Affirmed and Memorandum Opinion filed June 14, 2018.




                                        In the

                     Fourteenth Court of Appeals

                               NO. 14-17-00398-CR

                         PRASENJIT GHOSH, Appellant
                                          v.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 184th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1472624

                  MEMORANDUM OPINION
      Appellant Prasenjit Ghosh appeals his conviction for theft in a single issue.
Appellant argues that the indictment in this case was fundamentally defective and
void, failing to give the trial court jurisdiction. We conclude that the indictment was
sufficient to confer jurisdiction to the trial court. We modify the judgment and
affirm.
                                 I. BACKGROUND

      Appellant was indicted on June 22, 2015. The indictment read as follows:

      IN THE NAME AND BY AUTHORITY OF THE STATE OF
      TEXAS
      The duly organized Grand Jury of Harris County, Texas, presents in the
      District Court of Harris County, Texas, that in Harris County, Texas,
      PRASENJIT GHOSH, hereafter styled the Defendant, heretofore on
      or about OCTOBER 7, 2014, did then and there unlawfully,
      appropriate by acquiring and otherwise exercising control over
      service, namely, DENTAL SERVICES, provided by CATHY
      BRUGGEN, hereafter styled the Complainant, of the value of over one
      thousand five hundred and under twenty thousand dollars, intending to
      avoid payment for the service and knowing that the service is provided
      by the Complainant only for compensation
      AGAINST THE PEACE AND DIGNITY OF THE STATE[.]

(fourth emphasis added). The indictment was signed by the foreman of the 351st
Grand Jury. In the heading area of the indictment, above the quoted charging
language, there is a line that reads, “FELONY CHARGE THEFT BY CHECK.”

      On March 14, 2016, appellant entered a plea of guilty to the above indictment.
All of the plea documents reflect appellant entering a plea to the offense of “Theft
by Check.” Appellant was placed on deferred adjudication in the form of community
supervision. In May of 2016, the State filed a motion to adjudicate guilt, alleging
violations of the conditions of community supervision. In April of 2017, the trial
court conducted a hearing on the motion to adjudicate guilt. The trial court found
that appellant had violated conditions of his community supervision and found him
guilty of the charge under the indictment. The trial court then assessed punishment
at 14 months’ confinement in the State Jail Division of the Texas Department of
Criminal Justice. The judgment adjudicating appellant’s guilt reflects that he was
convicted of the offense of “Theft by Check.”

                                         2
                                        II. ANALYSIS

       Appellant argues that the indictment was fundamentally defective and void,
failing to vest the trial court with jurisdiction because the indictment is labeled
“Theft by Check,” and “Theft by Check” is not an offense. Appellant ignores the
fact that the indictment alleges the offense of theft of services. Appellant’s argument
implies that incorrect labeling of the charge in the indictment makes it a nullity,
regardless of whether it actually alleges some offense. We disagree.

       The sufficiency of an indictment is a question of law which an appellate court
reviews de novo. See State v. Zuniga, 512 S.W.3d 902, 906 (Tex. Crim. App. 2017).

       The Texas Constitution provides definitions for “indictment” and
“information,” the two formal of charging instruments in Texas. “An indictment is
a written instrument presented to a court by a grand jury charging a person with the
commission of an offense. An information is a written instrument presented to a
court by an attorney for the State charging a person with the commission of an
offense.” Tex. Const. art. V, § 12(b). Further, the Constitution states that “[t]he
practice and procedures relating to the use of indictments and informations,
including their contents, amendment, sufficiency, and requisites, are as provided by
law.” Id. With regard to jurisdiction, “[t]he presentment of an indictment or
information to a court invests the court with jurisdiction of the cause.”1 Id.

       Article 21.02 of the Texas Code of Criminal Procedure lists the requisites of
an indictment, including that it must “set forth” the offense alleged “in plain and
intelligible words.” Tex. Code Crim. Proc. Ann. art. 21.02(7) (West 2014). Article




       1
         Because there is no allegation that the indictment was not properly presented, the sole
issue before us is the sufficiency of the indictment.

                                               3
21.11 of the Texas Code of Criminal Procedure sets forth what is required for a
“sufficient” indictment. See Tex. Code Crim. Proc. Ann. art. 21.11 (West 2014).

        An indictment shall be deemed sufficient which 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; and in no case
        are the words ‘force and arms’ or ‘contrary to the form of the statute’
        necessary.
Id. “An indictment that tracks the language of a statute usually gives sufficient
notice.” State v. Jarreau, 512 S.W.3d 352, 354 (Tex. Crim. App. 2017) (citing State
v. Mays, 967 S.W.2d 404, 406–07 (Tex. Crim. App. 1998)).                   With these
constitutional and statutory requirements in mind, we turn to the indictment in this
case.

        An indictment satisfies constitutional requirements if it “accuses someone of
a crime with enough clarity and specificity to identify the penal statute under which
the State intends to prosecute.” Duron v. State, 956 S.W.2d 547, 550–51 (Tex. Crim.
App. 1997). Chapter 31 of the Texas Penal Code lists a variety of theft-related
offenses. See Tex. Penal Code Ann. §§ 31.01–31.19 (West 2014). Pursuant to our
inquiry, we note that an offense called “Theft by Check” is conspicuously absent
from the penal code. See id. The penal code does contain a presumption that relates
to “Theft by Check or Similar Sight Order.” See Tex. Penal Code Ann. § 31.06
(West 2014). Appellant is correct that an indictment could not allege the offense of
“Theft by Check” because there is no such offense. However, our analysis cannot
end there. We must look at the language in the indictment and determine if it accuses
appellant with enough clarity and specificity to identify the penal statute under which
the State prosecuted appellant. See Duron, 956 S.W.2d at 550–51.


                                           4
      The State asserts that the indictment sufficiently alleged the offense of “Theft
of Service” found in section 31.04 of the Texas Penal Code. “A person commits
theft of service if, with intent to avoid payment for service that the actor knows is
provided only for compensation . . . [,] the actor intentionally or knowingly secures
the performance of the service by agreeing to provide compensation and, after the
service is rendered, fails to make full payment after receiving notice demanding
payment.” Tex. Penal Code Ann. § 31.04(a)(4) (West 2014). The language in the
indictment does not track the statutory elements for the offense of theft of service
verbatim. However, it is apparent that the indictment accused appellant of failing to
pay for dental services he received. The conduct alleged in the indictment clearly
corresponds to the aforementioned elements as set forth in penal code.           The
constitutional and statutory requirements for the indictment have been satisfied. We
overrule appellant’s sole issue.

      Although not raised as an issue, we note that the Judgment Adjudicating Guilt
in this case reflects a conviction for “THEFT>=$1,500<$20K BY CHECK.” As we
previously noted, no such offense exists in the Texas Penal Code. Accordingly, on
our own motion, we modify the “Offense for which Defendant Convicted” portion
of the Judgment to reflect that appellant was convicted of the offense of
“THEFT>=$1,500<$20K OF SERVICE.” See Tex. R. App. P. 43.2(b) (courts of
appeals have authority to modify judgment); Bigley v. State, 865 S.W.2d 26, 27–28
(Tex. Crim. App. 1993) (same); Estrada v. State, 334 S.W.3d 57, 63–64 (Tex.
App.—Dallas 2009, no pet.) (same).




                                          5
                                III. CONCLUSION

      The judgment of the trial court is affirmed as modified.



                                      /s/       Marc W. Brown
                                                Justice

Panel consists of Justices Boyce, Jamison and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                            6
