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Criminal Law Click here for the full text of this decision The indictment does not allege the manner in which the appellant allegedly unlawfully appropriated welfare benefits. The appellant filed a motion to quash, thus triggering the state’s duty to further specify the manner of the alleged unlawful appropriation. FACTS:A jury found Asiya Hosain Askari guilty of violating �31.03 of the Texas Penal Code, Texas’ consolidated theft statute, by collecting Texas welfare benefits through deception. The state asserted at trial that Askari fraudulently claimed her husband, who was earning several thousand dollars each month as a Houston car salesman, did not live in her household, thereby enabling her to receive public assistance to which she was not entitled. On appeal, she challenges the sufficiency of the evidence and claims the trial court erred by denying her pretrial motion to quash the indictment. HOLDING:Affirmed. In her third point of error, Askari contends the trial court erred by overruling her motion to quash the indictment. Askari asserts the indictment failed to, among other things, set forth how the alleged appropriation was unlawful in that it did not state a “manner and means” of how the defendant committed theft. In Berg v. State, 747 S.W.2d 800 (Tex. Crim. App. 1984), the Texas Court of Criminal Appeals reviewed the sufficiency of the evidence supporting Berg’s conviction for theft. The court held: “It is now clear that the State need only allege that the person charged (1) “unlawfully” appropriated personal property (2) with the intent to deprive the owner of the property. See v.T.C.A., Penal Code, Section 31.03. If the State alleges these elements, then they have alleged all that is necessary to establish that the accused has been charged with a crime and all that is necessary to give the accused notice of the crime of which he is accused. The State need not plead the manner of acquisition or the circumstances surrounding the offense. The manner of acquisition or circumstance surrounding the acquisition are merely evidentiary matters and there is no requirement that the State plead evidentiary matters.” Since Berg, many intermediate courts of appeals have reached a different conclusion. In Smith v. State, 761 S.W.2d 546 (Tex. App. � Corpus Christi 1988, no pet.) (citing Gorman v. State, 634 S.W.2d 681 (Tex. Crim. App. 1982)), the 13th Court of Appeals held that a defendant charged with theft may require the state to specify the manner in which the defendant allegedly appropriated the property. In Green v. State, 767 S.W.2d 919 (Tex. App. � Beaumont 1989, pet. ref’d), the 9th Court of Appeals held the trial court erred by denying the defendant’s motion to quash the theft indictment because the indictment did not allege the manner in which the property was allegedly unlawfully appropriated. The Green court found, however, that such a failure did not impact Green’s ability to prepare a defense because the evidence at trial showed Green “was aware of the existence and importance of the state’s case.” The Green court then held the indictment’s failure to allege the manner of the unlawful appropriation did not prejudice Green’s substantial rights. In Noel v. State, 769 S.W.2d 366 (Tex. App. � San Antonio 1989, no pet.), the 4th Court of Appeals held that a defendant, on the filing and presentment of a motion to quash, is entitled to have the theft indictment specify the manner in which the state intends to show the defendant allegedly appropriated the property. The Noel court held the trial court erred by denying Noel’s motion to quash the indictment, but further held the error harmless because the record did not indicate that the indictment’s lack of specificity effected Noel’s ability to prepare a defense. The Noel court also distinguished the Texas Court of Criminal Appeals’ holding in Berg on the basis that Berg addressed evidentiary sufficiency rather than reviewed a motion to quash. In the case now before this court, the indictment alleged Askari, on or about Nov. 1, 2000, and continuing through Dec. 1, 2001, did: “[U]nlawfully . . . appropriate, by acquiring and otherwise exercising control over property, namely, FOOD STAMP BENEFITS, MEDICAID AND AID TO FAMILIES WITH DEPENDENT CHILDREN BENEFITS AKA TEMPORARY ASSISTANCE TO NEEDY FAMILY BENEFITS, owned by the State of Texas, hereinafter the Complainant, with the intent to deprive the Complainant of the property and the total value of the property appropriated was over $1,500.00 dollars and under $20,000.00 dollars.” The indictment does not allege the manner in which Askari allegedly unlawfully appropriated welfare benefits. Askari filed a motion to quash, thus triggering the state’s duty to further specify the manner of the alleged unlawful appropriation. The trial court erred by denying Askari’s motion to quash. The court must now decide whether such error was harmful. On appeal, Askari contends “the state’s theory is simply not apparent from the face of the “elastic’ pleading; moreover, the defense hotly contested the State’s accusation of unlawful appropriation.” First, in her opening statement before the presentation of the state’s case at trial, Askari’s counsel told the jury he expected the evidence to show Ali moved out of the couple’s household during the time in which Askari received benefits and, for cultural reasons, the couple did not share the existence of marital discord with their extended families. Counsel’s argument makes it clear Askari was aware the state intended to prove the manner of unlawful appropriation was by making a false statement to TDHS regarding Ali’s residency in the household. Second, Askari’s concession on appeal that the defense “hotly contested” the state’s accusation of unlawful appropriation supports the court’s conclusion that the indictment’s failure to allege the manner of illegal appropriation had no detrimental impact on Askari’s ability to present a defense. The court finds Askari has failed to show the trial court’s failure to quash the indictment created reversible error. OPINION:Morriss, C.J.; Morriss, C.J., Ross and Carter, JJ.

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