
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-97-00070-CR



The State of Texas, Appellant


v.



San Juanita Czaplinski, Appellee






FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY

NO. 461-010, HONORABLE WILFRED AGUILAR, JUDGE PRESIDING






	The State charged appellee San Juanita Czaplinski with committing a Class B misdemeanor
theft.  See Tex. Penal Code Ann. § 31.03 (West 1994 & Supp. 1997).  Czaplinski moved to quash the
State's information, arguing that the information failed to provide her with sufficient constitutional and
statutory notice of the acts that she allegedly committed.  After two pretrial hearings, the trial court ordered
the State's information quashed.  In a single point of error, the State argues that the trial court abused its
discretion by mandating more specificity than either the statute or precedent requires.  We agree and will
reverse the trial court's order quashing the information.

BACKGROUND

	The State charged Czaplinski with the offense by information.  The information described
the property allegedly stolen as "TWO (2) PAIRS OF SHORTS, ONE (1) SHIRT AND ONE (1)
DRESS of the value of $50 or more but less than $500 . . . ."  Czaplinski's motion to quash argued that
this property description failed to give the notice required by article 21.09 of the Code of Criminal
Procedure, the Sixth Amendment of the U.S. Constitution, (1) and article I, Section 10 of the Texas
Constitution. (2)  Article 21.09 directs that an indictment for theft of personal property must identify the
property "[i]f known, . . . by name, kind, number and ownership.  When such is unknown, that fact shall
be stated, and a general classification describing and identifying the property as near as may be, shall
suffice."  Tex. Code Crim. Proc. Ann. art. 21.09 (West 1989) (emphasis added).  Article 21.23 provides
that the rules governing allegations and the certainty required in an indictment also apply to an information. 
Id. art. 21.23 (West 1989).

STANDARD AND SCOPE OF REVIEW
	We review a trial court's order quashing an information for an abuse of discretion.  See
Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim App. 1981) (trial judge allowed sound discretion in
granting motion to quash indictment); State v. Pierce, 816 S.W.2d 824, 830 (Tex. App.--Austin 1991,
no pet.) (no abuse of discretion to quash information because jurat failed to identify properly the authority
or official character of person before whom complaint sworn).
	The court's order does not reveal the basis for the court's ruling, but it refers to the record. 
The court did make oral remarks from the bench suggesting the court based its ruling on statutory rather
than constitutional grounds.  Czaplinski argues the court's ruling was broad and not based solely on
statutory grounds.  Because the basis of the trial court's ruling is not entirely clear, we will address each
of the possible bases for the ruling.

DISCUSSION
	The State first argues that the trial court abused its discretion by disregarding precedent
concerning the sufficiency of personal property descriptions for notice purposes.  The State identifies a
number of cases in which courts have found similar descriptions sufficient.  In particular, a case directly on
point held that an alleged theft of "two suits" satisfied the notice requirement of article 21.09.  See Bruner
v. State, 509 S.W.2d 620, 621 (Tex. Crim. App. 1974); see also Baldwin v. State, 175 S.W. 701
(1915) ("one suit of clothes" sufficiently descriptive).  The Bruner court rejected the argument that the
indictment was insufficient because it failed to allege "the kind of property taken, i.e., 'whether the suits are
women's suits, children's suits, men's suits, suit's (sic) of cards, costumes, or merely suits of clothing.'" 
509 S.W.2d at 621. (3)
	In a case involving receipt of stolen property, the court of criminal appeals undertook an
extensive review of cases involving personal property descriptive averments.  See Wood v. State, 632
S.W.2d 734, 736-37 (Tex. Crim. App. 1982) (reviewing both pre-1975 amendment cases and post-1975
amendment cases).  The Wood court concluded that an adequate description alleges:  (1) quantity; (2) the
general type of property--but more specifically than just "property" or "merchandise"; (3) ownership; and
(4) the jurisdictional value of the property, if necessary.  Id. (descriptions "one truck tractor" and "one
automobile" complied with article 21.09).  Given this statutory interpretation and its precedential support,
the State's information appears adequately descriptive.
	Czaplinski presents several other arguments to support her contention that the description
in the information is insufficiently specific.  She suggests that she received insufficient notice under the Texas
and U.S. Constitutions and that the allegedly deficient notice increased her risk of being twice put in
jeopardy.
	Czaplinski does not offer any argument or authority supporting her statement that the
information failed to meet the constitutional standard of notice.  See Tex. R. App. P. 38(h) (briefs must
contain clear, concise argument and citation to authority).  We note that nothing in the record suggests the
description in the information interfered with Czaplinski's ability to prepare a defense.  Despite the sparse
briefing on this point, in the interest of justice, we will consider her jeopardy argument, which is somewhat
more developed.
	As for the double jeopardy argument, we consider it premature at best.  Czaplinski bases
her argument on the proposition that the right to avoid double jeopardy includes a right to avoid being put
at risk of a second prosecution--a right that Czaplinski claims arises during the first proceeding.  The
affirmative defense of former jeopardy legally embodies the right not to be tried twice for the same offense. 
Therefore, a double jeopardy argument may only properly be raised if the first prosecution reached the
point at which jeopardy is deemed to have attached and a subsequent prosecution (or the threat of one)
has ensued.  In Crist v. U.S., the U.S. Supreme Court extended to the states the federal rule that jeopardy
attaches when the jury is sworn.  437 U.S. 28, 38 (1978).  Texas formally adopted the federal rule in
1979.  See McAlwee v. State, 589 S.W.2d 455, 457-58 (Tex. Crim. App. 1979).  In a bench trial,
jeopardy attaches when both sides have announced ready and the defendant has pled to the charging
instrument.  See State v. Torres, 805 S.W.2d 418, 421 (Tex. Crim. App. 1991).  As the Court pointed
out in Crist, "only if that point has once been reached does any subsequent prosecution of the defendant
bring the guarantee against double jeopardy even potentially into play."  Id. at 32-33 (citations omitted)
(emphasis added).  Jeopardy clearly had not yet attached in the first proceeding, and nothing in the record
indicates that Czaplinski had any reason to believe that the State would subject her to a second prosecution
for the same offense.
	Although Czaplinski cites primarily constitutional authority for her double jeopardy
argument, she apparently relied in part on statutory authority as well. (4)  Article 21.04 of the Texas Code
of Criminal Procedure requires sufficient certainty in an indictment (or information) to allow the accused
to plead any judgment given upon it as a bar to subsequent prosecution for the same offense.  Tex. Code
Crim. Proc. Ann. art. 21.04 (West 1989). 
	The cases that address this issue indicate that article 21.04 does not require any greater
specificity than article 21.09, discussed above.  E.g., Welch v. State, 543 S.W.2d 378, 380 (Tex. Crim.
App. 1976).  In a case interpreting the precursor to the current statute, the court explained that "[t]his is
not a new rule.  It is not designed [to require the description] to be so minute in detail, as to entirely
supersede the proof of identity, when the judgment is pleaded in bar of the same offense."  Horan v. State,
24 Tex. 161, 161 (1859).  The information must allege the essential elements of the offense.  Tex. Code
Crim. Proc. Ann. art. 21.03 (West 1989); see Beck v. State, 682 S.W.2d 550, 554 (Tex. Crim. App.
1985).  The State need not plead evidentiary facts, unless those facts are essential to provide notice.  See
Moreno v. State, 721 S.W.2d 295, 300 (Tex. Crim. App. 1986); Thomas v. State, 621 S.W.2d 159,
161 (Tex. Crim. App. 1981).  Evidentiary facts need not be stated for the purpose of distinguishing the
information because the defendant may prove them, thus establishing the identity of the offense and
protecting himself or herself from a second prosecution.  See Beck, 682 S.W.2d at 556, n.5; Horan, 24
Tex. at 164.
	We have already held the State's information provides adequate notice under article 21.09. 
Czaplinski's request for more details describing the property seeks merely evidentiary facts, which the State
need not offer.  We, therefore, sustain the State's point of error.

CONCLUSION

	Because we hold that the State's information gave Czaplinski sufficient notice, we reverse
the order quashing the information and remand the cause for further proceedings. 

 
		_____________________________________________
		Jimmy Carroll, Chief Justice
Before Chief Justice Carroll, Justices Jones and Kidd
Reversed and Remanded
Filed:   December 4, 1997
Publish
1.      	The Sixth Amendment gives the accused in a criminal prosecution "the right . . . to be informed of
the nature and cause of the accusation."  U.S. Const. Amend. VI.
2.      	Article I, Section 10 states that the accused has "the right to demand the nature of the cause of the
accusation against him, and to have a copy thereof."  Tex. Const. art. I, § 10.
3.      	Although the Legislature amended article 21.09 in 1975, the court of criminal appeals has since
clearly stated that the amended article does not require any more specific description from the State than
before.  See Welch v. State, 543 S.W.2d 378, 380 (Tex. Crim. App. 1976) (indictment describing
property taken as "seven rifles of the total value of at least $200.00 but less than $10,000.00" met statutory
requirement; State need not allege brand name, date of manufacture, or whether rifle was automatic, bolt,
or pump action, even if known).
4.      	We assume that Czaplinski bases her argument, at least in part, on Texas Code of Criminal
Procedure article 21.04 because she uses its language in her brief when discussing the trial court's ruling. 
See Tex. Code Crim. Proc. Ann. art. 21.04 (West 1989).  Also, she argues that if the State were to
replead an identical information she would not know whether the second information was for the same items
taken from the same place.  Although no mention of the statute could be found in the record or her brief
and Czaplinski cites no authority which properly supports her statutory argument, we will address her
contention because it is at least somewhat developed.


LE="font-family: CG Times Regular">	Although Czaplinski cites primarily constitutional authority for her double jeopardy
argument, she apparently relied in part on statutory authority as well. (4)  Article 21.04 of the Texas Code
of Criminal Procedure requires sufficient certainty in an indictment (or information) to allow the accused
to plead any judgment given upon it as a bar to subsequent prosecution for the same offense.  Tex. Code
Crim. Proc. Ann. art. 21.04 (West 1989). 
	The cases that address this issue indicate that article 21.04 does not require any greater
specificity than article 21.09, discussed above.  E.g., Welch v. State, 543 S.W.2d 378, 380 (Tex. Crim.
App. 1976).  In a case interpreting the precursor to the current statute, the court explained that "[t]his is
not a new rule.  It is not designed [to require the description] to be so minute in detail, as to entirely
supersede the proof of identity, when the judgment is pleaded in bar of the same offense."  Horan v. State,
24 Tex. 161, 161 (1859).  The information must allege the essential elements of the offense.  Tex. Code
Crim. Proc. Ann. art. 21.03 (West 1989); see Beck v. State, 682 S.W.2d 550, 554 (Tex. Crim. App.
1985).  The State need not plead evidentiary facts, unless those facts are essential to provide notice.  See
Moreno v. State, 721 S.W.2d 295, 300 (Tex. Crim. App. 1986); Thomas v. State, 621 S.W.2d 159,
161 (Tex. Crim. App. 1981).  Evidentiary facts need not be stated for the purpose of distinguishing the
information because the defendant may prove them, thus establishing the identity of the offense and
protecting himself or herself from a second prosecution.  See Beck, 682 S.W.2d at 556, n.5; Horan, 24
Tex. at 164.
	We have already held the State's information provides adequate notice under article 21.09. 
Czaplinski's request for more details describing the property seeks merely evidentiary facts, which the State
need not offer.  We, therefore, sustain the State's point of error.

CONCLUSION

	Because we hold that the State's information gave Czaplinski sufficient notice, we reverse
the order quashing the information and remand the cause for further proceedings. 

 
		_____________________________________________
		Jimmy Carroll, Chief Justice
Before Chief Justice Carroll, Justices Jones and Kidd
Reversed and Remanded
Filed:   December 4, 1997
Publish
1.      	The Sixth Amendment gives the accused in a criminal prosecution "the right . . . to be informed of
the nature and cause of the accusation."  U.S. Const. Amend. VI.
2.      	Article I, Section 10 states that the accused has "the right to demand the nature of the cause of the
accusation against him, and to have a copy thereof."  Tex. Const. art. I, § 10.
3.      	Although the Legislature amended article 21.09 in 1975, the court of criminal appeals has since
clearly stated that the amended article does not require any more specific description from the State than
before.  See Welch v. State, 543 S.W.2d 378, 380 (Tex. Crim. App. 1976) (indictment describing
property taken as "seven rifles of the total value of at least $200.00 but less than $10,000.00" met statutory
requirement; State need not allege brand name, date of manufacture, or whether rifle was automatic, bolt,
or pump action, even if known).
4.      	We assume that Czaplinski bases her argument, at least in part, on Texas Code of Criminal
Procedure article 21.04 because she uses its language in her brief when discussing the trial court's ruling. 
See Tex. Code Crim. Proc. Ann. art. 21.04 (West 1989).  Also, she argues that if the State were to
replead an identical information she would not know whether the second information was for the same items
taken from the same place.  Although no mention of the statute could be found in the record or her brief
and Czaplinski cites no authority which properly supports her statutory argument, we will address her
contention becaus