                                   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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