EARL JAMES HUFF, JR., Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed September 25, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-00697-CR
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EARL JAMES HUFF, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
.................................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F88-71496-TN
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O P I N I O N
Before Justices Whitham, Baker, and Ovard
Opinion By Justice Baker
        Earl James Huff, Jr. pleaded guilty to the offense of robbery and appeals his conviction, asserting that the trial court erred in denying his motion to quash the robbery indictment. We disagree and affirm the trial court's judgment.
        Appellant's motion to quash alleged that the indictment denied him adequate notice of charges against him due to the failure of the indictment to clearly set out the essential elements of the offense. On appeal he contends that the indictment failed to specifically define the term "effective consent" and argues that he is entitled to notice of the act or omissions that he committed which constitute the basis of the criminal action. See Adams v. State, 707 S.W.2d 900, 901 (Tex. Crim. App. 1986). Appellant recognizes that the term "effective consent" is statutorily defined but asserts that that does not absolve the State from the obligation of pleading the term with more specificity in the face of a motion to quash requesting such clarification. See Coleman v. State, 643 S.W.2d 124, 125-26 (Tex. Crim. App. 1982).
        The State argues that appellant has waived this ground of error because he failed to raise the objection now asserted at trial. The State relies on article 1.14(b) of the Texas Code Criminal Procedure. The State argues that neither appellant's written motion to quash nor the oral assertions at trial raised this ground. A close reading of appellant's motion to quash reveals a somewhat unartfully drafted paragraph, which if liberally construed, could lead the trial court to the conclusion that appellant was objecting to the indictment's failure to state in any way the statutory basis that the State intended to prove the lack of effective consent. We conclude that appellant has not waived the right to assert this point of error.
        The State also argues that a motion to quash should be sustained only if the facts sought are essential to giving notice. Unless a fact is essential, the indictment need not plead evidence relied on by the State. See Smith v. State, 502 S.W.2d 133, 134 (Tex. Crim. App. 1973). Also, when a term is defined in the statutes, it need not be further alleged in the indictment. See American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex. Crim. App. 1974), appeal dism'd, 419 U.S. 1098 (1975).
        The State relies on Thomas v. State, 621 S.W.2d 158 (Tex. Crim. App. 1981) (op. on reh'g), where it was held that the failure to define effective consent is not subject to a motion to quash because it is purely evidentiary--a matter of proof. The State need only allege no consent or no "effective consent." See Thomas, 621 S.W.2d at 161.
        In our view, appellant's reliance on Coleman v. State is misplaced, and Thomas v. State correctly states the law applicable to this appeal. Appellant's motion to quash relied on the definition of lack of effective consent as set forth in Texas Penal Code Annotated section 31.01(4). As was further stated in Thomas, section 31.01(4) negating effective consent is not to be interpreted as an exhaustive list. The State need only allege the "standard elements of the offense of theft, all else with respect to it becomes purely evidentiary--a matter of proof." Thomas, 621 S.W.2d at 161 n.2. We overrule appellant's point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JAMES A. BAKER
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 90
880697F.U05
 
 
 
File Date[09-25-89]
File Name[880697F]