1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________ NO . 09
- 1 2
- 00 456
- C R



### ____________________ T HE STATE OF TEXAS , Appellant
V.
M ARTIN JOSEPH LEVERETT , Appellee

_______________________________________________________ _____________ _ On A ppeal from the 163rd District Court Orange County, Texas Trial Cause No . B
- 120,121
- R

________________________________________________________ ____________ _ OPINION In this appeal, the State argues the trial court erred by quash ing Martin Joseph Leverett’s indictment

. We hold the trial court properly quashed the indictment

. We affirm the trial court’s order. Background The State indicted Leverett for felony theft. Specifically, t he indictment the trial court quashed allege s :2 [Leverett] . . . did then and there unlawfully appropriate by acquiring and otherwise exercising control over property other than real property, to wit : gold and jewelry, of the value of at least $1,500 .00 but less than $20,000 .00 from the owner, [M.M

. ] , without the effective consent of said owner and with intent to deprive said owner of said property [.] Several months after he was indicted, Leverett filed a motion asking the trial

court to quash his indic tment . In his motion , Leverett complain ed the indictment
needed to more specific ally descri be the gold and jewelry that he had allegedly stolen. See Tex. Code Crim. Proc. Ann. art. 21.09 (West 2009) ( explaining the amount of detail required in descri bing personal property in an indictment). Subsequently, t he trial court conducted a hearing on Leverett’s motion

. During the hearing, t he State argued that the indictment was not deficient , but also argued that if it was, the State should be given additional time to satisfy any due process requirements by providing Leverett notice by means other than the language in the indictment , allowing the State to provide Leverett with more detail regarding the property at issue

. See Kellar v. State , 108 S.W.3d 311, 31 4 (Tex. Crim. App. 2003) (holding that the State’s itemize d list containing dates, check numbers, and amounts of multiple transactions provided defendant with sufficient notice to prepare a defense). During the hearing, t he trial court determined that the indictment did not provide the description required by article 21.09

. T he trial court set a second3 hearing , to occur four weeks later , to give the State an opportunity to provide a property description by other means

. At the conclusion of the first hearing, t he trial court advised the prosecutor that at the next hearing , the court expected the State to explain how it provided Leverett with a sufficient description of the property it alleged he had stolen . Additio n ally, t he trial court warned the State that it would quash the indictment if it determined the State had failed to provide Leverett with notice by other mean s . At the subsequent hearing , the State informed the trial court that it had not provide d Leverett with any more information about the property at issue

. At that point , the trial court granted Leverett’s motion to quash

. On appeal, the State contends that the exact number of pieces of gold and jewelry that Leverett took are unknown to it , argues that the in dictment sufficiently alleges an offense involving the theft of gold and jewelry, and suggests that at some point , Leverett ’s attorney inspected the State’s file , allowing his attorney to have access to additional information about the items at issue

. According to the State, the State ’s file contain s receipts from two pawn shops d escrib ing specific pieces of gold and jewelry that were sold by Leverett

. But, the State never provided the receipts to the trial court , and they are not in the record before us on appeal.4 Standard of Review The sufficiency of an indictment presents a question of law ; therefore, a trial court’s ruling on a motion to quash is reviewed using a de novo standard

. Smith v. State, 309 S.W. 3d 10, 13

- 14 (Tex. Crim. App. 2010)

. A rticle 21.09 of the Code of Criminal Procedure describes the degree of detail to which an indictment is required to describe property that is alleged by the State to have been stolen

. See Tex. Code Crim. Proc. Ann. art. 21.09

. Article 21.09 provides:
If k nown, personal property alleged in an indictment shall be identified by name, kind, number, and ownership. When such is unknown, that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffi ce. Id. Leverett’s indictment neither allege s that the information regarding the property at issue was unknown , n or describe s the number of pieces of gold and jewelry that were allegedly stolen ; but , the indictment does describe the kind of property at issue by using a general classification

. See id. (“When such is unknown, th at fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice.”)

. During the hearing, the State did not argue that it did not know what specific pieces of gold and jewelry it intended to prove w ere stolen; instead, the State argued that “[i]t’s our position that5 the specific pieces of [ gold and] jewelry would be factual in nature, and would be specific factual allegati ons, and that is not something that the State is required to allege in the indictment.” All of the cases on which the State relies in its brief involved indictment s that had more specific property descriptions than the property description provided by the indictment at issue

. In Welch v. State , the Court of Criminal Appeals held that an indictment alleging that seven rifles were stolen was a sufficient description of the property that the defendant had stolen. 543 S.W.2d 378, 379

- 80 (Tex. Crim. App. 197 6). In State v. Czaplinski , an information alleging the defendant had stolen two pair s of shorts, one shirt , and one dress, complied with the requirements of article 21.09. 956 S.W.2d 839, 840, 842 (Tex. App.

— Austin 1997, no pet.). Thus, in the cases on which the State relies , the charging instrument identified the
stolen property by kind and by number. See Welch , 543 S.W.2d at 379; Czaplinski , 956 S.W.2d at 840; see also Tex. Code. Crim. Proc. Ann. art. 21.09. Even if we were to accept the State’s argument that the indictment provides Leverett sufficient
notice with respect to the kind of property stolen in cases in which it has not alleged that such information is unknown , Leverett’s indictment is silent regard ing the number of articles of gold and the number of articles of jewelry that he is allege d to have stolen

.6 On appeal, t he State argues that its open file policy allowed Leverett to obtain more detail regarding the property that it intended to prove he had stolen

. T he State also contends that Leverett’s attorney reviewed the file . However, the transcript from the second motion to quash hearing reflect s that the State never advised the trial court that it had pawn shop receipts in its file or that Leverett’s attorney had seen them, nor did the State provide the trial court with the receipts

. Thus, the trial court was never asked to determine whether the information in the receipts could serve as a sufficient substitute for the information that article 21.09

r equires

. Generally, to present a complaint on appeal, a party is require d to obtain a ruling from the trial court on its request. Tex. R. App. P. 33. 1 (a)

. Here, the trial

court was never asked to rule on whether the information in its file could substitute for the information required by article 21.09 of the Code of Criminal Procedure. We hold that by failing to present the documents that it claims provide substitute notice and obtaining a ruling on its claim that the documents in the file provide d
sufficient notice , the State has failed to preserve its substitute notice argument for our review on appeal. See Tex. R. App. P. 33.1. As Leverett’s indictment does not state that the property he is alleged to have stolen is unknown, we conclude that Leverett’s indictment does not comply7 with the requirements of article 21.09 of the Code of Criminal Procedure. We overrule the State’s sole issue, and affirm the trial court’s order.
AFFIRMED.

_____________________________ HOLLIS HORTON Justice Submitted on May 1 , 2013 Opinion Delivered May 8, 2013 Publish
Before McKeithen, C.J., Kreger and Horton, JJ.