Johnson v. State , 695 S.W.2d 686 ( 1985 )

ALLEN, Justice.

Appellant, Willard Bryant Johnson, appeals his conviction for gambling promotion. We conclude that the indictment in this case fails to give appellant adequate notice of whether he was charged with receiving a bet, in violation of TEX.PENAL CODE ANN. § 47.03(a)(2) (Vernon 1974), or with making a bet, in violation of TEX.PENAL CODE ANN. § 47.02(a)(1) (Vernon Supp.1985). Thus, the indictment in this case suffers from a defect which cannot withstand a motion to quash for insufficiency of notice. Accordingly, we sustain appellant’s second ground of error that the trial court erred in denying his motion to quash and reverse the judgment on that basis.

The indictment in this case alleges that appellant “did unlawfully, intentionally and knowingly receive, over the telephone, a bet made by FRED COCHRAN on the final result of a college football game to be played between Texas A & M University and Baylor University on October 16, 1982, whereby defendant [appellant] and FRED COCHRAN orally agreed that FRED COCHRAN stood to win $500.00 in United States currency from defendant if Baylor University won said game or lost said game by less than two points or to lose $550.00 in United States currency to defendant [appellant] if Texas A & M University won said game by more than two points ...”

Hence, at first, the indictment alleges that appellant received a bet from Cochran, but then, in setting forth the transaction between appellant and Cochran, the indictment alleges that appellant made a bet with Cochran. Consequently, it is impossible to tell from the face of the indictment whether the State meant to indict appellant for receiving a bet, in violation of section 47.03(a)(2), or for making a bet, in violation of section 47.02(a)(1).

Appellant filed a motion to quash based, in part, on insufficiency of notice. Thus, the failure of the indictment to give appellant precise notice of the offense charged against him in itself compels reversal. Jeffers v. State, 646 S.W.2d 185, 188 (Tex.Crim.App.1981).

The concurrence would have this court overrule its prior decision in Adley v. State, 675 S.W.2d 240 (Tex.App.—Dallas 1984, pet. granted) and declare sections 47.-03(a)(2) and 47.02(a)(1) unconstitutional. However, the indictment in this case suffers from a fatal defect which does not stem from any alleged constitutional problem with these provisions, and there is thus no need for this court to address the issue of the constitutionality of these provisions. Therefore, since a decision on the issue of these provisions’ constitutionality is not absolutely necessary for a decision on this case, this court should not address that issue. Smith v. State, 658 S.W.2d 172 (Tex.Crim.App.1983).

There is thus also no warrant for overruling our prior decision in Adley. The indictment in Adley clearly charged the defendant only with the offense of receiving a bet and so is distinguishable from the indictment in the present case. Adley, 675 S.W.2d at 241.

Because we hold that the indictment in this case is fatally defective, we reverse the judgment of conviction and order dismissal of the indictment.

WHITHAM, J., concurring, joined by DEVANY, HOWELL and McCLUNG, JJ. GUITTARD, C.J., and AKIN, CARVER, STEPHENS, SPARLING, VANCE, GUIL-LOT and MALONEY, JJ., join in the majority opinion.