State of Texas v. Lee Allison Goins ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00392-CR
STATE of Texas,
Appellant
v.
Lee Allison GOINS,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CR2733
Honorable Raymond Angelini, Judge Presiding 1
Opinion by: Irene Rios, Justice
Sitting: Rebeca C. Martinez, Justice
Irene Rios, Justice
Beth Watkins, Justice
Delivered and Filed: May 15, 2019
AFFIRMED
The State of Texas appeals the trial court’s interlocutory order quashing one count of an
indictment. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(1) (authorizing an appeal from an order
dismissing an indictment). In a single issue, the State argues the trial court erred because the
allegations in the indictment provided the defendant with legally sufficient notice of the charged
offense. We affirm.
1
The Honorable Raymond Angelini, retired, was sitting by assignment and signed the order challenged on appeal.
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BACKGROUND
A grand jury returned a two-count indictment against Lee Allison Goins. Count one of the
indictment alleged:
[O]n or about the 4th Day of January, 2018, LEE ALLISON GOINS, while in the
course of committing theft of property and with intent to obtain and maintain
control of said property, did use and exhibit a deadly weapon, NAMELY: HOT
LIQUID, and defendant did intentionally, knowingly and recklessly cause bodily
injury to HUNTER JOHNS, hereinafter referred to as complainant, by
THROWING HOT LIQUID AT AND ON COMPLAINANT[.]
(emphasis added). Goins filed a motion to quash, contending that count one, which purported to
charge Goins with aggravated robbery, was defective because it failed to describe the property
involved in the underlying theft and failed to provide her adequate notice to prepare a defense.
The State opposed the motion to quash, claiming the allegations in the indictment were
legally sufficient. According to the State, the law did not require the inclusion of a description of
the property in an aggravated robbery count.
The trial court granted the motion and quashed count one of the indictment. The trial court
did not specify the basis for its ruling. The State appealed.
NOTICE AND STANDARD OF REVIEW
The Texas and United States Constitutions afford a criminal defendant the right to fair
notice of the specific charged offense. State v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim. App.
2008). “The charging instrument must convey sufficient notice to allow the accused to prepare a
defense.” Id. Texas law provides that an indictment is sufficient when it:
charges the commission of the offense in ordinary and concise language in such a
manner as to enable a person of common understanding to know what is meant, and
with that degree of certainty that will give the defendant notice of the particular
offense with which he is charged, and enable the court, on conviction, to pronounce
the proper judgment.
TEX. CODE CRIM. PROC. ANN. art. 21.11.
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A complaint that an indictment fails to provide adequate facts to give the defendant notice
of the offense charged is a complaint about a defect in the indictment’s form. Olurebi v. State, 870
S.W.2d 58, 61 (Tex. Crim. App. 1994). When the defendant files a motion to quash raising a valid
complaint about a defect in form and she brings it to the trial court’s attention before trial, the State
must respond by amending the indictment to include a specific allegation about what it will rely
upon for conviction. Amaya v. State, 551 S.W.2d 385, 387 (Tex. Crim. App. 1977).
An indictment that tracks the statutory text of the penal statute usually provides the
defendant with sufficient notice. State v. Jarreau, 512 S.W.3d 352, 354 (Tex. Crim. App. 2017);
Barbernell, 257 S.W.3d at 251. “[A] charging instrument drafted in the language of the penal
statute is generally sufficient to provide an accused with adequate notice because the terms of the
statute inform him or her of the nature of the charge.” State v. Zuniga, 512 S.W.3d 902, 909 (Tex.
Crim. App. 2017).
The elements of aggravated robbery are (1) in the course of committing theft of property,
(2) with the intent to obtain or maintain control of the property, the accused (3) intentionally,
knowingly, or recklessly causes bodily injury to another, and (4) uses or exhibits a deadly weapon.
See TEX. PENAL CODE ANN. §§ 29.03(a), 29.02; Earl v. State, 514 S.W.2d 273, 274 (Tex. Crim.
App. 1974). “Since theft is only the underlying offense for the robbery, the elements and facts
surrounding the theft need not be alleged in the indictment.” Linville v. State, 620 S.W.2d 130, 131
(Tex. Crim. App. 1981).
Because the sufficiency of an indictment is a question of law, we review a trial court’s
decision to quash an indictment de novo. Jarreau, 512 S.W.3d at 354; State v. Moff, 154 S.W.3d
599, 601 (Tex. Crim. App. 2004). We must uphold the trial court’s ruling if it is correct on any
theory of law applicable to the case. Zuniga, 512 S.W.3d at 909.
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ANALYSIS
On appeal, the State argues that the allegations in count one of the indictment were “legally
sufficient to give [Goins] notice of the crime with which she [was] charged, and the law is well
settled that the State does not have to include a description of the property taken in an [a]ggravated
[r]obbery allegation for the indictment to provide legally sufficient notice.” In support of this
argument, the State cites cases holding that a charging instrument alleging aggravated robbery
need not describe the specific property involved in the underlying theft. On the other hand, Goins
contends on appeal, as she contended in the trial court, that the allegations in count one were
insufficient because they (1) failed to inform her of the nature of the charge against her, and (2)
failed to provide her with adequate notice to allow her to prepare a defense.
In evaluating the trial court’s ruling, we must analyze both contentions raised in Goins’s
motion to quash. See id. (providing that the court of appeals must uphold the trial court’s ruling on
a motion to quash if it is correct on any theory of law applicable to the case).
Notice of the Nature of the Charge
“[T]o give sufficient notice, the face of an indictment must allege, in plain and intelligible
language, all the facts and circumstances required to establish the material elements of the offense
charged.” State v. Hernandez, 395 S.W.3d 258 260 (Tex. App.—San Antonio 2012, no pet.).
“Subject to rare exceptions, an indictment tracking the language of the statute will satisfy
constitutional and statutory requirements.” State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App.
1998); see Barbernell, 257 S.W.3d at 251. The Texas Court of Criminal Appeals has held that a
charging instrument alleging aggravated robbery is not required to describe the specific property
involved in the underlying theft to provide an accused with sufficient notice of the offense with
which she is charged. Hightower v. State, 629 S.W.2d 920, 922-23 (Tex. Crim. App. 1981)
(concluding the indictment in an aggravated robbery case gave the defendant sufficient notice of
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the offense with which he was charged without particularly describing the property allegedly taken
or intended to be taken in the course of committing theft); Hill v. State, 568 S.W.2d 338, 339 (Tex.
Crim. App. 1978) (same); Earl, 514 S.W.2d at 274 (“Although the proof will involve proving up
a theft or attempted theft, the elements of the particular theft [] or attempted theft [] need not be
alleged in the indictment.”).
Here, the allegations in count one tracked the language of the aggravated robbery statute
and alleged every element of aggravated robbery. As discussed above, Texas courts have held that
the State is not required to include a property description to charge the offense of aggravated
robbery. Hightower, 629 S.W.2d at 922-23; Hill, 568 S.W.2d at 339; Earl, 514 S.W.2d at 274.
We, therefore, conclude the allegations in count one were sufficient to inform Goins of the nature
of the charge against her.
Notice to Prepare a Defense
Next, we must address Goins’s contention that count one of the indictment failed to provide
her with sufficient notice to allow her to prepare a defense. See Zuniga, 512 S.W.3d at 909
(concluding that even though the indictment alleged every element of the offense, the appellate
court was still required to consider whether the indictment failed to provide the defendant with
adequate notice to prepare her defense); see Drumm v. State, 560 S.W.2d 944, 946 (Tex. Crim.
App. 1977) (noting that the issue in the case was not whether the charging instrument was
“defective on its face, but whether it can withstand attack by a motion to quash for failure to give
adequate notice on which to prepare a defense.”).
At the motion to quash hearing, Goins’s counsel advised the trial court that during
discovery she had learned that the “property” referenced in count one could be one of two items.
Specifically, Goins’s counsel advised the trial court:
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My problem with this case is in looking at the evidence that’s been tendered
by the State, there are possibly—which my client does deny—but there are possibly
two different thefts with two different items . . . but it doesn’t have any description
as to which one they are talking about. So without that information, I am unable to
prepare for this defense. I would be caught surprised at trial.
….
One of the alleged thefts, that theft was actually committed by another person.
It involved Jif Peanut Butter, and it was committed by somebody else that’s on
video; and that’s supported by the witness statements.
That theft was stopped and there was a hot liquid that was thrown at that point
in time by my client, but there are different defense arguments with that.
Within minutes of that, my client returns into the store, refills the cup of coffee
that she has already paid for and then tries to leave the store and then drops the cup
in that store. And before she drops the cup, she actually throws the cup into the
clerk’s face.
So we have two different aggravated robberies . . . . I don’t know which one the
State is going to be proceeding on, and I don’t know what defenses to be able to
line up for voir dire and going forward on the case. That is where the unfair surprise
is coming.
In her appellate brief, Goins persists in her contention that count one did not provide her
sufficient notice to prepare a defense. Specifically, Goins argues “there are two separate sets of
circumstances, with two separate defenses, that could warrant aggravated robbery charges.” In its
appellate brief, the State does not address Goins’s contention that count one did not provide her
notice to prepare a defense, nor does it explain why the trial court’s ruling should not be upheld
on this basis.
A defendant has a constitutional right to sufficient notice to enable her to prepare a defense.
Kellar v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003). Both the United States and Texas
Constitutions grant a criminal defendant the right to fair notice of the specific charged offense.
U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10; TEX. CONST. art. 5 § 12b. These constitutional
guarantees require that notice of the nature and cause of the accusation be given with sufficient
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clarity and detail to enable a defendant to anticipate the State’s evidence and prepare a proper
defense. Moff, 154 S.W.3d at 601-02; Hernandez, 395 S.W.3d at 260.
“The charging instrument must convey sufficient notice to allow the accused to prepare
[her] defense.” Mays, 967 S.W.2d at 406. While in many cases a charging instrument that tracks
the statutory text of an offense is sufficient to provide a defendant with adequate notice to prepare
a defense, in some cases such a charging instrument may not be sufficient. See Moff, 154 S.W.3d
at 602 (recognizing the trial court may “require the State to amend an indictment which tracks the
language of the statute when more notice is needed so that the accused can adequately prepare a
defense.”). “When considering a motion to quash the indictment, it is not sufficient to say the
defendant knew with what offense [she] was charged; rather, the question presented is whether the
face of the indictment or charging instrument sets forth in plain and intelligible language sufficient
information to enable the accused to prepare [her] defense.” Lewis v. State, 659 S.W.2d 429, 431
(Tex. Crim. App. 1983). In analyzing whether the allegations in an indictment are sufficient to
prepare a defense, we view the allegations from the defendant’s perspective. Drumm, 560 S.W.2d
at 946 (noting that a timely claim of inadequate notice “calls for examination of the criminal
accusation from the perspective of the accused.”).
Two Texas Court of Criminal Appeals cases guide our disposition here. In Drumm, the
defendant was charged with the offense of driving with a suspended license. 560 S.W.2d at 945.
Although the charging instrument alleged that the defendant’s license was suspended, it failed to
allege the specific ground for suspension. Id. The defendant filed a pre-trial motion to quash,
complaining that the charging instrument failed to give him notice of which offense the suspension
was predicated upon and, therefore, denied him the opportunity to prepare a defense. Id. at 945-
46. The Court of Criminal Appeals agreed that the defendant was entitled to the requested notice
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and concluded that the motion to quash should have been granted. Id. at 947. The Court of Criminal
Appeals explained:
Defendant’s argument in substance is that [the criminal statute] provides for
automatic suspension of the driver’s license without notice upon final conviction
for any one of several offenses, and that in order to prepare his defense he is entitled
to notice of the suspension grounds relied on by the state. In the face of the
constitutional presumption of innocence to which every accused is entitled, it
cannot be claimed by the state, when there is a motion to quash on these grounds,
that appellant knew the grounds for the suspension of his license. There may exist
several such grounds for suspension, and there may exist various defenses to some
or all of those grounds. It is not for us to speculate on possible defenses; those are
for the accused and counsel to investigate, prepare, and establish if they can. In
order to perform that duty, however, the accused is entitled to notice of the
particular cause for suspension upon which the state will rely. The accused is not
required to anticipate any and all variant facts the state might hypothetically seek
to establish. When the defendant petitions for sufficient notice of the state’s charge
by motion to quash adequately setting out the manner in which notice is deficient,
the presumption of innocence coupled with his right to notice requires that he be
given such notice.
Id.
In Adams v. State, the defendant was charged with obscenity after police seized two films
from him. 707 S.W.2d 900, 901-02 (Tex. Crim. App. 1986). The defendant filed a pre-trial motion
to quash, arguing the charging instrument was deficient because it did not specify which film the
State alleged to be obscene. Id. at 902. The defendant argued that he needed to know which film
formed the basis of the State’s allegations because he wanted to prepare a defense based on the
content of the film. Id. The trial court denied the motion to quash, and the defendant was convicted.
Id. at 900. Ultimately, the Court of Criminal Appeals affirmed the conviction, concluding that the
defendant was not harmed by the defect in the charging instrument. Id. at 904. However, the Court
of Criminal Appeals acknowledged that the trial court should have granted the motion to quash
because the charging instrument failed to inform the defendant which film the State intended to
prove was obscene. Id. at 902-03.
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In the present case, Goins’s counsel explained to the trial court that it appeared the State
had two different aggravated robbery theories, each of which called for a different defense at trial.
Under the first theory, the State would assert that the theft component of aggravated robbery was
satisfied by the taking of a jar of peanut butter, and Goins’s defense would be that she was not
involved in taking the jar of peanut butter. Under the second theory, the State would assert that the
theft component of aggravated robbery was satisfied by the taking of a cup of coffee, and Goins’s
defense would be that she had already paid for the coffee. Goins’s counsel further explained to the
trial court that unless the indictment was amended to show which theory the State was pursuing,
she was unable to anticipate the State’s evidence and would be caught by surprise at trial. Thus,
Goins’s counsel clearly articulated how the State’s failure to describe the property in the
indictment hindered her ability to prepare a defense.
“[T]he accused has the right to notice that is specific enough to allow [her] to investigate
the allegations against [her] and establish a defense.” Moff, 154 S.W.3d at 602. Viewing the
allegations in the indictment from Goins’s perspective, we conclude count one failed to provide
Goins with sufficient notice to allow her to anticipate the State’s evidence and to prepare a defense.
See Adams, 707 S.W.2d at 903; Drumm, 560 S.W.2d at 947. We, therefore, hold that the trial court
did not err in quashing count one of the indictment.
CONCLUSION
We affirm the trial court’s order.
Irene Rios, Justice
Do not publish
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