Motion to Quash Information
Josh Zientek
CAUSE No. _______________
STATE OF TEXAS	§	IN THE COUNTY COURT AT LAW
	§	
v.	§
	§	
___________________________	§	_______________ COUNTY, TEXAS

TO THE HONORABLE JUDGE OF SAID COURT:
	Now comes __________________, Accused in the above-entitled and numbered cause and files this Motion to Quash Information and in support thereof shows:
	1. 
Accused was charged by information on January 1, 2013, apparently with the offense of Theft 
$50 < $500.
	2. 
The offense, which is alleged to have been committed on or about December 24, 2012, in ______ County, Texas, is a Class B Misdemeanor.
	3. 
This exception is brought pursuant to the grounds specified in Article 27.09 of the Texas Code of Criminal Procedure and to the grounds specified in Article 27.08 of the Texas Code of Criminal Procedure, as well as Article I Sections 10 and 19 of the Texas Constitution and the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.
	4. 
The information by which the accused is charged, states:
		
COMES NOW the Assistant Criminal District Attorney of __________ County, Texas, in behalf of the State of Texas, and presents in and to the County Court at Law of Montgomery County, Texas, that heretofore on or about the 24th Day of December, 2012, in the County of __________ and State of Texas, John Doe hereinafter styled Defendant, Did then and there unlawfully, intentionally and knowingly appropriate by acquiring and exercising control over property, to-wit: MISCELLANEOUS ITEMS of the value of fifty dollars ($50.00) or more but less than five hundred dollars ($500.00) without the effective consent of the owner WAL MART and with intent to deprive the owner of said property.

	5. 
Accused alleges that the Information does not comply with the requirements of Article 21.02 & 21.04 of the Texas Code of Criminal Procedure in that the information does not set forth the offense in plain or intelligible language and does not plead with the certainty required in an information as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.
	6. 
The charging instrument in this case is insufficient because it does not provide an adequate description of the property allegedly stolen. An inadequate description of the property renders the pleading defective and constitutes reversible error if challenged by a motion to quash. Rhodes v. State, 560 S.W.2d 665 (Tex.Crim.App. 1978). In Willis v. State, 544 S.W.2d 150, 151 (Tex. Crim. App. 1976) the court of Criminal Appeals held, in a theft case in which the indictment only alleged that “merchandise” was taken, that the indictment was insufficient. “It must be remembered that it is the intent of Article I, Sec. 10 of the Texas Constitution that an accused in a particular case must be furnished information upon which he may prepare his defense, and this information must come from the face of the indictment.” Voelkel v. State, 501 S.W.2d 313 (Tex.Crim.App.1973). “It is, of course, not sufficient to say that the accused knew with what offense he was charged, but the inquiry must be whether the charge in writing furnished that information in plain and intelligible language.” Wilson v. State, 520 S.W.2d 377, 379 (Tex.Crim.App.1975). “Further, the rule is that an offense should be charged in plain and intelligible words with such certainty as to enable the accused to know what he will be called upon to defend against and to enable him to plead the judgment that may be given on it in bar of any further prosecution for the same offense.” Gaines v. State, 501 S.W.2d 315 (Tex.Crim.App.1973). Further, a conviction may be based only on the property specifically listed in the charging instrument. See Sanchez v. State, 645 S.W.2d 491, 493 (Tex.App.—Corpus Christi 1982, no pet.).
	7. 
Further, the complaint upon which the information is based is invalid in that it does not contain a sufficiently specific description of the property allegedly taken. The constituent elements of the offense must appear in the complaint. Toliver v. State, 158 Crim. R. 224, 254 S.W.2d 388, 389 (1953). Further, an Accused’s rights under the Fifth, Sixth, and Fourteenth Amendments to be fairly informed of the charge against which he was required to defend are denied by the failure of the information to allege, specifically, the property that was allegedly stolen. 
	WHEREFORE, PREMISES CONSIDERED, the Accused prays that the Court quash the information due to the defects of form outlined above, and discharge the Accused pursuant to Texas Code of Criminal Procedure Art. 28.04.

Respectfully submitted,
The Law Office of L. Clay-Jackson, PLLC

_____________________________
JOSHUA ZIENTEK
504 W. Lewis St.
Conroe, Texas 77301
936-760-2880 / (Fax) 936-760-2892
TBN: 24063781
Attorney for the Accused

CERTIFICATE OF SERVICE
	This is to certify that on the _______________, a true and correct copy of the above and foregoing document was served on the District Attorney’s Office by hand delivery.

_____________________________
JOSHUA ZIENTEK

CAUSE No. _______________
STATE OF TEXAS	§	IN THE COUNTY COURT AT LAW
	§	
v.	§
	§	
___________________________	§	_______________ COUNTY, TEXAS

ORDER
	On the ___ day of ____________, 20___ , came on to be considered Accused ’s Motion to Quash Information, and said motion is hereby

	(Granted) (Denied)

 JUDGE PRESIDING