## Facts

- Jimmy Bartee killed a white-tailed deer during closed season.
- The incident occurred on privately controlled land leased for hunting.
- The State indicted Bartee for theft and criminal mischief, alleging the State of Texas as the owner of the deer.
- Bartee moved to set aside the indictment, arguing a wild deer is not “property” subject to theft or criminal mischief and that the State cannot be the “owner” for Penal Code purposes.
- The trial court granted the motion and dismissed the indictment.

## Issues

1. Whether a wild deer may constitute “property” for purposes of Texas theft and criminal mischief statutes.
2. Whether the State of Texas may be alleged as the “owner” of a wild deer in an indictment for theft and criminal mischief.

## Decision

- The court of appeals reversed the order setting aside the indictment and remanded for further proceedings.
- The court held that a wild deer may be treated as “property” within the theft and criminal mischief statutes when unlawfully taken or destroyed.
- The court held that alleging ownership in the State of Texas was permissible for these offenses.

## Legal Principles

- Wild game animals may be treated as “property” for theft and criminal mischief when statutory game restrictions create a legally protected interest against unlawful taking or destruction.
- The State has a sovereign or trustee interest in wildlife for the benefit of the public, supporting criminal enforcement when wildlife is unlawfully taken.
- Under the Penal Code definition of “owner” (including one with a greater right to possession than the actor), the State’s statutory control over wildlife can satisfy ownership allegations against an unauthorized taker.
- Although it may be preferable to plead “special ownership” in a natural person acting for a governmental entity, failure to do so is not necessarily a fatal pleading defect.

## Conclusion

The court reinstated the prosecution by ruling that free-ranging deer may qualify as “property” for theft and criminal mischief and that the State may be named as the “owner” in the indictment based on its statutory and sovereign authority over wildlife.


State v. Bartee, 894 S.W.2d 34 (Tex. App.—San Antonio 1994)