Opinion
No. 05-05-00452-CR
Opinion Filed July 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-55491-TW. Affirm.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
OPINION
A jury convicted Alvin Demon Arnold of aggravated robbery of an elderly person and assessed punishment at twenty-one years in prison and an $800 fine. In two issues, appellant complains the trial court erred in denying his motion to quash the indictment and in overruling his hearsay objections to the presentence investigation report. We affirm. Apolonia Puga was walking to the bus stop one morning when he was attacked by appellant and another man. The men demanded his money, knocked him to the ground, kicked and hit him, and took his glasses and keys. Among other injuries, Puga suffered a broken rib in the attack. Two women passing by in a car witnessed the attack and called the police, who arrested appellant and the second suspect within minutes. In his first issue, appellant complains the trial court erred in denying his motion to quash the indictment for failing to specify which of several statutory alternative definitions it intended to rely on regarding appellant's conduct. In particular, appellant argues the terms "effective consent" and "deprive" were not sufficiently specific to provide notice to him We disagree. The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d 599, 601(Tex.Crim.App. 2004). We review de novo the trial court's ruling to deny a motion to quash. Id. A motion to quash should be granted only where the language concerning the defendant's conduct is so vague or indefinite as to deny the defendant effective notice of the acts he allegedly committed. State v. Seibert, 156 S.W.3d 32, 35 (Tex.App.-Dallas 2004, no pet.).
Here, the indictment charged that appellant did unlawfully then and there while in the course of committing theft and with intent to obtain and maintain control of the property of APOLONIO PUGA, hereinafter called complainant, the said property being EYEGLASSES AND HOUSE KEYS, without the effective consent of the said complainant and with intent to deprive said complainant of said property, did then and there intentionally and knowingly cause bodily injury to said complainant, by striking complainant with defendant's hand and by kicking complainant with defendant's foot, and the said complainant was at the time of the offense at least 65 years of age or older[.]Initially, we question whether appellant has adequately briefed his complaint. While he has set out the applicable law over six pages in his brief, he has failed to explain how this law applies to his particular circumstances. Regardless, we agree with the State's analysis of this issue. Robbery is no longer a form of theft; rather, it is a form of assault. Ex parte Hawkins, 6 S.W.3d 554, 560 (Tex.Crim.App. 1999). As explained by the court in Earl v. State,
the actual commission of the offense of theft is not a prerequisite to commission of a robbery . . . Of course it must be alleged and proven that the alleged offense was committed "in the course of committing a theft" and "with intent to obtain or maintain control of the property" involved in the theft. Although the proof will involve proving up a theft or attempted theft, the elements of the particular theft . . . or attempted theft . . . need not be alleged in the indictment.514 S.W.2d 273, 274 (Tex.Crim.App. 1974). "Intent to deprive" is an element of theft. See Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2005). Since particular elements of theft need not be alleged in an aggravated robbery indictment, the trial court could not have erred in failing to require the State to more specifically define the terms "effective consent" and "deprive." Even if the elements of theft were required to be alleged, the court of criminal appeals has held that, in the more common theft scenarios, such as the one presented in this case, "effective consent" does not need to be more specifically pleaded. See Geter v. State, 779 S.W.2d 403, 407 (Tex.Crim.App. 1989) ("One who simply snatches an item takes without the effective consent of the owner and, under such circumstances, the term `effective consent' need not be plead more specifically because all else is purely evidentiary."). Similarly, this Court has previously concluded that the term "deprive" need not be more specifically pleaded in a theft prosecution. See Grice v. State, 635 S.W.2d 890, 892 (Tex.App.-Dallas 1982, pet. ref'd) (concluding `intent to deprive' not act or omission but "particular mental state of the accused which must be shown to have been present at the time of the exercising control over the personal property."). We reject the first issue. In his second issue, appellant complains the trial court erred in overruling his hearsay objections to the PSI. Appellant acknowledges that this issue has previously been decided against him in Fryer v. State, 68 S.W.3d 628 (Tex.Crim.App. 2002); however, he complains the PSI is inadmissible under the Confrontation Clause of the Sixth Amendment. Appellant did not lodge this complaint below; accordingly, it is waived. See Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000) (concluding Confrontation Clause complaint waived if not made at trial). Issue two is without merit. We affirm the trial court's judgment.