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Criminal Cases decided by the 5th Court of Appeals on July 10, 2017

The 5th Court of Appeals decided THE STATE OF TEXAS, Appellant v. GEORGE DAVID RINGER, Appellee, on July 10, 2017.

The Court issued a memorandum opinion dismissing Appellant’s appeal for Misapp. of Fid. Prop. or Prop. of Financial Inst..

The Court reversed and remanded the Trial court’s dismissal of an indictment. From the trial court:

The State of Texas appeals the trial court’s orders granting motions to quash the indictments filed against George David Ringer. In a single issue, the State contends the trial court erred in determining appellee did not receive sufficient notice as a matter of law. Because we conclude the information provided to appellee was sufficient to inform him of the nature of the accusations against him, we reverse the trial court’s orders and remand both causes for further proceedings.

On June 7, 2011, appellee was indicted for theft of property and misapplication of fiduciary property with aggregate values of $200,000 or more in each case.

The trial court conducted two hearings on the motions. At the hearings, appellee essentially argued it was unclear from the indictments, complaint, and discovery how the payments he made to himself were illegal. The State responded that appellee was given more than adequate information to show the accusations made against him and to allow him to prepare his defense. The indictments tracked the language of the penal code provisions appellant was accused of violating and the Scholten complaint further detailed the substance of the allegations made by the State. The information provided to appellee specified that he was accused of taking money from Solar Soccer Club without its consent or authorization. In addition, the State submitted as an exhibit a document appellee had been given in discovery listing the specific checks the prosecution intended to rely on at trial to show both theft and misapplication of fiduciary property. According to the State, any other information appellee claimed was lacking was evidentiary in nature and not required to be included in the charging instrument. The trial court granted appellee’s motions to quash and the State brought this appeal.

In its sole issue, the State contends the trial court erred in granting appellee’s motions to quash the indictments. We first address appellee’s argument that the State failed to preserve this issue for review because it “did not complain” about the ruling. Appellee appears to suggest that, although the State clearly contested the motions to quash, and the arguments on appeal are the same ones raised in the trial court below, the State was required to further object to the trial court’s decision in order to preserve error. Rule 33.1(c) specifically states that a party is not required to make a formal exception to a trial court’s ruling to preserve error. See TEX. R. APP. P. 33.1(c). Further, article 44.01(a) of the Texas Code of Criminal Procedure specifically authorizes the State to appeal an order of a court in a criminal case that “dismisses an indictment.” See TEX. CODE CRIM. PROC. ANN. art. 44.01(a) (West Supp. 2016). Accordingly, appellee’s argument is without merit.

The sufficiency of an indictment is based on the right to notice as provided in both the United States and Texas Constitutions. See Smith v. State, 297 S.W.3d 260, 267 (Tex. Crim. App. 2009). The indictment must be specific enough to inform the defendant of the nature of the accusations against him so that he may prepare a defense. Id. A charging instrument that tracks the language of the criminal statute possesses sufficient specificity to provide a defendant with notice of the charged offense in most circumstances. See State v. Edmond, 933 S.W.2d 120, 128 (Tex. Crim. App. 1996). Where circumstances dictate that more than the statutory language is needed, the notice requirement may be satisfied by means other than the language in the charging instrument. See Smith, 297 S.W.3d at 267.

In this case, the indictments properly tracked the language of the statutes appellee was charged with violating. Appellee argues he was not provided with the specific transactions the State intended to rely on to show criminal liability. We agree that where large numbers of transactions are involved, the State may have to identify which ones comprise the offense the State intends to rely on to show a violation of the statute. See Moff, 154 S.W.3d at 603 (unreasonable to require defendant to prepare defense for every credit card and cash transaction in seven-year period). Here, the State provided appellee with a list of the checks it intended to rely on to show the illegal conduct. The Scholten complaint asserts appellee wrote checks to himself out of the Solar bank account without the knowledge, consent, or authorization of anyone associated with Solar. This information was more than sufficient to inform appellee of the transactions for which he needed to prepare a defense. See Kellar, 108 S.W.3d at 313-14 (itemized list showing date, check number, and amount of transaction sufficient to give defendant notice.).

This post first appeared on The Dallas Lawyer, please read the originial post: here

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Criminal Cases decided by the 5th Court of Appeals on July 10, 2017


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