                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                               ____________________
                                NO. 09-12-00456-CR
                               ____________________

                       THE STATE OF TEXAS, Appellant

                                         V.

                   MARTIN JOSEPH LEVERETT, Appellee
_______________________________________________________           _____________ _

                    On Appeal from the 163rd District Court
                            Orange County, Texas
                         Trial Cause No. B-120,121-R
________________________________________________________            ____________ _

                                     OPINION

      In this appeal, the State argues the trial court erred by quashing Martin

Joseph Leverett’s indictment. We hold the trial court properly quashed the

indictment. We affirm the trial court’s order.

                                    Background

      The State indicted Leverett for felony theft. Specifically, the indictment the

trial court quashed alleges:



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      [Leverett] . . . did then and there unlawfully appropriate by acquiring
      and otherwise exercising control over property other than real
      property, to wit: gold and jewelry, of the value of at least $1,500.00
      but less than $20,000.00 from the owner, [M.M.], without the
      effective consent of said owner and with intent to deprive said owner
      of said property[.]

      Several months after he was indicted, Leverett filed a motion asking the trial

court to quash his indictment. In his motion, Leverett complained the indictment

needed to more specifically describe the gold and jewelry that he had allegedly

stolen. See Tex. Code Crim. Proc. Ann. art. 21.09 (West 2009) (explaining the

amount of detail required in describing personal property in an indictment).

      Subsequently, the trial court conducted a hearing on Leverett’s motion.

During the hearing, the State argued that the indictment was not deficient, but also

argued that if it was, the State should be given additional time to satisfy any due

process requirements by providing Leverett notice by means other than the

language in the indictment, allowing the State to provide Leverett with more detail

regarding the property at issue. See Kellar v. State, 108 S.W.3d 311, 314 (Tex.

Crim. App. 2003) (holding that the State’s itemized list containing dates, check

numbers, and amounts of multiple transactions provided defendant with sufficient

notice to prepare a defense).

      During the hearing, the trial court determined that the indictment did not

provide the description required by article 21.09. The trial court set a second
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hearing, to occur four weeks later, to give the State an opportunity to provide a

property description by other means. At the conclusion of the first hearing, the trial

court advised the prosecutor that at the next hearing, the court expected the State to

explain how it provided Leverett with a sufficient description of the property it

alleged he had stolen. Additionally, the trial court warned the State that it would

quash the indictment if it determined the State had failed to provide Leverett with

notice by other means. At the subsequent hearing, the State informed the trial court

that it had not provided Leverett with any more information about the property at

issue. At that point, the trial court granted Leverett’s motion to quash.

      On appeal, the State contends that the exact number of pieces of gold and

jewelry that Leverett took are unknown to it, argues that the indictment sufficiently

alleges an offense involving the theft of gold and jewelry, and suggests that at

some point, Leverett’s attorney inspected the State’s file, allowing his attorney to

have access to additional information about the items at issue. According to the

State, the State’s file contains receipts from two pawn shops describing specific

pieces of gold and jewelry that were sold by Leverett. But, the State never

provided the receipts to the trial court, and they are not in the record before us on

appeal.




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                                 Standard of Review

      The sufficiency of an indictment presents a question of law; therefore, a trial

court’s ruling on a motion to quash is reviewed using a de novo standard. Smith v.

State, 309 S.W.3d 10, 13-14 (Tex. Crim. App. 2010). Article 21.09 of the Code of

Criminal Procedure describes the degree of detail to which an indictment is

required to describe property that is alleged by the State to have been stolen. See

Tex. Code Crim. Proc. Ann. art. 21.09. Article 21.09 provides:

      If known, personal property alleged in an indictment shall be
      identified 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.

Id.

      Leverett’s indictment neither alleges that the information regarding the

property at issue was unknown, nor describes the number of pieces of gold and

jewelry that were allegedly stolen; but, the indictment does describe the kind of

property at issue by using a general classification. See id. (“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.”). During the hearing, the

State did not argue that it did not know what specific pieces of gold and jewelry it

intended to prove were stolen; instead, the State argued that “[i]t’s our position that

                                          4
the specific pieces of [gold and] jewelry would be factual in nature, and would be

specific factual allegations, and that is not something that the State is required to

allege in the indictment.”

      All of the cases on which the State relies in its brief involved indictments

that had more specific property descriptions than the property description provided

by the indictment at issue. In Welch v. State, the Court of Criminal Appeals held

that an indictment alleging that seven rifles were stolen was a sufficient description

of the property that the defendant had stolen. 543 S.W.2d 378, 379-80 (Tex. Crim.

App. 1976). In State v. Czaplinski, an information alleging the defendant had

stolen two pairs of shorts, one shirt, and one dress, complied with the requirements

of article 21.09. 956 S.W.2d 839, 840, 842 (Tex. App.—Austin 1997, no pet.).

Thus, in the cases on which the State relies, the charging instrument identified the

stolen property by kind and by number. See Welch, 543 S.W.2d at 379; Czaplinski,

956 S.W.2d at 840; see also Tex. Code. Crim. Proc. Ann. art. 21.09. Even if we

were to accept the State’s argument that the indictment provides Leverett sufficient

notice with respect to the kind of property stolen in cases in which it has not

alleged that such information is unknown, Leverett’s indictment is silent regarding

the number of articles of gold and the number of articles of jewelry that he is

alleged to have stolen.

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      On appeal, the State argues that its open file policy allowed Leverett to

obtain more detail regarding the property that it intended to prove he had stolen.

The State also contends that Leverett’s attorney reviewed the file. However, the

transcript from the second motion to quash hearing reflects that the State never

advised the trial court that it had pawn shop receipts in its file or that Leverett’s

attorney had seen them, nor did the State provide the trial court with the receipts.

Thus, the trial court was never asked to determine whether the information in the

receipts could serve as a sufficient substitute for the information that article 21.09

requires.

      Generally, to present a complaint on appeal, a party is required to obtain a

ruling from the trial court on its request. Tex. R. App. P. 33.1(a). Here, the trial

court was never asked to rule on whether the information in its file could substitute

for the information required by article 21.09 of the Code of Criminal Procedure.

We hold that by failing to present the documents that it claims provide substitute

notice and obtaining a ruling on its claim that the documents in the file provided

sufficient notice, the State has failed to preserve its substitute notice argument for

our review on appeal. See Tex. R. App. P. 33.1.

      As Leverett’s indictment does not state that the property he is alleged to

have stolen is unknown, we conclude that Leverett’s indictment does not comply

                                          6
with the requirements of article 21.09 of the Code of Criminal Procedure. We

overrule the State’s sole issue, and affirm the trial court’s order.

      AFFIRMED.




                                               _____________________________
                                                      HOLLIS HORTON
                                                           Justice

Submitted on May 1, 2013
Opinion Delivered May 8, 2013
Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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