The new theft offense consists of the following elements: (1) with intent to deprive (2) the owner (3) of property, the actor (4) obtains the property or exercises control over the property (other than real property) (5) unlawfully.” See and cf. 2 Branch’s 3rd ed., Texas Ann.Penal Statutes, § 31.03, p. 404 (suggested form of indictment).

Under the State’s theory, there is no need to allege “without the owner’s effective consent” as this phrase is found only in the definition of when obtaining or exercising control is “unlawful” and that the allegation in the instant indictment that the appellant “unlawfully” exercised control over property satisfies the requirement that the elements of an offense be pleaded.

The State further takes issue with the manner in which the question was stated in the opinion on original submission. There it was stated that the question presented was:

“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?”

In light of the fact that the indictment alleged “unlawfully exercised control over property” rather than “unlawfully obtained,” the State’s suggestion has merit insofar as the wording of the question presented.

The question is thus restated:

“Does an indictment which attempts to charge theft state an offense when it alleges that the defendant 'unlawfully exercised control over property’ but fails to allege that such control was ‘without the owner’s effective consent.’ ”

In light of the State’s theory of the case, we observe that V.T.C.A., Penal Code, § 1.07(a)(36), provides:

“ ‘Unlawful’ means criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege.”

The State argues that this definition of “unlawful” is used in a general sense in a general statute and that the definition of “unlawful” found in subsection (b) of said § 31.03 is a more restrictive definition applicable to the special statute defining theft. While the State’s argument has merit, it points up the problem before us. The allegation of “unlawfully” pleads only a conclusion of law omitting the facts necessary to that conclusion. The notice requirements of an indictment under the Texas Constitution are not met by that allegation.

In Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976), this court in interpreting § 31.03(a) and (b) determined that the offense of theft is comprised of four different sets of possible elements, as follows:

“(1) a person
“(2) with intent to deprive the owner of property
“(3) obtains the property
“(4) without the owner’s consent

or

“(1) a person
“(2) with intent to deprive the owner of property
“(3) obtains the property
“(4) which is stolen property
“(5) from another
“(6) knowing it was stolen

or

“(1) a person
“(2) with intent to deprive the owner of property
“(3) exercises control over the property, other than real property
“(4) without the owner’s effective consent

or

“(1) a person
“(2) with intent to deprive the owner of property
“(3) exercises control over the property, other than real property
“(4) which is stolen property
“(5) obtained by another
“(6) knowing it was stolen.”

In Ex parte Cannon, supra, it was said:

“An indictment for theft which does not allege all of the elements of one of these methods is fundamentally defective.” (Emphasis supplied.)

The State’s argument that the allegation of “unlawfully” in the instant indictment renders unnecessary the allegation “without the owner’s effective consent” is rejected.

The State’s motion for rehearing is overruled.

DOUGLAS, J., dissents for the reasons stated in his dissenting opinion on original submission.

      . 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.

      . 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.”

      . The previous general theft statute, Article 1410, Vernon’s Ann.P.C. (1925), had not changed since its adoption in the original codification of the Penal Code in July, 1856. An indictment for theft under this statute was required to allege the owner’s lack of consent to the taking of property. Huntsman v. State, 12 Tex.App. 619 (1882); Kitchen v. State, 124 Tex.Cr.R. 358, 62 S.W.2d 144 (Tex.Cr.App.1933); Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971); Martinez v. State, 494 S.W.2d 182 (Tex.Cr.App.1973). Certain other statutes, defining crimes related to theft, and absorbed into the current theft statute in 1974, did not require allegations of lack of consent of the owner. Henderson v. State, 362 S.W.2d 322 (Tex.Cr.App.1962) [Article 1436(e), Vernon’s Ann.P.C., Shoplifting]; Maxwell v. State, 509 S.W.2d 338 (Tex.Cr.App.1974) [Article 1410, Vernon’s Ann. P.C., Theft by false pretext].

      . V.T.C.A., Penal Code, § 31.01(5) provides: “(5) ‘Obtain’ means to bring about a transfer or purported transfer of a nonpossessory interest in property, whether to the actor or another.”

      . See Article I, § 10, Texas Constitution.


source: Caselaw Access Project

author: ODOM, Judge. DOUGLAS, Judge,

license: Public Domain

text:
    Edna Mae AUZENNE, Appellant, v. The STATE of Texas, Appellee.
    No. 52643.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1977.
    Rehearing Denied March 24, 1977.
    Carol S. Vance, Dist. Atty. and Alvin M. Titus, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for the offense of theft, a class A misdemeanor; punishment was assessed at ten days in jail.

We are met at the outset with fundamental error that requires consideration in the interest of justice. Art. 40.09(13), V.A.C. C.P.

The information in this case alleges that appellant:

“. . . on or about June 14, 1975, did then and there unlawfully exercise control over property, namely, one sofa and one stove, of the value of over twenty dollars and under two hundred dollars, with the intent to deprive the owner, H. C. Collins, of the property. Against the peace and dignity of the State.”

The failure of the information in this case to allege that appellant exercised control over the property without the owner’s consent, an essential element of the offense of theft, renders the State’s pleading fundamentally defective. The conviction is therefore void. V.T.C.A., Penal Code Sec. 31.03; Reynolds v. State, Tex.Cr.App., 547 S.W.2d 590, (Decided this day on rehearing).

The judgment is reversed and the information ordered dismissed.

DOUGLAS, Judge,

dissenting.

The indictment should be held sufficient for the reasons set forth in the dissenting opinions in Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App., 1976); Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App., 1976); Herrin v. State, 547 S.W.2d 598 (Tex.Cr.App., 1977). See also the concurring opinion in Jones v. State, 545 S.W.2d 771 (Tex.Cr.App., 1975, motion for rehearing, January 26, 1977).


text:
    Aubrey Allen DANIEL, Appellant, v. The STATE of Texas, Appellee.
    No. 53092.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1977.
    Rehearing Denied March 24, 1977.
    Ogen Hollis Pemberton, Houston, on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Edward A. Dodd, Jr., Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of theft. Punishment was assessed at four years.

We are met at the outset with fundamental error that requires consideration in the interest of justice. Art. 40.09(13), V.A.C. C.P.

The indictment alleges in relevant part that appellant:

“. . . did exercise control over property, namely silverware, of the value of under two hundred dollars, with the intent to deprive the owner, Joske’s of Houston, of the property.”

The failure of the indictment in this case to allege that appellant exercised control over the property without the owner’s consent, an essential element of the offense of theft, renders the State’s pleading fundamentally defective. The conviction is therefore void. V.T.C.A., Penal Code Sec. 31.03; Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App., decided this day on rehearing).

The judgment is reversed and the indictment is ordered dismissed.

DOUGLAS, Judge,

dissenting.

The indictment should be held sufficient for the reasons set forth in the dissenting opinions in Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App., 1976); Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App., 1976); Herrin v. State, 547 S.W.2d 598 (Tex.Cr.App., this day decided). See also the concurring opinion in Jones v. State, 545 S.W.2d 771 (Tex.Cr.App., 1975, motion for rehearing, January 26, 1977).


author: GREEN, Commissioner. DOUGLAS, Judge,

text:
    Robert Lewis SANDERS, Appellant, v. The STATE of Texas, Appellee.
    No. 52642.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1977.
    Rehearing Denied March 24, 1977.

      Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of theft of property of the value of less than two hundred dollars, a third degree felony since appellant had been previously convicted two times of a grade of theft as charged in the indictment. See V.T.C.A. Penal Code, Section 31.03(d)(4)(C). Punishment was assessed at seven years.

Initially, we note that the indictment fails to allege an offense against the laws of the State of Texas, and hence is fundamentally defective and insufficient to invoke the jurisdiction of the trial court. The indictment, in its charging paragraph, alleges that appellant in Harris County, Texas, on or about October 17, 1974,

“did then and there unlawfully commit an offense hereafter styled the primary offense in that he did exercise control over property, namely, money, of the value of under two hundred dollars with the intent to deprive the owner, Big City News of the property . . . .”

Because it failed to allege that the exercise of control of the property was without the owner’s effective consent as required by V.T.C.A. Penal Code, Section 31.03, the indictment was fundamentally defective, and insufficient to invoke the trial court’s jurisdiction over this case. Consequently, this conviction is void. See Reynolds v. State, 547 S.W.2d 590 (No. 51,286, November 3, 1976; State’s motion for rehearing denied February 23, 1977).

The judgment is reversed and the indictment is ordered dismissed.

Opinion approved by the Court.

DOUGLAS, Judge,

dissenting.

The indictment should be held sufficient for the reasons set forth in the dissenting opinions in Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App., 1976); Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App., 1976); Herrin v. State, 547 S.W.2d 598 (Tex.Cr.App., this day decided). See also the concurring opinion in Jones v. State, 545 S.W.2d 771 (Tex.Cr.App., 1975, motion for rehearing, January 26, 1977).


author: ROBERTS, Judge. DOUGLAS, Judge,

text:
    Richard Rudolph HERRIN, Appellant, v. The STATE of Texas, Appellee.
    No. 52769.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1977.
    Rehearing Denied March 24, 1977.
    Paul R. Lawrence, Houston, for appellant.
    Carol S. Vance, Dist. Atty. and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for felony theft. V.T.C.A. Penal Code, Sec. 31.03. The court assessed punishment at seven years.

An examination of the record reveals that the indictment is fatally defective. The indictment alleges that the defendant:

“did then and there unlawfully exercise control of property, namely, money and one truck, of the value of over ten thousand dollars, with the intent to deprive the owner, J. W. Maxcey, of the property.”

For the reasons stated in Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977), decided this day on rehearing, this indictment is fundamentally defective. See also Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976), opinion on rehearing delivered November 10, 1976, and Johnson v. State, 547 S.W.2d 599 (Tex.Cr.App.1977).

The judgment is reversed and the prosecution is ordered dismissed.

DOUGLAS, Judge,

dissenting.

The majority orders the cause reversed and the prosecution of Herrin dismissed on the ground that the indictment is fundamentally defective. He waived a jury and entered a plea of guilty in May of 1975. He swore to the following stipulation of evidence:

“On January 1, 1975 in Harris County, Texas, I did then and there unlawfully exercise control over property, namely, money and one truck, of the value of over ten thousand dollars, with the intent to deprive the owner, J. W. Maxcey, of the property.”

The judge assessed his punishment at seven years. In his brief on appeal, he only contends that the evidence is insufficient to support the conviction. He knew what he was charged with and he has not to this day complained that the indictment is defective.

The indictment charged theft under the terms of Y.T.C.A., Penal Code, Section 31.-03. It should be held sufficient for the reasons set forth in the dissenting opinions in Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976), and Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1976). See also the concurring opinion in Jones v. State, 545 S.W.2d 771 (Tex.Cr.App., Motion for Rehearing, January 26, 1977).

The opposite result from the intent of the Legislature in adopting the present Penal Code is being reached by the majority. Pleadings as construed by the majority under its present holdings have to be more detailed than they were before the adoption of the Code. One of the main arguments for its adoption was that the new Code would have more general provisions concerning theft or other wrongful taking of property and there would not be the minute differences between theft, theft by bailee, theft by false pretext and embezzlement under the former Code. Under the holdings of the majority the number of ways of committing theft have multiplied with geometric progression. Many of the cases that have been and will be reversed and the prosecutions ordered dismissed are those in which the defendant knew what he was charged with and did not even contend that the indictment was defective or that he did not have notice of the offense for which he was charged.

The Legislature might wish to consider appropriate changes in the Code of Criminal Procedure.


text:
    Robert Alexander JOHNSON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 51740.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1977.
    Rehearing Denied March 24, 1977.

      W. C. Wiebusch, Buck C. Miller, on appeal only, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge, Don R. Strickland, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for felony theft under our new Penal Code. Punishment was assessed by the court at five years, probated.

Appellant’s sole ground of error reads as follows:

“The Court erred in overruling Defendant’s Exceptions to the Indictment in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States .of America, Article I, Section 10, of the Constitution of Texas and Articles 1.05 and 21.11, Texas Code of Criminal Procedure, in that the allegations in the indictment failed to state the nature and cause of the accusation against Defendant; specifically, Defendant was unable to determine from the face of the indictment whether he would have to prepare his defense to exercising control over property without the owner’s effective consent or the property was stolen and the Defendant exercised control over the property obtained by another knowing it was stolen.”

We agree. In Ex Parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976), opinion on rehearing, delivered November 10, 1976, we held that an indictment charging burglary with intent to commit theft must either allege such that the entry was “with intent to commit theft” or allege the constituent elements of theft. We further held that in order to allege theft under V.T.C.A., Penal Code, Sec. 31.03, the State must allege how the taking was unlawful; that is, the charging instrument must specifically set out one of the two unlawful methods of taking under Section 31.03(b).

The indictment in this case alleges that the defendant:

“did then and there unlawfully exercise control over property, namely, one stereo, one lawnmower, one kettle cooker, of the value of over two hundred dollars and under ten thousand dollars, with the intent to deprive the owner, Steven George, of the property.”

The indictment clearly fails to allege whether the appellant exercised control of the property without the owner’s effective consent, as required by Section 31.03(b)(1), or whether he exercised control over the property obtained by another, which was stolen property, knowing it was stolen, as required by Section 31.03(b)(2). The indictment is therefore fundamentally defective. Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977), decided this day on rehearing.

The State argues that there are not two unlawful ways of committing theft under this indictment, but “approximately 112.” The State then directs us to the definitions in V.T.C.A., Penal Code, Sec. 31.03, among other things, and suggests that each must be pleaded where applicable.

As we noted in Baldwin v. State, 538 S.W.2d 109, 111 (Tex.Cr.App.1976):

“Ordinarily an indictment which charges an offense in the terms of the statute is sufficient.”

However, see also 1 Branch’s Ann.P.C., 2d ed., Sec. 514, p. 496:

“It is not always sufficient to follow the language of the statute. There are cases that require greater particularity, either from the obvious intention of the Legislature or from the application of known principles of law. [omitting citations]”

We do not believe that Legislative intent or known principles of law require that an indictment or information go beyond the language of the theft statute, as the State contends. Cf. Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973) (case 1); Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975); Page v. State, 532 S.W.2d 341 (Tex.Cr.App.1976). However, as we held in Cannon and Reynolds, the indictment must allege all of the elements of whatever method of theft the State seeks to prove.

For the reasons stated, the judgment is reversed, and the prosecution is ordered dismissed.

DOUGLAS, Judge,

dissenting.

The indictment should be held sufficient for the reasons set forth in the dissenting opinions in Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976); Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1976); Herrin v. State, 547 S.W.2d 598 (Tex.Cr.App., this day decided). See also the concurring opinion in Jones v. State, 545 S.W.2d 771 (Tex.Cr.App.1975, motion for rehearing, January 26, 1977).

      . Of course, the State is still required to allege the location and date of the offense, the name of the complainant, and a particular description of the property, including its value; this is in accord with the provisions of our Code of Criminal Procedure and well-established princi-pies of law. See Arts. 21.02-21.04, 21.09, V.A. C.C.P.; White v. State, 149 Tex.Cr.R. 218, 193 S.W.2d 218 (1946); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976).


author: DAYIS, Commissioner.

text:
    Frank CAVENDER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 52801.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1977.
    Rehearing Denied March 23, 1977.

      Charles D. Butts, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Charles T. Cona-way, Gordon V. Armstrong and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAYIS, Commissioner.

Appeal is taken from a conviction for murder with malice. Punishment was assessed by the jury at seventy-five years.

Prosecution stems from an indictment charging appellant with killing his aunt, Lillian Lucille Garcia, by stabbing her with a knife on or about the 21st day of January, 1972.

Appellant contends that the court erred in overruling his motion for mistrial “when the prosecutor asked appellant if his mother hadn’t told his uncle (Pablo Garcia, the deceased’s husband) that Prank [appellant] had stabbed his aunt (the deceased) and that he (the prosecutor) had ‘all the proof in his file the counsel (defense) wants.’ ”

The record reflects that appellant took the stand in his own behalf and denied the crime. The following occurred during cross-examination which gives rise to appellant’s contention:

“Q. Frank, as a matter of fact, you told your own mother that you went into that house and stabbed and raped your aunt; isn’t that true?
“A. That is negative, sir.
“MR. SEMAAN [defense counsel]: Your Honor, unless he has—
“MR. CONAWAY [prosecutor]: Not only that, but your mother has told your uncle Paul [husband of deceased] that; isn’t that the reason that he is—
“THE WITNESS: That is a lie, sir. “MR. CONAWAY: Isn’t that the reason that he is so angry?
“MR. SEMAAN: Your Honor, I will ask for a mistrial unless he has some real evidence in his file to support that and not—
“MR. CONAWAY: I have all the real evidence in the file that Counsel needs, if he wants it.”

Appellant’s objection was sustained and the jury was instructed that “statements of Counsel in framing questions do not constitute evidence. . . . If a counsel asking a question, whatever he adds, or a matter of fact or brings in, is not admissible in evidence and you are instructed you are not to consider it for any purpose whatsoever.”

Appellant’s motion for mistrial was overruled.

At the conclusion of appellant’s testimony and out of the presence of the jury, counsel for appellant requested that the court determine the prosecutor’s good faith in asking the question and the record reflects the following:

“THE COURT: What is the question based on?
“MR. CONAWAY: Because he told me that. He says that he talked to another sister in California who says that the mother of the defendant told that sister and that sister told him that she—the mother knew that your client had committed the offense and that she felt bad about it. She felt responsible about it because she hadn’t gotten any psychiatric care for him.
******
“MR. SEMAAN: And your basis for the asking of that question is because Pablo Garcia, the husband of the deceased, said that one of his sisters told another of his sisters that the mother of the defendant said that he had killed—he, the defendant, had killed his aunt, the deceased?
“MR. CONAWAY: That’s right.”

Appellant renewed his motion for mistrial, urging that the prosecutor had not established a basis for asking the question, and the same was overruled by the court.

Clearly, the prosecutor’s questions to appellant about telling his mother that he “stabbed and raped” his aunt and the assertion that his “mother has told your uncle Paul that” and inquiry if that were “the reason that he is—” were improper. The prosecutor’s basis for asking same, being bottomed on hearsay several times removed, was far too tenuous to justify the questions.

This Court rarely reversed a conviction of crime solely because an improper question was propounded to the defendant as a witness. To cause reversal, the question must be obviously harmful to the defendant. Gowans v. State, 522 S.W.2d 462; Sensabaugh v. State, 426 S.W.2d 224.

Further, any error in asking an improper question or in admitting improper testimony may be generally cured or rendered harmless by a withdrawal of such testimony and an instruction to disregard. The exception to this general rule occurs where it appears that the question or the evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. Boyde v. State, Tex.Cr.App., 513 S.W.2d 588; Mitchell v. State, Tex.Cr.App., 455 S.W.2d 266; White v. State, Tex.Cr.App., 444 S.W.2d 921.

The State was dependent upon circumstantial evidence for conviction in the instant case. The record was devoid of any evidence of admission by appellant of the crime. There was no evidence of any statement having been made by appellant’s mother to the deceased’s husband about appellant having made such an admission. The prosecutor’s question to appellant about having told his mother that he “stabbed and raped” his aunt was followed by, “your mother has told your uncle Paul that; isn’t that the reason [he is so angry]?” Appellant then objected that the prosecutor did not have evidence to support the asking of the question. The harmfulness of the prosecutor’s questions was compounded by the prosecutor’s response, “I have all the real evidence in the file that Counsel needs, if he wants it.” The inescapable conclusion for the jury to have drawn from the prosecutor’s comment was that he had evidence in his file which would support the fact that appellant had admitted the crime to his mother and that his mother had told his uncle about it. The prosecutor’s question, coupled with his statement that he had all the evidence in the file, was clearly calculated to inflame the minds of the jury, and we find same to be so harmful and prejudicial to appellant that the impression produced on the minds of the jury could not be withdrawn by the court’s instruction. Such error requires reversal of this cause.

We express concern about a number of outbursts by State’s witnesses and, in the event of retrial, we suggest that greater effort be employed by the court in seeing that witnesses restrain themselves in this respect. In making this observation, we are not unaware, as even a cold record demonstrates, that the trial was conducted under highly emotional circumstances and that there was intense feeling by members of deceased’s immediate family toward the appellant. Nonetheless, unresponsive comments by witnesses such as, (1) “That son of a bitch right there, sir, he came and raped my wife and killed her. That son of a bitch right there. And I got proof, too. You want to hear it?”, (2) “I don’t associate with murderers” (in response to the question of whether the witness knew appellant now), (3) “You are as nuts as your client” (directed to appellant’s counsel as the witness left the stand), have no place in the courtroom and tend to militate against an atmosphere which is favorable to a fair trial for an accused. Further, we note that after the court instructed the jury to disregard the witness’ comment “I don’t associate with murderers,” that the prosecutor stated, “On what basis? I think that was a proper answer and called for by the question.” The prosecutor’s comment was clearly improper and could only serve to magnify the harmfulness of the comment by the witness.

For the error heretofore discussed, the judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . The conviction resulting from the first trial of this case was reversed by this Court in Cavender v. State, 515 S.W.2d 277 (1974).


author: ONION, Presiding Judge.

text:
    Roger Paul BARRETT, Appellant, v. The STATE of Texas, Appellee.
    No. 54330.
    Court of Criminal Appeals of Texas.
    March 1, 1977.
    Gene L. Dulaney, Snyder, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

Appellant was convicted of aggravated kidnapping. The conviction followed appellant’s guilty plea before the court, a jury having been waived. Punishment was assessed at imprisonment for fifteen (15) years and one (1) day, and this appeal followed.

The indictment consisted of two counts, each purporting to charge the offense of aggravated kidnapping. At the conclusion of the evidence, the court found appellant guilty without designating under which count of the indictment that determination was made. Since we find the evidence insufficient to sustain a conviction under either count, the judgment must be reversed and the cause remanded.

The evidence to support the guilty plea was stipulated. The sole evidence of the facts of the case was that contained in the written affidavit of Trooper Keith Pherigo of the Texas Highway Patrol. This affidavit detailed the events immediately before and after the attack on and abduction of Pherigo by three men and one woman at the Scurry County Courthouse on December 8, 1975. However, appellant is nowhere identified as one of the attackers or abductors; and, there is no other evidence in the record to connect appellant with the attack on Pherigo or his abduction.

Art. 1.15, Vernon’s Ann.C.C.P., mandates that, in a non-jury, non-capital felony trial, “it shall be necessary for the State to introduce evidence into the record showing the guilt of the defendant . . . .” (Emphasis supplied.) This has long been true even in cases where the guilty plea was before the court. In Edwards v. State, 463 S.W.2d 733 (Tex.Cr.App.1971), this court wrote:

“. . . A plea of guilty before the court in a non-capital felony case constitutes an admission of guilt but it alone does not authorize conviction when a jury trial is waived. The burden remains upon the State to introduce sufficient evidence to show the guilt of the accused and all necessary elements of the offense. Hesbrook v. State, 149 Tex.Cr.R. 310, 194 S.W.2d 260, 262; Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460.”

See also Martin v. State, 491 S.W.2d 421 (Tex.Cr.App.1973); Salinas v. State, 478 S.W.2d 538 (Tex.Cr.App.1972); Fitzsimmons v. State, 471 S.W.2d 858 (Tex.Cr.App.1971); Rodriquez v. State, 442 S.W.2d 376 (Tex.Cr.App.1969); Crawford v. State, 161 Tex.Cr.R. 554, 278 S.W.2d 845 (1955); Hancock v. State, 141 Tex.Cr.R. 568, 150 S.W.2d 385 (1941); Howell v. State, 140 Tex.Cr.R. 627, 146 S.W.2d 747 (1941); Franklin v. State, 140 Tex.Cr.R. 251, 144 S.W.2d 581 (1940); Spivey v. State, 140 Tex.Cr.R. 107, 143 S.W.2d 386 (1940).

Since the evidence in the instant case is insufficient to support the judgment, the judgment is reversed and the cause remanded.

      . In view of our disposition of this case, we find it unnecessary to discuss whether either or both counts of the indictment properly alleged the offense of aggravated kidnapping. Compare Sec. 20.04, New Texas Penal Code Forms.

      . Aggravated kidnapping can be a first or second degree felony. See V.T.C.A., Penal Code, Sec. 20.04, and Smith v. State, 541 S.W.2d 831 (Tex.Cr.App.1976). It is better practice that a finding be made as to the degree
        of the aggravated kidnapping committed and such be incorporated in the judgment and sentence.

      . The judgment contains the recitation that appellant “in open court, in writing, . . waived . . . the appearance, confrontation and cross-examination of witnesses, and agreed that the evidence ... be stipulated,” etc. However, no such written waiver appears in the record. See Hughes v. State, 533 S.W.2d 824 (Tex.Cr.App.1976); Rodriguez v. State, 534 S.W.2d 335 (Tex.Cr.App.1976).


author: BROWN, Commissioner.

text:
    Woodrow POLK, Jr. v. The STATE of Texas, Appellee.
    No. 51255.
    Court of Criminal Appeals of Texas.
    March 9, 1977.

      Ebb B. Mobley, III, court appointed, Longview, for appellant.
    Odis R. Hill, Dist. Atty., and Alvin G. Khoury, Asst. Dist. Atty., Longview, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

Appeal is taken from a conviction for indecency with a child. Punishment was assessed by the jury at seven years.

At the outset, we note that appellant contends the court erred in overruling his motion to quash the indictment based upon the fact that the indictment failed to allege an element of the offense, namely, “intent to arouse or gratify the sexual desire of any person.”

In the recent case of Victory v. State, Tex.Cr.App., 547 S.W.2d 1 (Decided January 21, 1976, State’s Motion for Rehearing overruled, November 3, 1976), we were faced with the identical question, and held that the court erred in failing to grant the motion to quash for the reason that the indictment was defective for failure to allege such culpable mental state.

The judgment is reversed and the prosecution ordered dismissed.

Opinion approved by the Court.

DOUGLAS, J., dissents.


author: DALLY, Commissioner.

text:
    Roy DAVILA, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 52059.
    Court of Criminal Appeals of Texas.
    March 9, 1977.

      Richard D. Bird, court appointed, Chil-dress, for appellant.
    Charles W. Darter, Dist. Atty., Childress, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from an order revoking probation. On April 14, 1975, appellant plead guilty and was convicted of the offense of burglary; his punishment is imprisonment for 4 years. The imposition of sentence was suspended and appellant was granted probation.

After a hearing on the State’s motion to revoke probation, the court found that the appellant had, in violation of a condition of probation that he would commit no offenses against the laws of this State, on or about October 26, 1975, committed the offense of theft. The court revoked appellant’s probation and sentence was imposed on November 18, 1975.

We must first determine whether the indictment is fundamentally defective. The indictment, in pertinent part, alleges that appellant:

“. . . did then and there unlawfully, intentionally and knowingly enter a building, not then open to the public, and without the effective consent of Lemon Bawcom, enter a building owned by the said Lemon Bawcom and did then and there commit theft, to-wit: did then and there unlawfully obtain property from Lemon Bawcom, the owner thereof, without the effective consent of the said Lemon Bawcom . . .”

V.T.C.A. Penal Code, Sec. 30.02 provides in part:

“(a) A person commits an offense if, without the effective consent of the owner, he:
‡ * * ⅜ ⅝: *
“(3) enters a building or habitation and commits or attempts to commit a felony or theft.”

The elements of the offense of burglary under Sec. 30.02(a)(3), V.T.C.A. Penal Code, are as follows:

(1) a person
(2) intentionally or knowingly
(3) enters a habitation or building
(4) without the effective consent of the owner, and
(5) commits or attempts to commit a felony or theft.

The indictment in the case at bar alleged that the appellant “did then and there commit theft,” and immediately thereafter it attempted to allege the elements of theft. This attempt to allege theft failed to allege that the appellant acted “with intent to deprive the owner of property.” The omitted element is an allegation of the culpable mental state required. See Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1976); Johnson v. State, 537 S.W.2d 16 (Tex.Cr.App.1976). Since everything necessary to be proven should be stated in an indictment, Article 21.03, V.A.C.C.P., the attempt to allege theft is fatally defective. Therefore, the question is whether the allegation “did then and there commit theft” is sufficient to allege burglary under V.T.C.A. Penal Code, Sec. 30.02(a)(3), without alleging all of the elements of theft. We hold that it is sufficient.

In Ex parte Cannon, Tex.Cr.App., 546 S.W.2d 266 (delivered Nov. 10, 1976), we held that an indictment for burglary under V.T.C.A. Penal Code, Sec. 30.02(a)(1) or (a)(2), need not allege that the entry was with the intent to commit theft or a named felony, provided it alleges instead the elements of the felony or theft in the indictment. On the other hand, it is not necessary to allege the elements of the felony or theft if the indictment specifically states that the entry was with the intent to commit theft or a specifically named felony. See Gonzales v. State, 517 S.W.2d 785 (Tex.Cr.App.1975).

The appellant in Earl v. State, 514 S.W.2d 273 (Tex.Cr.App.1974), contended that the indictment for robbery should have alleged the constituent elements of the theft in the course of which the robbery was committed. In overruling his argument, this Court said:

"... of course it must be alleged and proven that the alleged offense was committed ‘in the course of committing a theft’ and ‘with intent to obtain or maintain control of the property’ involved in the theft. Although the proof will involve proving up a theft or attempted theft, the elements of the particular theft (see Chapter 31, and specifically Secs. 31.-02 and 31.03, V.T.C.A. Penal Code) or attempted theft (see Sec. 15.01, V.T.C.A. Penal Code), need not be alleged in the indictment.”

We hold that an indictment charging burglary under V.T.C.A. Penal Code, Sec. 30.-02(a)(3) may allege that the accused committed theft or a named felony; or attempted to commit theft or a named felony; or it may allege each of the essential elements of theft or the felony in question. Ex parte Cannon, supra; Gonzales v. State, supra; Earl v. State, supra. The indictment in the case at bar, while no model for pleading, is sufficient to charge burglary under Sec. 30.02(a)(3), supra, and is not fundamentally defective.

Appellant contends that the court abused its discretion because the evidence is insufficient to support the court’s finding that he violated a condition of probation by committing the offense of theft as alleged in the motion to revoke.

Grover Graham was the manager of the Davis Gin in Dodson. The Davis Gin owned a 1961 Chevrolet pickup truck that was taken from Graham’s farm west of Dodson on October 26, 1975. Graham stated that only his two employees were authorized to drive the truck and that he never gave the appellant or anyone else permission to drive the truck. Isabel Lopez and her husband, one of Graham’s employees, lived on Graham’s farm. On October 26, 1975, the appellant and two other persons came to her house and asked to use her car. After she refused to let appellant use her car, they “got mad” and took the pickup truck in question. Lopez did not see who was driving the truck, but appellant was one of the three people in it. She said that neither she nor her husband gave appellant or his companions permission to use the truck. The truck was recovered that same day in Hollis, Oklahoma, by an Oklahoma police officer. The officer, Ronald Zimmerman, had received a report that the truck had been stolen in Collingsworth County, Texas. He found the appellant driving the truck in question, with two male passengers, in an alleyway behind a store in Hollis. Appellant’s brother and sister testified that Isabel Lopez had given their brother permission to use the truck.

The trial judge is the sole judge of the credibility of witnesses and the weight to be given their testimony at the hearing to revoke probation. He may accept or reject any or all of the testimony. Casey v. State, 519 S.W.2d 859 (Tex.Cr.App.1975); Strickland v. State, 523 S.W.2d 250 (Tex.Cr.App.1975). The evidence is sufficient; no abuse of discretion is shown.

Appellant also contends that the court abused its discretion because the motion to revoke probation alleged that the theft occurred in Childress County, while the proof shows that it occurred in Collings-worth County. The condition of probation imposed upon appellant required that he “Commit no offense against the laws of this or any other State or the United States.” The State only has the burden to prove at the revocation hearing that the petitioner violated the laws of this State, some other state, or the United States. Regalado v. State, 494 S.W.2d 185 (Tex.Cr.App.1973). The State met this burden by showing that the appellant committed an offense against the laws of this State.

Where the revocation of probation is based upon a violation of the probationary condition not to violate the law, the allegations of the motion to revoke probation need not be as precise as those of an indictment, but should give fair notice and allege a violation of the law. Acton v. State, 530 S.W.2d 568 (Tex.Cr.App.1975), and cases cited therein. In the case at bar, it would have been proper for the trial court to permit amendment of the motion to revoke so that it would conform to the proof. Franks v. State, 516 S.W.2d 185 (Tex.Cr.App.1974), footnote 3; Cabrera v. State, 494 S.W.2d 177 (Tex.Cr.App.1973); Banks v. State, 491 S.W.2d 417 (Tex.Cr.App.1973). The appellant did not object to the variance between the motion to revoke and the proof in the trial court and raises the question for the first time on appeal. Appellant has not made any complaint or showing that the pleadings failed to give him fair notice of the violation of probation alleged, nor was there any claim or showing that he was surprised or prejudiced by the State’s pleadings. No abuse of discretion is shown.

Appellant asserts that the court abused its discretion in permitting the witness Graham to testify that the value of the pickup truck was over $200.00. The owner of property may testify as to the value of his property even though he is not qualified as an expert on the value of the property. McCormick and Ray, Texas Law of Evidence, Sec. 1422 (1956); Barstow v. Jackson, 429 S.W.2d 536 (Tex.Civ.App.1968). Moreover, it is not necessary to prove the value of a stolen item in a revocation of probation proceeding so long as the item stolen by the probationer had some value. Barnes v. State, 467 S.W.2d 437 (Tex.Cr.App.1971); Hilbish v. State, 485 S.W.2d 554 (Tex.Cr.App.1972). The trial court did not abuse its discretion in revoking appellant’s probation.

The judgment is affirmed.

Opinion approved by the Court.

      . When a conviction has been obtained under a fundamentally defective indictment, the judgment of conviction is subject to collateral attack and may be set aside on the appeal from the order revoking probation. Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976); Standiey v. State, 517 S.W.2d 538 (Tex.Cr.App.1975).

      . While no culpable mental state is mentioned in the language of Sec. 30.02(a)(3), V.T.C.A. Penal Code, Secs. 6.02(b) and (c), supra, clearly require proof of a culpable mental state. Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1975) footnote 1; Baldwin v. State, 538 S.W.2d 109 (Tex.Cr.App.1976).


author: ONION, Presiding Judge. DOUGLAS, Judge,

text:
    Lonnie AILEY, Appellant, v. The STATE of Texas, Appellee.
    No. 52177.
    Court of Criminal Appeals of Texas.
    March 9, 1977.
    Thomas W. George and Terry L. Belt, Austin, for appellant.
    Joe Carroll, Dist. Atty. and Bob D. Odom, Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for compelling prostitution of a person under the age of seventeen years. See V.T.C.A., Penal Code, § 43.05(a)(2). Appellant’s punishment was assessed by the jury at fifteen (15) years in the Department of Corrections and at a fine of $2,000.00.

Appellant’s first contention is that the statute under which he was convicted is vague and uncertain, violating due process of law under the Fourteenth Amendment to the United States Constitution and Article I, § 19, of the State Constitution.

Prior to trial appellant filed a motion to set aside the indictment on the same grounds and it was overruled.

We need not reach the constitutionality of the statute involved as we determine that the indictment is fundamentally defective for failure to allege a culpable mental state.

V.T.C.A., Penal Code, § 43.05, reads as follows:

“(a) A person commits an offense if he knowingly:
“(1) causes another by force, threat, or fraud to commit prostitution; or
“(2) causes by any means a person younger than 17 years to commit prostitution. . . . ” (Emphasis added.)

In Raven v. State, 533 S.W.2d 773 (Tex.Cr.App.1976), it was noted that the elements of compelling prostitution as defined in said § 43.05(a)(2) are (1) a person (2) knowingly (3) causes by any means (4) a person younger than 17 years (5) to commit prostitution.

Omitting the formal parts, the indictment in the instant case alleged the appellant “on or about the 20th day of February, A.D., 1975, and before the presentment of this indictment, in the county and State afore- ‘ said, did then and there cause C_L. Y_, a person under the age of 17 years to commit prostitution . . . .”

The statute requires a culpable mental state be alleged and proved. See Y.T.C.A., Penal Code, § 6.02. The indictment in the instant case fails to allege the culpable mental state of “knowingly,” an essential element of the offense. The indictment is therefore fundamentally defective. Ex parte Garcia, 544 S.W.2d 432 (Tex.Cr.App.1976); Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976); Price v. State, 523 S.W.2d 950 (Tex.Cr.App.1975); Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976).

Without comment we observe further the indictment fails to allege by what means the appellant compelled the prostitution alleged.

For the reason stated, the judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting.

The indictment alleges that appellant caused a named person under the age of seventeen to commit prostitution. No motion to quash the indictment on the ground relied upon by the majority for the dismissal of the prosecution was filed. The appellant knew what he was charged with and made no complaint that the indictment was defective. It is difficult to conceive how one could cause someone to commit prostitution without knowing it. V.T.C.A., Penal Code, Section 43.05(a)(2), provides that one is guilty if by any means he causes a person younger than seventeen years to commit prostitution.

Absent a motion to set aside or to quash the indictment, the prosecution should not be dismissed.

      . V.T.C.A., Penal Code, § 43.01(2), provides “prostitution” is the offense defined in V.T. C.A., Penal Code, § 43.02.

      . Article 21.03, Vernon’s Ann.C.C.P., also requires everything necessary to be proven should be stated in the indictment.


text:
    Guylon Barner ROWL, Appellant, v. The STATE of Texas, Appellee.
    No. 52266.
    Court of Criminal Appeals of Texas.
    March 9, 1977.
    John C. Connolly, Houston, for appellant.
    Carol S. Vanee, Dist. Atty. and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

Appellant waived trial by jury and entered a plea of guilty before the court to the offense of escape, a third degree felony. Punishment was assessed at two (2) years.

Appellant’s court-appointed counsel has filed a brief in which he has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), by advancing one contention which counsel says might arguably support the appeal. See Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969); Jackson v. State, 485 S.W.2d 553 (Tex.Cr.App.1972); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974). A copy of counsel’s brief has been delivered to appellant and appellant has been advised that he would be given an opportunity to examine the appellate record and that he had a right to file a pro se brief. No pro se brief has been filed.

The record reflects that appellant was substantially admonished of the consequences of his plea pursuant to Art. 26.13, Vernon’s Ann.C.C.P., and appellant made a judicial confession admitting his guilt.

Appellant’s arguable contention on appeal is that the indictment in this case is fundamentally defective. The pertinent part of the indictment alleges that the appellant:

“did then and there unlawfully having been charged with the offense of Retaliation, intentionally and knowingly escape from the custody of R. L. Morgan.”

Since the offense of retaliation is a felony, V.T.C.A., Penal Code, Sec. 36.06, this indictment substantially charges, in the language of the statute, the felony offense of escape.

However, counsel urges that the indictment “is fatally defective in that R. L. Morgan, from whose custody Defendant was indicted for escaping, is not identified in said indictment as a person who properly could have had Defendant in his custody. In other words, the indictment fails to identify R. L. Morgan as a Peace officer, or other person who properly would have had Defendant in his custody . .

Clearly, counsel is relying on the definition of “custody” provided in V.T.C.A., Penal Code, Sec. 38.01. That section provides in part:

“Sec. 38.01. Definitions “In this chapter:
******
“(2) ‘Custody’ means detained or under arrest by a peace officer or under restraint by a public servant pursuant to an order of a court.”

Counsel’s argument, stated simply, is that an indictment for escape must allege this definition of the statutory term “custody.”

Appellant’s arguable contention was answered adversely to him in Farmer v. State, 540 S.W.2d 721 (Tex.Cr.App.1976). However, we now take the opportunity to state further reasons for our holding in Farmer and our decision in the case at bar.

We repeat what we said in Johnson v. State, 547 S.W.2d 599 (Tex.Cr.App.1977).

“As we noted in Baldwin v. State, 538 S.W.2d 109, 111 (Tex.Cr.App.1976):
‘Ordinarily an indictment which charges an offense in the terms of the statute is sufficient.’
“However, see also 1 Branch’s Ann.P.C., 2d ed., Sec. 514, p. 496:
‘It is not always sufficient to follow the language of the statute. There are cases that require greater particularity, either from the obvious intention of the Legislature or from the application of known principles of law.’ ”

The indictment in this case follows the language of the escape statute. As in Johnson, we see no reason for concluding that Legislative intent or known principles of law require that the State plead more than the language of this statute. Cf. Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973) (case 1); Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975); Page v. State, 532 S.W.2d 341 (Tex.Cr.App.1976). See Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976); opinion on rehearing delivered November 10, 1976, and Brown v. State, 535 S.W.2d 640 (Tex.Cr.App.1976).

The judgment is affirmed.

DOUGLAS, Judge,

concurring.

The writer is of the opinion that the indictment is sufficient for the reasons stated in the dissenting opinion on motion for rehearing in Victory v. State, 547 S.W.2d 1 (Tex.Cr.App., this day decided).

      . We do not recommend this indictment as a model for future pleading, however. See the more carefully drafted indictment in Booker v. State, 523 S.W.2d 413 (Tex.Cr.App.1975).


author: ODOM, Judge. PHILLIPS, Judge,

text:
    Sammy Lee CHILDS, Appellant, v. The STATE of Texas, Appellee.
    No. 52549.
    Court of Criminal Appeals of Texas.
    March 9, 1977.

      Melvyn Cars on Bruder, Dallas, for appellant.
    Henry Wade, Dist. Atty., Ronald D. Hinds and Mike Keasler, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted for aggravated rape under V.T.C.A., Penal Code Sec. 21.-03(a)(2). Punishment was assessed at twenty years.

Appellant in two grounds of error asserts that the indictment is fundamentally defective because it fails to charge the offense of aggravated rape as set forth in Sec. 21.03, supra.

Appellant made no motion to quash the instrument at trial. The indictment, omitting the formal parts, alleges that the appellant:

“ . . . did then and there knowingly and intentionally by force and threats have sexual intercourse with A_-_M_J_, a female not his wife, and did then and there intentionally and knowingly compel A_M_-J_to submit to such act of sexual intercourse by threatening the imminent infliction of death.”

Section 21.03(a)(2), supra, provides:

“(a) A person commits an offense if he commits rape as defined in Section 21.02 of this code . . . and he:
* ⅜5 * * * *
“(2) compels submission to the rape by threat of death . . . to be imminently inflicted on anyone.”

V.T.C.A., Penal Code Sec. 21.02 defines rape as:

“(a) A person commits an offense if he has sexual intercourse with a female not his wife without the female’s consent.
“(b) The intercourse is without the female’s consent under one or more of the following circumstances:
“(1) he compels her to submit or participate by force that overcomes such earnest resistance as might reasonably be expected under the circumstances;
“(2) he compels her to submit or participate by any threat that would prevent resistance by a woman of ordinary resolution; . . . ”

Appellant contends that the charging instrument is fatally defective because it fails to allege to whom the threat of imminent infliction of death was directed and because it fails to allege all of the requisite elements of rape as defined by Sec. 21.02, supra. We must ascertain whether the indictment, when read as a whole, sufficiently charges the offense of aggravated rape. Banks v. State, Tex.Cr.App., 530 S.W.2d 940; Clark v. State, Tex.Cr.App., 527 S.W.2d 292.

Appellant correctly observes that the indictment does not directly specify the person threatened with the imminent infliction of death. It does, however, allege that appellant made this threat, and that the injured party was compelled to submit to his act because of this threat.

The charging instrument, at the least, alleges that the injured party submitted to the sexual intercourse because of a threat made by the appellant. The specific threat alleged to have been made by the appellant is outlined by the language of Sec. 21.03, supra. A logical deduction arising from a reasonable reading of the entire indictment is that the prosecutrix submitted to appellant’s act because he threatened her with the imminent infliction of death. If the evidence showed that some other person were the object of the threat, it would be a variance between the allegation and the proof.

The indictment is not fundamentally defective for failure to allege to whom the threat of imminent infliction of death was directed. An indictment for aggravated rape should make this allegation. But, absent a motion to quash, no error is presented. The first ground of error is overruled.

Appellant also insists that the indictment fails to allege all of the essential elements of rape as set forth in Sec. 21.02, supra. First, appellant maintains that the indictment must specifically allege that the “force” or “threats” used were the type enumerated in Secs. 21.02(b)(1) and (2), supra. This contention was expressly rejected in Watson v. State, Tex.Cr.App., 548 S.W.2d 676 (1977). Presiding Judge Onion, speaking for the Court, stated:

“The only type of ‘force’ which will support a rape conviction is that which ‘overcomes such earnest resistance as might reasonably be expected under the circumstances.’ The only type of ‘threat’ which will support a rape conviction is that which ‘would prevent resistance by a woman of ordinary resolution.’ ”

It is unnecessary to specifically allege the type of force and threats outlined in Sec. 21.02, supra. Appellant’s assertion is without merit.

Next, appellant claims that the indictment is defective because it does not allege that the act was committed without the female’s consent. Section 21.02, supra.

The indictment does allege, however, that the appellant had sexual intercourse with the victim by force and threats and that he compelled her to submit to this act of sexual intercourse by threatening the imminent infliction of death. The indictment meets the test subscribed to by the majority in Clark v. State, supra.

The lack of consent of the victim is initially indicated by the use of the words “force” and “threats.” In Watson v. State, supra, it was also stated:

“The use in the indictment in the instant case of the general terms ‘force’ and ‘threats’ to describe why consent to sexual intercourse was lacking embrace the special terms or definitions in the statute giving adequate notice to the appellant of the elements with which he was charged.” (Emphasis added.)

The use of the words “force” and “threats” in the indictment in the case at bar also describes “why consent to sexual intercourse was lacking.” Although a direct allegation of lack of consent is not contained in the instrument, when read as a whole (Clark, supra) the indictment sufficiently alleges the injured party’s lack of consent.

Furthermore, the allegation that the victim was compelled to submit to sexual intercourse because of the appellant’s threat to inflict death also implies that there was no consent to the sexual intercourse.

Our position on this issue is not without precedent. In Williams v. State, 1 Tex. App. 90, the Court of Appeals held that an allegation of the complainant’s non-consent was not essential to an indictment for rape. The opinion in that case held that an allegation that the woman was “ravished” was sufficient to imply want of consent. Applying such reasoning to the case at bar supports the conclusion that the language used in this indictment was sufficient to allege that the sexual intercourse occurred without the consent of the prosecutrix.

The second ground of error is overruled.

The judgment is affirmed.

PHILLIPS, Judge,

concurring.

The instant indictment alleged appellant compelled the prosecutrix to submit “by threatening the imminent infliction of death.” Compulsion under these circumstances sufficiently alleges the act that was committed without the female’s consent. See Art. 21.17, V.A.C.C.P.

      . This subsection has been amended since the time of appellant’s trial.

      . For convenience, I restate and reaffirm note 1 of the decision in Banks and apply it to the case at bar: “Although this writer dissented in Clark, supra, we are nevertheless bound by the decision of this Court establishing the above stated test for determining the sufficiency of an indictment. However, the indictment in this case should not be followed as a sound model for future pleading. Had a motion to quash been filed on the grounds now urged, an entirely different question would have been presented and a different result may well have been reached.” 530 S.W.2d 942.

      . Section 21.03, supra, provides that a rape becomes a first degree felony when the actor compels submission to the act by threat of death to be imminently inflicted on anyone. The object of the threat can be one or more persons, but the prosecutrix is always one of the persons to whom the threat is communicated. If this communication compels her to submit to the sexual act, the prohibitions of the statute have been violated.

      . The rape statute, at that time, defined rape as “the carnal knowledge of a woman, without her consent, obtained by force, threats, or fraud.” Paschal’s Digest, Criminal Code, Art. 2184.


text:
    Denelle HARRINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 52625.
    Court of Criminal Appeals of Texas.
    March 9, 1977.

      Percy Foreman and Richard M. DeGue-rin, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Andy Tobias, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of murder; Article 1256, V.A. P.C. (1925); the punishment is imprisonment for life.

Appellant and her husband were jointly indicted for the murder of their two year old daughter, Laini Dearme Harrington. Her husband’s motion for severance was granted and appellant was tried first. The appellant contends that the evidence is insufficient to support the conviction.

At approximately 4:00 a. m. on July 27, 1973, Pasadena Police Officer Irwin was dispatched to an apartment to cheek a possible death. The officer was admitted to the Harringtons’ apartment by the appellant. She told the officer that her little girl was dead and directed him to a bedroom. Irwin checked the child for vital signs and stated that the girl “had apparently been dead for a while.” The deceased’s bedroom smelled of animal excrement and rabbit manure was scattered about. There was human excrement underneath the baby’s crib and smeared against the wall.

Assistant Medical Examiner Giles Green performed an autopsy on the body of the deceased. Dr. Green described the two year old child as follows:

“This child was very small, a little girl, white girl. She was very thin, emaciated, ribs showing, little muscle development a little muscle mass, at least in the arms or legs. She weighed, I think it was, twelve and three-quarters pounds, twenty-seven inches in height . . .”

Dr. Green’s opinion was that the deceased had starved to death. She had been severely malnourished for a very substantial period of time. The child’s death was the result of a very prolonged period of starvation.

Appellant gave the police a statement, after they had complied with the requirements of Article 38.22, V.A.C.C.P. In her statement, appellant said that she had taken the child to the doctor “for shots” during the first year after she was born, but had not taken the child to a doctor since then. She stated that the child had been sick and losing weight over the last two months, but “I didn’t take her to the doctor for one reason because I would get in trouble because of the condition that she was in.” She said that she was a “bad mother” and just did not like small children. On July 26th, the day her daughter died, appellant said she had given her daughter a bottle early in the morning then did not check on her until 10:30 p. m., at which time the child was dead. The police were not called until approximately 4:00 a. m. on July 27th.

Gayle Reise, a neighbor, testified that she first saw the deceased when she was about six months old. At that time the child appeared limp and could not sit up yet. Mrs. Reise said that the child’s eyes were dull and that the little girl would not play or make any sounds. When Mrs. Reise visited the appellant she tried, but was never allowed to see the baby. She said appellant would not refuse to let her see the baby, but “would say it in such a way you wouldn’t go in there.” Appellant told Mrs. Reise that she had tried to feed the baby, but it had spit the food back at her, so she was not going to try to feed it. Appellant’s comment to Mrs. Reise was that “she wasn’t going to let it make a monkey— maybe not monkey — but something, out of her . . .”

Another neighbor, Roylene Babin, was a frequent visitor at appellant’s apartment. Appellant made it known to Miss Babin that “she didn’t care for children.” Appellant would sometimes visit Miss Babin while her husband was at work. Although there was some dispute as to whether the child was at a nursery during these visits, Miss Babin stated that appellant would visit her for eight or nine hours and never go back to her apartment to feed the baby. Appellant had stated that it was nice to visit Miss Babin because she did not have children. Miss Babin would visit in appellant’s apartment once or twice a week yet never saw the baby and never saw appellant feed the baby.

After appellant testified that she did not intentionally kill her baby, the State elicited testimony that appellant and her husband had a son who was older than the deceased. When her son was about a year old, the paternal grandparents took this first baby away from appellant because the baby was suffering from malnutrition and a fractured skull. In her confession, appellant stated that after they gave their son to the grandparents “everything went O.K. for awhile.” She got pregnant again, which she said was strictly an accident. She said she did not want another baby and was unhappy about it.

Medical Examiner Green stated that the autopsy did not reveal that the deceased had any other disease than the extreme degree of malnutrition that caused the child’s death. Dr. Green testified that there is a disease called sprue, which is a defect in the lining membrane of the intestines that prevents food from being properly absorbed. The autopsy revealed that deceased was not suffering from this disease. Jerome Brown, a clinical psychologist, testified that there is a mental defect called anaclitic depression. This defect is a sudden depression that can occur in infants between the ages of six months to about two and one-half years old. This depression is caused by a sudden withdrawal of a mother figure to which the infant is extremely attached. One of the results of anaclitic depression can be that the infant would not eat properly. Dr. Brown was of the opinion that the deceased child was not suffering from mental defect or disease. This opinion was based on appellant’s statements that the deceased child had been eating poorly and losing weight, then the baby changed and began eating again and gaining weight, and then the baby stopped eating again and subsequently died. Dr. Brown stated that anaclitic depression does not shift back and forth in this manner.

Appellant argues that the evidence is insufficient because the circumstantial evidence only amounts to a strong suspicion that she participated in the offense. She also argues that the evidence does not rule out the hypothesis that another person, her husband, was responsible for the child’s death; nor does it rule out the hypothesis that the child would not eat due to a physical or mental defect.

Appellant’s argument that it is reasonable to conclude that her husband could have killed the child since he had equal access to the child is totally misplaced in the circumstances of this case. The deceased child died of starvation. Each parent has a duty to support his or her minor children. Family Code, Sec. 4.02 (formerly Article 4614, V.A.C.S.); Article 602, V.A. P.C. (1925). See also, Family Code, Sec. 12.04, and Ronk v. State, 544 S.W.2d 123 (Tex.Cr.App.1976). Therefore, unless it is shown that one parent has sole and exclusive care, custody, and control of a minor child, both parents may be guilty of anp intentional failure to provide sufficient food and care for a child. The omission or neglect to perform a duty resulting in death, such as of a mother failing to feed her child, may constitute murder where the omission was willful and there was a deliberate intent to cause death. Martinez v. State, 498 S.W.2d 938 (Tex.Cr.App.1973); 40 Am.Jur.2d, Homicide, Sec. 89 (1968); Annot. 61 A.L.R.3d 1207 (1975).

Appellant’s contention that the case of Suff v. State, 531 S.W.2d 814 (Tex.Cr.App.1976) is controlling under the facts of this case is without merit. In Suff the two month old baby died as a result of a sharp blow to the abdomen with a blunt object. This Court affirmed the conviction of the father for the child’s murder but reversed the mother’s conviction due to insufficient evidence. We said that there was not even “a scintilla of evidence” to show that the mother struck the death blow to her baby. In the case at bar, the child’s death resulted from a continuous course of conduct, extending over a prolonged period of time.

The court charged the jury on the law of murder with malice, criminally negligent homicide, circumstantial evidence, concurrent causation, and the duty of a parent to support her minor children. In Floyd v. State, 494 S.W.2d 828 (Tex.Cr.App.1973), this Court stated:

“. . . when a jury, advised of the restrictions which the law places on circumstantial evidence, reaches the conclusion upon evidence properly before them that the accused is guilty, it is not for the reviewing court to supplant their findings by its own unless it is able to point to weaknesses, omissions, or inconsistencies in the evidence which destroy its cogency.”

We hold that: the evidence is sufficient to show that the deceased’s death was caused by the appellant’s failure to perform her duty to support the child; the evidence reasonably excludes the hypothesis that the child had a physical or emotional illness which caused her to reject food and nourishment; and the evidence is sufficient to 'show that appellant and her husband intentionally killed their child by starvation.

Appellant contends that the court erred in failing to delete from her confessions statements concerning an earlier extraneous offense. The portion of the statement complained of concerns her and her husband giving their first child, a boy, to her husband’s parents because she had not been a good mother. Without deciding whether the statement in the confession even shows an extraneous offense, we find that appellant has not properly preserved this complaint for review.

The court held a hearing outside the presence of the jury to determine whether appellant’s confession was voluntary and whether it was made in compliance with Article 38.22, V.A.C.C.P. After the court ruled that the confession was admissible, the appellant objected to the statements concerning the son, contending that it showed an extraneous offense. The court overruled her objection and the jury was returned to the courtroom. Shortly thereafter the State offered the confession in evidence before the jury at which time appellant’s counsel stated, “No objection, Your Honor.”

Appellant argues in her brief that the objection was properly preserved on the basis of Article 40.09, Sec. 6(d), V.A.C.C.P. However, the record clearly indicates that appellant’s counsel withdrew the objection. The objection having been withdrawn, nothing is presented for review. Simon v. State, 406 S.W.2d 460 (Tex.Cr.App.1966); Living v. State, 473 S.W.2d 214 (Tex.Cr.App.1971); McCloud v. State, 494 S.W.2d 888 (Tex.Cr.App.1973).

Appellant also contends the court erred in overruling her motion in limine and allowing the State to prove an extraneous offense. Appellant is again complaining that the court allowed evidence concerning the fact the appellant’s first child was given to the paternal grandparents because this child was suffering from malnutrition and a fractured skull.

Appellant filed a motion in limine urging that the State not be permitted to elicit testimony from three witnesses whom the State subpoenaed and who, it was alleged, would testify to the facts concerning the injury to appellant’s first son. The court granted the motion in limine insofar as it ordered the State not to question these witnesses about this matter before the jury until the court had ruled on the admissibility of this testimony. However, before these witnesses were called to testify, the appellant took the stand in her own behalf. After the appellant testified that she did not intentionally harm the deceased, the State elicited testimony on cross-examination that appellant had a son born prior to the birth of the deceased. This son had lived with appellant and her husband for a year, at which time her husband’s parents took the son away from her. There was testimony that the Child Welfare Department had questioned appellant concerning the fact that the son was suffering from malnutrition and a fractured skull. All of this testimony was admitted without objection.

Generally, a motion in limine will not preserve error; appellant must object on the proper grounds when the evidence is offered during trial. Lopez v. State, 535 S.W.2d 643 (Tex.Cr.App.1976); Simpson v. State, 507 S.W.2d 530 (Tex.Cr.App.1974); Witherspoon v. State, 486 S.W.2d 953 (Tex.Cr.App.1972); Whatley v. State, 488 S.W.2d 422 (Tex.Cr.App.1972). In addition, the only objection voiced when the State called the three witnesses named in the motion in limine was that one witness’ testimony would be hearsay. An objection raised in the trial court must be the same as that raised on appeal. Elizaldi v. State, 519 S.W.2d 881 (Tex.Cr.App.1975). Also, if testimony is admitted without objection, appellant may not complain when testimony concerning the same subject is subsequently admitted. Sherbert v. State, 531 S.W.2d 636 (Tex.Cr.App.1976). Appellant’s complaint that the State did not show that she committed the extraneous offense is not properly preserved for review because this contention was not raised in the trial court. Evans v. State, 499 S.W.2d 123 (Tex.Cr.App.1973). Moreover, in view of the appellant’s defense, the evidence was admissible.

Appellant complains that the State was allowed to introduce her confession with certain portions deleted. She argues that the deletions altered the meaning and context of her statement. When appellant made this objection the court informed her that she had the right to introduce the deleted parts. The record reflects that appellant exercised this right to the fullest extent.

This Court has held that permitting the State to introduce only part of a confession without requiring that the confession be introduced in its entirety is not error because the accused has the right to introduce the remainder. Article 38.24, V.A.C.C.P.; Bizzarri v. State, 492 S.W.2d 944 (Tex.Cr.App.1973); Pineda v. State, 157 Tex.Cr.R. 609, 252 S.W.2d 177 (1952); Holloway v. State, 148 Tex.Cr.R. 33, 184 S.W.2d 479 (1944); Ely v. State, 139 Tex.Cr.R. 520, 141 S.W.2d 626 (1940).

The judgment is affirmed.

Opinion approved by the Court.

      . See Gary Harrington v. State, Tex.Cr.App., - S.W.2d- (decided this day.)