State v. Dai'Vonte E'Shaun Titus Ross , 531 S.W.3d 878 ( 2017 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-16-00821-CR
The STATE of Texas,
Appellant
v.
Dai’Vonte E’Shaun Titus ROSS,
Appellee
From the County Court at Law No. 15, Bexar County, Texas
Trial Court No. 519657
The Honorable Robert Behrens, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Irene Rios, Justice
Delivered and Filed: August 2, 2017
AFFIRMED
Dai’Vonte E’Shaun Titus Ross was charged with disorderly conduct for displaying a
firearm in a public place in a manner calculated to alarm. The State of Texas appeals the trial
court’s order granting Ross’s motion to quash. The State contends the trial court erred in granting
the motion because the information provided sufficient notice by tracking the language of the
statute. We affirm the trial court’s order.
04-16-00821-CR
BACKGROUND
The information charging Ross with disorderly conduct stated:
on or about the 8th Day of June, 2016, DAI’VONTE E’SHAUN TITUS
ROSS did intentionally and knowingly IN A MANNER CALCULATED TO
ALARM, DISPLAY A FIREARM IN A PUBLIC PLACE, to wit: the 300 block of
Ferris Avenue
Ross filed a motion to quash the information asserting his constitutional right to be fairly informed
of the charge was denied “by the failure of the Information to allege an essential element of the
offense, namely the manner and means by which the offense was allegedly committed.”
At the hearing on the motion, Ross’s attorney argued tracking the language of the statute
is only sufficient when the statute is completely descriptive of the offense and asserted tracking
the language of the statute was not sufficient in this case because Texas is an open-carry state. The
State responded that Ross was requesting the State to plead facts that are evidentiary in nature.
Ross’s attorney replied, “In an open-carry state at what point is it now in a manner calculated to
alarm?” At the conclusion of the hearing, the trial court announced it would give the State an
opportunity to amend, but if the State chose not to amend, the motion would be granted. The trial
court explained, “it seems to me, by specifying a manner calculated to cause alarm, that a person
should at least have some basis to determine their defense and, you know, what it is that I’m
particularly having to defend against, what was that manner.” After the State chose not to amend
the information, the trial court signed an order granting the motion, and the State appeals.
SUFFICIENT NOTICE AND STANDARD OF REVIEW
“The Texas and United States Constitutions grant a criminal defendant the right to fair
notice of the specific charged offense.” State v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim.
App. 2008); see also State v. Castorena, 486 S.W.3d 630, 632 (Tex. App.—San Antonio 2016, no
pet.). To provide fair notice, “‘[t]he charging instrument must convey sufficient notice to allow
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the accused to prepare a defense.’” Barbernell, 257 S.W.3d at 250 (quoting Curry v. State, 30
S.W.3d 394, 398 (Tex. Crim. App. 2000)); see also Castorena, 486 S.W.3d at 632. An information
is deemed to provide sufficient notice if it “charges the commission of an offense in ordinary and
concise language in such a manner as to enable a person of common understanding to know what
is meant, and with that degree of certainty that will give the defendant notice of the particular
offense with which he is charged.” TEX. CODE CRIM. PROC. ANN. art. 21.11 (West 2009); see id.
at art. 21.23 (providing that rules regarding allegations in an indictment and the certainty required
also apply to an information).
In most cases, an information that tracks the statutory text of an offense provides sufficient
notice. Barbernell, 257 S.W.3d at 251; Curry, 30 S.W.3d at 398. Tracking the statutory language
will be insufficient, however, if the statute defines the manner or means of commission in several
alternative ways. Curry, 30 S.W.3d at 398. In such a case, the information must identify which
of the alternative statutory manner or means is charged. Curry, 30 S.W.3d at 398; State v. Mays,
967 S.W.2d 404, 407 (Tex. Crim. App. 1998). Similarly, “[a] statute which uses an undefined
term of indeterminate or variable meaning requires more specific pleading in order to notify the
defendant of the nature of the charges against him.” Mays, 967 S.W.2d at 407. Stated differently,
more specificity is necessary when a term “is so vague or indefinite as to deny the defendant
effective notice of the acts he allegedly committed.” Daniels v. State, 754 S.W.2d 214, 220 (Tex.
Crim. App. 1988); Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim. App. [Panel Op.] 1980).
Otherwise, definitions of terms are generally regarded as evidentiary matters, and the State is not
required to allege facts in an information that are merely evidentiary in nature. Smith v. State, 309
S.W.3d 10, 14 (Tex. Crim. App. 2010); Barbernell, 257 S.W.3d at 251; Curry, 30 S.W.3d at 398.
Whether an information provides sufficient notice is a question of law. Smith, 309 at 13;
Barbernell, 257 S.W.3d at 251; Castorena, 486 S.W.3d at 632. Therefore, we review a trial court’s
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decision to quash an information for failure to provide sufficient notice de novo. Smith, 309
S.W.3d at 13-14; Barbernell, 257 S.W.3d at 251-52; Castorena, 486 S.W.3d at 632.
DISCUSSION
Section 42.01(a)(8) of the Texas Penal Code provides that a person commits the offense of
disorderly conduct “if he intentionally or knowingly displays a firearm or other deadly weapon in
a public place in a manner calculated to alarm.” TEX. PENAL CODE ANN. § 42.01(a)(8) (West
2016). The information in this case tracked the statutory language by providing:
on or about the 8th Day of June, 2016, DAI’VONTE E’SHAUN TITUS
ROSS did intentionally and knowingly IN A MANNER CALCULATED TO
ALARM, DISPLAY A FIREARM IN A PUBLIC PLACE, to wit: the 300 block of
Ferris Avenue
As clarified at the hearing on Ross’s motion to quash, Ross asserted the information did not provide
sufficient notice because the term “alarm” is vague or indeterminate; therefore, the information
needed to contain more specificity to provide Ross with notice of how the manner in which he
displayed the firearm was “calculated to alarm.”
The State contends the trial court erred in granting the motion to quash because the
information tracked the language of the statute. In addition, the State contends the term “alarm”
did not require further specificity based on the holdings of our sister courts in Roberts v. State, No.
01-16-00059-CR, 2016 WL 6962308 (Tex. App.—Houston [1st Dist.] Nov. 29, 2016, pet. ref’d)
(not designated for publication), and Ex parte Poe, 491 S.W.3d 348 (Tex. App.—Beaumont 2016,
pet. ref’d). Ross cites May v. State, 765 S.W.2d 438 (Tex. Crim. App. 1989), as support for the
trial court’s determination that the term “alarm” was vague, thereby requiring greater specificity
in the information.
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A. May v. State
In May v. State, the Texas Court of Criminal Appeals addressed whether the provision of
the Texas Penal Code defining the offense of harassment was unconstitutionally vague. 765
S.W.2d at 439. The offense was defined to include telephone communications which
“intentionally, knowingly, or recklessly annoy[] or alarm[] the recipient.” Id. The court held the
statute was inherently vague “in attempting to define what annoys and alarms people” and by
failing “to specify whose sensitivities are relevant.” Id. at 440. As support for its holding, the
court cited the Fifth Circuit’s decision in Kramer v. Price, 712 F.2d 174 (5th Cir. 1983).
In Kramer, the Fifth Circuit addressed whether Texas’s harassment statute was
unconstitutionally vague because of its use of the terms “annoy” and “alarm.” 712 F.2d at 176.
The court noted a statute is unconstitutionally vague “if it fails to draw reasonably clear lines
between lawful conduct and unlawful conduct” and fails “to provide citizens with fair notice or
warning of statutory prohibitions so that they may act in a lawful manner.” Id. The court then
noted the United States Supreme Court struck down a statute using the word “annoy” in Coates v.
City of Cincinnati, 402 U.S. 611 (1971). Id. at 177. In Coates, the ordinance at issue “made it a
criminal offense for three or more individuals to assemble on public sidewalks and conduct
themselves in a manner that might annoy passersby.” Kramer, 712 F.2d at 177. In holding the
ordinance to be unconstitutionally vague, the United States Supreme Court first recognized the
term “annoy” was vague because “[c]onduct that annoys some people does not annoy others.” Id.
(quoting Coates, 402 U.S. at 614). In addition, the Court held the ordinance failed to specify
whose sensitivities were relevant, i.e., “‘the sensitivity of the judge or jury, the sensitivity of the
arresting officer, or the sensitivity of a hypothetical reasonable man.’” Id. at 177-78. The Fifth
Circuit then concluded Texas’s harassment statute “suffer[ed] from the same infirmities as the
ordinance in Coates,” reasoning:
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The Texas courts have made no attempt to construe the terms “annoy” and “alarm”
in a manner which lessens their inherent vagueness. Of greater importance, the
Texas courts have refused to construe the statute to indicate whose sensibilities
must be offended. Coates recognized that a statute is unconstitutionally vague
when the standard of conduct it specifies is dependent on each complainant’s
sensitivity. Whereas Coates specified that a passerby’s sensitivity must be
offended, the statute in this case makes no attempt at all to specify whose sensitivity
must be offended. In the absence of judicial clarification, enforcement officials, as
well as the citizens of Texas, are unable to determine what conduct is prohibited by
the statute.
Id. at 178 (internal citations omitted).
B. Roberts v. State
In Roberts v. State, Walter Lee Roberts was charged by information with disorderly
conduct, “[s]pecifically, the information alleged ‘that in Harris County, Texas, Walter Lee Roberts,
hereafter styled the Defendant, heretofore on or about March 5, 2015, did then and there unlawfully
intentionally and knowingly display a deadly weapon, namely, a firearm, in a public place and in
a manner calculated to alarm.’” 2016 WL 6962308, at *1. Similar to the argument made in Ross’s
motion to quash, Roberts argued the information was void because it failed to allege the manner
and means of the offense. Id. at *4. Specifically, Roberts argued the information should have
alleged he “displayed a deadly weapon in a manner calculated to alarm, ‘namely by pointing a
shotgun at Etoinne Ternoir.’” Id.
The Houston court first noted section 42.01(a)(8) does not require that the offense be
committed against a specific person; therefore, the information did not have to identify the
complainant. Id. at *5. Furthermore, the court held “specifically alleging that Appellant pointed
a shotgun at the complainant is evidentiary in nature” and was not required to be included in the
information. Id. We read this holding to mean how the deadly weapon was displayed such that
its manner was “calculated to alarm” is evidentiary in nature and not required to be included in an
information.
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C. Ex parte Poe
In Ex parte Poe, Derek Ty Poe was charged by information with disorderly conduct by
intentionally and knowingly displaying a deadly weapon, namely a firearm, in a public place and
in a manner calculated to alarm. 491 S.W.3d at 350-51. Poe filed an application for pretrial writ
of habeas corpus asserting section 42.01(a)(8) is unconstitutionally vague, arguing, among other
issues, that the terms “displaying,” “manner,” “calculated,” and “alarm” are undefined. Id. at 351.
Specifically, Poe argued, “the statute ‘provides no guidance or explanation as to what facts or
circumstance[s] must exist in order to determine if a defendant’s conduct was done with the
specific intent showing that he calculated his display of a firearm to be alarming.’” Id. Poe further
argued “the word ‘alarm’ is ‘inherently subjective[.]’ and … ‘there is a great degree of variance of
human perception of which conduct is alarming[.]’” Id.. at 354.
The Beaumont court rejected Poe’s argument, noting the term “alarm” has a commonly
known and accepted usage and meaning as ‘fear or terror resulting from a sudden sense of
danger.’” Id. (quoting Webster’s Third New Int’l Dictionary 48 (2002)). Therefore, the court held
Poe had not met his burden to prove the statute is unconstitutionally vague. Id. at 355.
D. Analysis
To the extent our sister courts’ opinions in Roberts and Poe are read to hold the term
“alarm” as used in section 42.01(a)(8) is not an undefined term of indeterminate or variable
meaning, we disagree. In Coates, the United States Supreme Court held the term “annoy” was
vague because “[c]onduct that annoys some people does not annoy others.” Coates, 402 U.S. at
614. Similarly, the term “alarm” is vague because “[c]onduct that [alarms] some people does not
[alarm] others.” Id.
In May, the Texas Court of Criminal Appeals recognized the term “alarm” is inherently
vague. 765 S.W.2d at 440 (quoting Kramer, 712 F.2d at 178). Absent further guidance from the
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Texas Court of Criminal Appeals, we hold tracking the language of section 42.01(a)(8) in an
information is not sufficient notice because the statute “uses an undefined term of indeterminate
or variable meaning,” thereby requiring “more specific pleading in order to notify the defendant
of the nature of the charges against him.” Mays, 967 S.W.2d at 407. Stated differently, more
specificity is necessary because the term “alarm” “is so vague or indefinite as to deny the defendant
effective notice of the acts he allegedly committed.” Daniels, 754 S.W.2d at 220; Thomas, 621
S.W.3d at 163. Because Texas is an open-carry state, an individual is entitled to openly display a
firearm in public. Therefore, when a defendant is charged with disorderly conduct under section
42.01(a)(8), he is entitled to notice of how the manner in which he displayed a firearm was
calculated to “alarm” because absent such notice the defendant would be unable to prepare a
defense. See Barbernell, 257 S.W.3d at 250 (noting “charging instrument must convey sufficient
notice to allow the accused to prepare a defense”); cf. Lovett v. State, Nos. 02-16-00094-CR & 02-
16-00095-CR, 2017 WL 2590221, at *4 (Tex. App.—Fort Worth June 15, 2017, pet. filed) (noting
“the mere presence of a firearm or deadly weapon in public cannot possibly supply the requisite
mens rea for a disorderly-conduct conviction, or else anyone participating in Texas’s embrace of
lawful open carry would be guilty the moment he stepped outside his home visibly armed”).
CONCLUSION
The trial court’s order granting Ross’s motion to quash is affirmed.
Irene Rios, Justice
PUBLISH
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