State v. Denise Deane Nelson , 530 S.W.3d 186 ( 2016 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00120-CR
THE STATE OF TEXAS,
Appellant
v.
DENISE DEANE NELSON,
Appellee
From the County Court at Law No. 2
Brazos County, Texas
Trial Court No. 13-02784-CRM-CCL2
OPINION
In one issue, appellant, the State of Texas, complains that the trial court improperly
granted appellee Denise Deane Nelson’s motion to quash an information alleging two
counts of soliciting prostitution. Because we conclude that the State’s pleadings are
insufficient in light of the Court of Criminal Appeals’s decision in Kass v. State, 642 S.W.2d
463 (Tex. Crim. App. 1982) (op. on reh’g), we cannot say that the trial court erred in
granting Nelson’s motion to quash. Accordingly, we affirm.
I. STANDARD OF REVIEW
We conduct a de novo review of a trial court’s ruling on a motion to quash a
charging instrument. State v. Rosseau, 396 S.W.3d 550, 555 n.6 (Tex. Crim. App. 2013)
(citing Smith v. State, 309 S.W.3d 10, 13-14 (Tex. Crim. App. 2010)); State v. Moff, 154
S.W.3d 599, 601 (Tex. Crim. App. 2004). This is because the sufficiency of the charging
instrument is a question of law. Rosseau, 396 S.W.3d at 555 n.6 (citing Smith, 309 S.W.3d
at 13-14); Moff, 154 S.W.3d at 601. When the resolution of a question of law does not
depend on the credibility and demeanor of a witness, then the trial court is in no better
position than the appellate court to make the determination, and therefore, a de novo
review is the appropriate standard. Moff, 154 S.W.3d at 601. Here, the trial court’s
decision was based on the information, the motion to quash, and argument of counsel.
Thus, the trial court was in no better position than we are now with regard to determining
whether the information provided Nelson with sufficient notice. We must, therefore,
apply the de novo standard of review. See id.
The right of a defendant to notice of the State’s accusations is set forth in the federal
and state constitutions. See U.S. CONST. amend. V; TEX. CONST. art. I, § 10. “Thus the
charging instrument must be specific enough to inform the accused of the nature of the
accusation against [her] so that [she] may prepare a defense.” Moff, 154 S.W.3d at 601.
Article 21.11 of the Code of Criminal Procedure provides the following guidelines with
regard to the sufficiency of an information or indictment:
State v. Nelson Page 2
An indictment shall be deemed sufficient which charged the commission of
the 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 [she] is charged, and enable the court, on conviction, to
pronounce the proper judgment . . . .
TEX. CODE CRIM. PROC. ANN. art. 21.11 (West 2009); see id. art. 21.03 (West 2009)
(“Everything should be stated in an indictment which is necessary to be proved.”), 21.04
(West 2009) (“The certainty required in an indictment is such as will enable the accused
to plead the judgment that may be given upon it in bar of any prosecution for the same
offense.”).
II. ANALYSIS
Here, the amended, two-count information alleged that Nelson knowingly
solicited two members of the public who have “access to the world wide web, namely, a
free access internet forum, specifically, www.backpage.com, to engage in sexual conduct,
to wit: sexual contact; for hire . . . .” Relying on the Court of Criminal Appeals’s decision
in Kass, Nelson filed a motion to quash, arguing, among other things, that:
In particular, complaint is made of the use of the words “sexual contact.”
Sexual contact as defined by Sec. 43.01 Tex. Penal Code (3); “Sexual contact
means any touching of the anus, breast, or any part of the genitals of
another person with intent to arouse or gratify the sexual desire of any
person.
....
Absent the State being required to specify the “type of Sexual
conduct” the Defendant will have no notice of what she was alleged to have
offered, agreed to engaged in and solicited respectively; thus she was (not)
State v. Nelson Page 3
apprised of the illegal conduct for which she is to be prosecuted, and is
(thereby) deprived of facts necessary to prepare for her defenses.
In a letter ruling, the trial court discussed the applicability of Kass and ultimately granted
Nelson’s motion to quash. It is from this ruling that the State now appeals. See TEX. CODE
CRIM. PROC. ANN. art. 44.01(a)(1) (West Supp. 2015) (providing that the State may appeal
from the dismissal of “an indictment, information, or complaint or any portion of an
indictment, information, or complaint”).
As noted above, the trial court and the parties focused on the Kass opinion from
the Court of Criminal Appeals. In Kass, the defendant challenged her prostitution
conviction and made a substantially similar argument as in the instant case with regard
to the sufficiency of the information. See 642 S.W.2d at 469. Specifically, Kass contended
that the information was insufficient to give her notice of the offense with which she was
charged because there are numerous statutory definitions for the term “sexual conduct.”
Id. After analyzing prior case law, the Kass majority opinion stated:
The term “sexual conduct” is statutorily defined by Sec. 43.01(4), supra. The
definition provides three different methods of such conduct. One of those
methods, sexual contact, can in turn be committed in three different
manners. Likewise, deviate sexual intercourse, can be committed in two
different manners.
The type of “sexual conduct” the State sought to prove in the instant
case was critical to appellant’s ability to present a defense. The solicitation
to engage in some form of such “sexual conduct” was the essence of the
offense with which appellant was charged. The statutory definition of
“sexual conduct” provides a number of different manners by which
appellant could have committed the offense of prostitution. Appellant’s
motion to quash entitled her to the allegation of facts sufficient to bar a
State v. Nelson Page 4
subsequent prosecution for the same offense and sufficient to give her
precise notice of the offense with which she was charged. We conclude the
court erred in overruling appellant’s motion to quash. Under such
circumstances the information will be dismissed.
Id. at 469-70 (internal citations omitted).
At the time of the alleged offense, the operative criminal statute—section 43.02 of
the Penal Code—provided:
(a) A person commits an offense if he knowingly:
(1) offers to engage, agrees to engage, or engages in sexual conduct
for a fee; or
(2) solicits another in a public place to engage with him in sexual
conduct for hire.
(b) An offense is established under Subsection (a)(1) whether the actor is to
receive or pay a fee. An offense is established under Subsection (a)(2)
whether the actor solicits a person to hire him or offers to hire the person
solicited.
Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3681 (current
version at TEX. PENAL CODE ANN. § 43.02(a)(2), (b) (West Supp. 2015)). Former section
43.01 defined “[s]exual conduct” as “deviate sexual intercourse, sexual contact, and
sexual intercourse.” Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen.
Laws 3681 (current version at TEX. PENAL CODE ANN. § 43.01(4) (West 2011)).
Furthermore, former section 43.01 stated that “‘[s]exual contact’ means any touching of
the anus, breast, or any part of the genitals of another person with intent to arouse or
gratify the sexual desire of any person.” Act of May 29, 1993, 73rd Leg., R.S., ch. 900, §
State v. Nelson Page 5
1.01, 1993 Tex. Gen. Laws 3681 (current version at TEX. PENAL CODE ANN. § 43.01(3)). As
was the case in Kass, the operative criminal statutes provided three different methods for
engaging in sexual conduct. And one of those methods, sexual contact, could be
committed in three different manners.
Because Kass has not been explicitly overruled, and because we are bound to
follow the precedent of the Court of Criminal Appeals, we therefore conclude that the
information is insufficient to bar a subsequent prosecution for the same offense and did
not give Nelson precise notice of the offense with which she was charged. See 642 S.W.2d
at 469-70; see also Rosseau, 396 S.W.3d at 555 n.6; Smith, 309 S.W.3d at 13-14; Moff, 154
S.W.3d at 601; TEX. CONST. art. V, § 5(a) (stating that the Court of Criminal Appeals is the
final authority for criminal law in Texas); Purchase v. State, 84 S.W.3d 696, 701 (Tex.
App.—Houston [1st Dist.] 2002, pet. ref’d) (noting that an intermediate court of appeals
is bound to follow the precedent of the Court of Criminal Appeals). Nevertheless, we
recognize that the Kass opinion appears to be at odds with the more recent
pronouncement of the fair-notice requirements for charging instruments in Barbernell v.
State.1 See 257 S.W.3d 248, 251-52, 255 (Tex. Crim. App. 2008). But because we are bound
1 For example, in Barbernell, the Court of Criminal Appeals stated:
We have recognized that in most cases a charging instrument that tracks the statutory text
of an offense is sufficient to provide a defendant with adequate notice. When a statutory
term or element is defined by statute, the charging instrument does not need to allege the
definition of the term or element. Typically the definitions of terms and elements are
regarded as evidentiary matters. But in some cases, a charging instrument that tracks the
statutory language may be insufficient to provide a defendant with adequate notice. This
State v. Nelson Page 6
to follow the precedent of the Court of Criminal Appeals, we are not inclined to overrule
Kass. See Wiley v. State, 112 S.W.3d 173, 175 (Tex. Crim. App. 2003) (“But it is not within
the scope of the Court of Appeals’ powers to override a decision of the Court of Criminal
Appeals because it conflicts with other decisions of that Court. It is axiomatic that a Court
of Appeals has no power to ‘overrule or circumvent [the] decisions, or disobey [the]
mandates,’ of the Court of Criminal Appeals.” (quoting State ex rel. Vance v. Clawson, 465
S.W.2d 164, 168 (Tex. Crim. App. 1971), cert. denied, 404 U.S. 910, 92 S. Ct. 226, 30 L. Ed.
2d 182 (1971))). Based on the foregoing, we overrule the State’s sole issue on appeal.
is so when the statutory language fails to be completely descriptive. The statutory
language is not completely descriptive when the statutes define a term in such a way as to
create several means of committing an offense, and the definition specifically concerns an
act or omission on the part of the defendant. In such cases, more particularity is required
to provide notice. Thus, if the prohibited conduct is statutorily defined to include more
than one manner or means of commission, the State must, upon timely request, allege the
particular manner or means it seeks to establish.
....
In analyzing whether a charging instrument provides adequate notice, our notice
jurisprudence makes clear that courts must engage in a two-step analysis. First, a court
must identify the elements of an offense. As recognized in Gray, the elements, defined by
the Legislature, include: the forbidden conduct, the required culpability, if any, any
required result, and the negation of any exception to the offense. Next, as a second inquiry,
when the Legislature has defined an element of the offense that describes an act or
omission, a court must ask whether the definitions provide alternative manners or means
in which the act or omission can be committed. If this second inquiry is answered in the
alternative, a charging instrument will supply adequate notice only if, in addition to setting
out the elements of an offense, it also alleges the specific manner and means of commission
that the State intends to rely on at trial.
State v. Barbernell, 257 S.W.3d 248, 251 (Tex. Crim. App. 2008) (internal citations & quotations omitted).
State v. Nelson Page 7
III. CONCLUSION
We affirm the judgment of the trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Justice Davis dissenting)
Affirmed
Opinion delivered and filed April 21, 2016
Publish
[CR25]
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