Kellar v. State

"In a case of aggregated theft under 31.09, the indictment must allege the 'continuing course of conduct' element, but there is no pleading requirement that it include the specific acts of theft that are aggregated. Here, the indictment, by its language 'pursuant to one scheme and continuing course of conduct,' satisfied the requirements of �31.09."

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Criminal Law No. 2099-01, 6/18/2003. Click here for the full text of this decision FACTS: This case presents the issue whether, in an aggregated theft case, each separate theft must be specifically alleged in the charging instrument. HOLDING: Affirmed. The court holds that, under Texas Penal Code �31.09, the indictment must allege only aggregation, not the specific acts of theft. The appellant cites Washington v. State, 909 S.W.2d 577 (Tex. App. – Corpus Christi 1995, no pet.), in which the court of appeals asserted, in dicta, that ” Turnerholds that aggregation is only allowed under Texas Penal Code �31.09 and that each theft must be pleaded.” The latter clause of the statement is an incorrect interpretation of Turner v. State, 636 S.W.2d 189 (Tex. Crim. App. 1982). In a case of aggregated theft under �31.09, the indictment must allege the “continuing course of conduct” element, but there is no pleading requirement that it include the specific acts of theft that are aggregated. Here, the indictment, by its language “pursuant to one scheme and continuing course of conduct,” satisfied the requirements of �31.09. While the statute does not require the level of specificity in an indictment urged by the appellant, a defendant does have a constitutional right to sufficient notice so as to enable him to prepare a defense. However, this due process requirement may be satisfied by means other than the language in the charging instrument. When a motion to quash is overruled, a defendant suffers no harm unless he did not, in fact, receive notice of the state’s theory against which he would have to defend. The record in this case clearly shows that the appellant had actual notice of the specific instances of theft upon which the state was basing its allegations. In a series of pretrial hearings, the prosecutor agreed to provide the defense with information related to the individual transactions that were aggregated in the indictment. Defense counsel had access to four binders containing documentation of 149 transactions showing instances of theft by the appellant. Furthermore, the state filed a document entitled “state’s answer to pretrial rulings and notice of extraneous conduct,” which included an itemized list of transactions upon which the state intended to rely. The list showed the date, check number and amount of each transaction and a specific range of dates during which the transactions occurred. The state later amended its filing to provide notice of additional transactions that it intended to use in its case-in-chief, itemizing them in the same way. Finally, the state filed notice that it had filed with the court clerk bound copies of business records and affidavits to be introduced as evidence at trial. Given the extensive and detailed discovery that occurred prior to trial, the appellant had ample notice in addition to that provided by the indictment. Because each separate theft need not be alleged in an indictment charging aggregated theft under �31.09, and because there was no violation of constitutional notice requirements in this case, the trial court properly overruled the appellant’s motion to quash. OPINION: Womack, J., delivered the opinion for a unanimous court.

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