CYNTHIA D. GRINSTEAD , Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 11, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01316-CR
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CYNTHIA D. GRINSTEAD , Appellant
V.
THE STATE OF TEXAS, Appellee
 
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On Appeal from the County Criminal Court #9
Dallas County, Texas
Trial Court Cause No. M88-34376-K
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O P I N I O N
Before Justices McClung, Lagarde and Ovard
Opinion By Justice McClung
        Cynthia Grinstead appeals her conviction of theft of property for which the court assessed punishment at 90 days confinement probated for twelve months, and an $800 fine. Grinstead complains that the information is fundamentally defective in that it is inherently vague and uncertain on the element "without effective consent" thereby depriving Grinstead of adequate notice of the charges against her and depriving her of due process of law. She also contends that section 31.03 of the Texas Penal Code , as interpreted by the Texas Court of Criminal Appeals, is so inherently vague and ambiguous, as to deprive Grinstead of due process of law as guaranteed by the fourteenth amendment to United States Constitution.
        Grinstead first asserts that the charging instrument in this case is fundamentally defective due to vagueness in the allegation as to one of the elements of the offense. The information alleged that the property was appropriated without the owner's effective consent in that "no assent in fact" was given by the owner or a person legally authorized to act for the owner. In Thomas v. State, 753 S.W.2d 688 (Tex. Crim. App. 1988), the court stated:
        Assent in fact, whether expressed or apparent is the definition given for the term "Consent" by Penal Code § 1.07(a)(9) and is applicable to the statutory definition of theft under Penal Code § 31.03(b)(1). Appropriation of property is "without the owner's effective consent" if either (1) it is without his "assent in fact" or (2) his "assent in fact" is rendered ineffective by one or more of the circumstances listed Penal Code § 31.01(4), including "deception." Cf. Penal Code § 1.07(a)(12). However, the State need not allege in its indictment which of these circumstances it will seek to prove at trial. See Thomas v. State, 621 S.W.2d 148 (Tex. Crim. App. 1981) (Opinion on State's Motion for Rehearing), which hold that a charging instrument is sufficient if, in addition to other elements of the offense, it merely alleges that appropriation was accomplished "without the owner"s effective consent." An absence of effective consent is necessary to render the appropriation unlawful. McClain v. State, 687 S.W.2d 350 (Tex. Crim. App. 1985).
        
        Here, however, the State chose to allege an absence of effective consent by charging that [Thomas] had no "assent in fact." This represents a more specific allegation of that which the State must prove than is required by the rules of pleading in criminal cases. See Thomas, supra. (Emphasis added.)
We conclude Grinstead was given adequate notice of the charges against her and was not deprived of her due process by law. Point of error one is overruled.
        Next, Grinstead argues that section 31.03 of the Texas Penal Code, as interpreted by the Texas Court of Criminal Appeals, is so inherently vague and ambiguous as to deprive her of her fourteenth amendment rights of due process of law as guaranteed by the United States Constitution. "The court of criminal appeals is the court of last resort in this State in criminal matters. This being so, no other court of this State has authority to overrule or circumvent its decisions or disobey its mandates." State ex. rel. v. Hatten, 508 S.W.2d 625, 628 (Tex. Crim. App. 1974); State ex. rel. Wilson v. Briggs, 351 S.W.2d 892, 894 (Tex. Crim. App. 1961). Grinstead is asking this Court to overrule the criminal court of appeals' interpretation of section 31.03 of the Texas Penal Code as discussed in Thomas v. State, 621, S.W.2d 148 (Tex. Crim. App. 1981). This we decline to do. Point of error two is overruled.
 
 
 
 
                                                          PAT McCLUNG
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
881316F.U05
 
 
File Date[12-11-89]
File Name[881316F]