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In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-12-00456-CR

____________________

THE STATE OF TEXAS, Appellant

V.

MARTIN JOSEPH LEVERETT, Appellee

_______________________________________________________ _____________ _

On Appeal 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 quashing 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, the indictment the 

trial court quashed alleges:
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[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 indictment. In his motion, Leverett complained the indictment 

needed to more specifically describe 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 describing personal property in an indictment).

Subsequently, the trial court conducted a hearing on Leverett’s motion.

During the hearing, the 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, 314 (Tex. 

Crim. App. 2003) (holding that the State’s itemized list containing dates, check 

numbers, and amounts of multiple transactions provided defendant with sufficient 

notice to prepare a defense). 

During the hearing, the trial court determined that the indictment did not 

provide the description required by article 21.09. The trial court set a second 
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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, the 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. Additionally, the 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 means. At the subsequent hearing, the State informed the trial court 

that it had not provided 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 indictment 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 contains receipts from two pawn shops describing 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.
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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). Article 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 known, 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 

suffice. 

Id.

Leverett’s indictment neither alleges that the information regarding the 

property at issue was unknown, nor describes 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, that 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 were stolen; instead, the State argued that “[i]t’s our position that 
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the specific pieces of [gold and] jewelry would be factual in nature, and would be 

specific factual allegations, 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 indictments

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. 1976). In State v. Czaplinski, an information alleging the defendant had 

stolen two pairs 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 regarding 

the number of articles of gold and the number of articles of jewelry that he is

alleged to have stolen.
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On appeal, the State argues that its open file policy allowed Leverett to 

obtain more detail regarding the property that it intended to prove he had stolen. 

The State also contends that Leverett’s attorney reviewed the file. However, the 

transcript from the second motion to quash hearing reflects 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 

requires. 

Generally, to present a complaint on appeal, a party is required 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 provided 

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 comply 
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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.