State v. Denise Deane Nelson ( 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
DISSENTING OPINION
I respectfully dissent to the majority’s affirmance of the trial court’s grant of
Nelson’s motion to quash the amended information.
Each count in the amended information alleged that, on May 28, 2013, Nelson did
knowingly solicit … a member of the public who has 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.
The focus of Nelson’s motion to quash was the amended information’s use of the
words “sexual contact.” Nelson contended that, under Kass v. State, 642 S.W.2d 463 (Tex.
Crim. App. 1982) (op. on reh’g), the use of the words “sexual contact” did not give Nelson
notice of what “sexual contact” she was alleged to have solicited. See TEX. PENAL CODE
ANN. § 43.02(a)(2) (West 2015). And in its letter ruling that granted Nelson’s motion to
quash, the trial court discussed and relied on Kass.
In State v. Barbernell, the Court of Criminal Appeals detailed the fair-notice
requirements for charging instruments under Texas law:
The Texas and United States Constitutions grant a criminal defendant the
right to fair notice of the specific charged offense. “The charging instrument
must convey sufficient notice to allow the accused to prepare a defense.”
Toward that end, Chapter 21 of the Texas Code of Criminal Procedure
governs charging instruments and provides legislative guidance
concerning the requirements and adequacy of notice. With respect to
informations, Article 21.21 sets out what facts must be included in an
information and states, in part, “[t]hat the offense [must] be set forth in
plain and intelligible words[.]” Additionally, an information must include
everything that is necessary to be proved. An information is sufficient if it
charges 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 he is charged, and enable the court, on conviction, to
pronounce the proper judgment[.]
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 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
State v. Nelson Page 2
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.”
257 S.W.3d 248, 250-51 (Tex. Crim. App. 2008) (emphasis added) (citations in footnotes
omitted). The court then reiterated the applicable two-step analysis:
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. … [T]he
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 to the 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 affirmative, 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.
Id. at 255 (emphases added) (citation in footnote omitted).
Thomas v. State, 621 S.W.2d 158, 161, 164 (Tex. Crim. App. 1981) (op. on reh’g) holds
that terms that are specifically defined in a statute and that do not go to an act or omission
of the defendant need not be more specifically pled in a charging instrument. Under
Barbernell, the elements of the offense and any statutory definitions are the beginning
point. At the time of the alleged offense, subsections 43.02(a)(2) and 43.02(b) 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.
State v. Nelson Page 3
(b) … 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 (emphases
added) (current version at TEX. PENAL CODE ANN. § 43.02(a)(2), (b)(2) (West 2015)).
“Sexual conduct” includes “sexual contact,” which 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.” TEX. PENAL CODE ANN. § 43.01(a)(3, 4) (West 2015)
(emphases added).
On October 20, 1982, the Court of Criminal Appeals issued its opinion in Cardenas
v. State, 640 S.W.2d 291 (Tex. Crim. App. 1982) (en banc), an appeal from a prostitution
conviction. The issue was not notice, but whether the information was fundamentally
defective with respect to the defendant’s intent. Id. at 292. The information alleged that
the defendant did “knowingly offer and agree to engage in sexual conduct, namely,
sexual contact, with ….” Id. To resolve the issue, the court focused on the “conduct
element” in the case: “Here, the act alleged was not sexual contact, but rather it was the
offer or agreement to engage in such conduct.”). Id. at 293. Therefore, the court held that
the information was not fundamentally defective: ”The intent that must accompany
future sexual contact need not accompany the offer or agreement to engage in sexual
conduct. It therefore is not part of the conduct element in this case and need not be
alleged in the information.” Id. at 292. As discussed below, the focus in Cardenas on the
conduct element of a prostitution charge alleging “offer to engage” is key.
One week later, the court issued its opinion on rehearing in Kass, an appeal from
State v. Nelson Page 4
a conviction for solicitation of prostitution. The defendant had moved to quash the
information, which alleged that she had solicited a person to engage in “sexual conduct”
for hire. The motion to quash asserted that the information did not give sufficient notice
because of the numerous statutory meanings of the term “sexual conduct.” Kass, 642
S.W.2d at 469. Instead of focusing on the forbidden conduct—the solicitation—the
majority focused on “sexual conduct”:
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
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.
Id. at 469-70.
Judge McCormick began his dissent by noting that the majority was not following
the rule announced in Thomas:
The majority overlooks the fact that appellant was not charged with a
consummated act of prostitution. The act alleged here and which is the
gravamen of the offense is the solicitation. The term “solicit” was not
challenged by appellant in her motion to quash. Additionally, the
solicitation was to commit some act in the future. Since the sexual conduct
was allegedly to be performed in the future, it is not part of the conduct
element in this case and need not be further alleged. See and compare
Cardenas v. State, 640 S.W.2d 291 (1982). Our holding in Thomas dictates that
State v. Nelson Page 5
the State’s motion for rehearing be granted.
Id. at 470 (McCormick, J., dissenting).
After Kass, several cases have addressed complaints similar to that in Nelson’s
motion to quash. In Lozano, a case similar to Nelson’s, the appellant, who had been
convicted of prostitution by solicitation, had moved to quash the information, which had
alleged that appellant did “in a public place knowingly solicit R. Nieto to engage with
the Defendant in sexual conduct, namely sexual contact, for hire.” Lozano v. State, 650
S.W.2d 137, 138 (Tex. App.—Houston [14th Dist.] 1983, no pet.). On appeal she
complained about the trial court’s denial of her motion to quash, asserting that the
information was defective “because it fails to allege what type of sexual contact appellant
allegedly offered.” Id. After citing to the above rule in Thomas, the court held:
In the instant case, the information charges that appellant did “knowingly
solicit” to engage in sexual contact for hire. The act alleged in the
information was not sexual contact; rather, it was solicitation to engage in
such conduct. Thus, the term “sexual contact” does not go to an act or
omission of appellant, and is not subject to a motion to quash for failure to
specify which type of sexual contact appellant solicited.
Id.
Similarly, the appellant in Dismore complained on appeal that the information,
which alleged that he did “[K]nowingly and unlawfully OFFER TO ENGAGE …, in
sexual conduct, namely: DEVIATE SEXUAL INTERCOURSE in return for a fee,” did not
provide sufficient notice because it did not plead the specific act allegedly offered.
Dismore v. State, 658 S.W.2d 684, 684 (Tex. App.—El Paso 1983, no pet.). The court
responded: “The critical issue is whether the various physical acts which may be
State v. Nelson Page 6
characterized as deviate sexual intercourse under Section 43.01 are multiple statutory
definitions or variant evidentiary matters arising under a single statutory definition. We
conclude that the latter interpretation is correct.” Id. at 684-85.
But in Jackson, an appeal from an “offer to engage” prostitution conviction, the
Amarillo court relied on the Kass majority opinion in holding that the trial court erred in
denying the motion to quash the information.1 Jackson v. State, 743 S.W.2d 239, 240-41
(Tex. App.—Amarillo 1985, no pet.). As in Dismore, the information alleged that the
appellant “knowingly offered to engage in sexual conduct, to-wit: deviate sexual
intercourse, with …, for a fee.” Id. at 239. The appellant argued that the information did
“not give her fair notice because it does not allege the particular type of “deviate sexual
intercourse” she allegedly offered to engage in,” and the Amarillo court agreed that the
State failed “to allege the manner of deviate sexual intercourse it sought to establish.” Id.
at 240-41.
Laverne is another “offer to engage” prostitution case similar to Dismore and
Jackson; the information alleged that the defendant “offered ‘to engage … in sexual
conduct, namely: deviate sexual intercourse.’” Laverne v. State, 737 S.W.2d 379, 379 (Tex.
App.—San Antonio 1987) (per curiam), pet. granted per curiam, 753 S.W.2d 404 (Tex. Crim.
App. 1988) (remanding for harm analysis). Citing Kass and Jackson but acknowledging
Lozano as contrary authority, in a per curiam opinion the San Antonio court held:
Since an offer to engage in deviate sexual activity might include either oral
or anal contact with the genitals of another person, defendant was entitled
1
And like the Kass majority opinion, the Amarillo court did not apply the Thomas rule and identify the act
or omission of the defendant. See Jackson, 743 S.W.2d at 240-42.
State v. Nelson Page 7
to quash the information for failure to specifically state which type of
deviate sexual intercourse was offered. Kass v. State, 642 S.W.2d 463, 469-
70 (Tex. Crim. App. 1981); Jackson v. State, No. 07-83-0297-CR (Tex. App.—
Amarillo, January 10, 1985) pet. denied, (not yet published);2 Contra, Lozano
v. State, 650 S.W.2d 137, 138 (Tex. App.—Houston [14th Dist.] 1983, no pet.).
Laverne, 737 S.W.2d at 380. Justice Dial dissented as follows: “I dissent to the majority
opinion for the reasons stated in Lozano v. State, 650 S.W.2d 137, 138 (Tex. App.—Houston
[14th Dist.] 1983, no pet.) and Dismore v. State, 658 S.W.2d 684 (Tex. App.—El Paso 1983,
no pet.).” Laverne, 737 S.W.2d at 380 (Dial, J., dissenting); see also Plemons v. State, No. 01-
92-00095, 1993 WL 460118, at *2 (Tex. App.—Houston [1st Dist.] Nov. 10, 1993, pet. ref’d)
(not designated for publication) (“The courts of appeals are divided on whether a
charging instrument must state upon request the type of deviate sexual intercourse
involved.”) (citing Dismore and Jackson).
In Barbernell, a DWI case, the Court of Criminal Appeals addressed the trial court’s
quashing an information because the State failed to allege which definition of
“intoxicated” that it intended to prove at trial. Barbernell, 257 S.W.3d at 249. Relying on
State v. Carter, 810 S.W.2d 197 (Tex. Crim. App. 1991), which held that the State must
allege which definition of intoxicated—“loss of faculties” or “per se” intoxication (i.e.,
alcohol concentration)—that the State intends to prove at trial, the defendant asserted
that the information failed to give notice of the manner and means by which he
committed the DWI offense. Barbernell, 257 S.W.3d at 249.
The State asserted that a person’s state of intoxication is not an act or omission but
2
The Laverne court’s citation for Jackson’s subsequent history is incorrect; the Court of Criminal Appeals
did not rule on a petition for discretionary review in Jackson.
State v. Nelson Page 8
rather is the defendant’s condition and a circumstance that accompanies the defendant’s
act of operating a motor vehicle, while the defendant argued that the Carter decision was
sound and controlling precedent. Id. at 254-55. In a unanimous opinion, the Court of
Criminal Appeals set forth the notice law quoted above and then determined that its
analysis in Carter was incorrect:
The Court reached this conclusion based on its determination that the
definitions of “intoxicated” permit the offense of DWI to be proven in two
ways. Our reevaluation of this analysis exposes a serious defect in the
Court’s reasoning: After identifying the elements of DWI, the Court
neglected to ask whether the definitions of “intoxicated” concern an act or
omission so as to create more than one manner and means of committing
an offense. Instead, without explanation, the Court decided that the two
definitions of “intoxicated” each constitute separate acts or forbidden
conduct. In doing so, the Court failed to reconcile this conclusion with its
previous statement that the definitions of “intoxicated” involve only
matters of proof. Then, expanding on its faulty determination, the Carter
Court held that, because the two types of forbidden conduct involve
“fundamentally different natures” and “different behaviors,” a charging
instrument must allege the definition of “intoxicated” that the State will
seek to prove at trial.
Id. at 255-56.
The court then conducted an analysis under its precedent:
With the understanding that “intoxicated” is an element of DWI and that
Section 49.01(2) sets out two definitions for “intoxicated,” we ask whether
the definitions of “intoxicated” concern an act or omission and create two
different manners and means of committing DWI. Our recent examination
of the definitions of “intoxicated” in Bagheri v. State leads us to conclude
that the answer to this question is “no.” Echoing the sentiments of
Professors Dix and Dawson, in Bagheri, we held that the definitions “set
forth alternative means by which the State may prove intoxication, rather
than alternate means of committing the offense.” We then explained, “The
conduct proscribed by the Penal Code is the act of driving while in a state
of intoxication. That does not change whether the State uses the per se
definition or the impairment definition to prove the offense.” These
statements make clear that the definitions of “intoxicated” are purely
State v. Nelson Page 9
evidentiary matters; therefore, they do not need to be alleged in a charging
instrument to provide a defendant with sufficient notice. As a result, we
overrule Carter’s holding that the State must allege the definition of
“intoxicated” that it intends to rely on at trial in the charging instrument to
provide adequate notice.
Id. at 256 (emphasis added) (citations in footnotes omitted).
Kass causes a dilemma: We have to either follow the result in Kass or apply the
correct and current analysis set out in Barbernell. We cannot do both. I believe that the
majority errs in choosing to follow Kass and in not applying Barbernell’s analysis.
We should be applying the correct analysis in the much more recent and
unanimous Barbernell decision, rather than follow Kass, which was a split decision that,
like Carter (which Barbernell overruled), contains a flawed analysis as described in Judge
McCormick’s dissent. See Kass, 642 S.W.2d at 470 (McCormick, J., dissenting). Following
Kass also requires the majority to ignore Cardenas.
Under the Barbernell analysis, I note that the legislature did not define the act of
soliciting; it did define “sexual contact.” Terms that are defined but do not identify the
act or omission need not be charged with greater specificity; they are evidentiary matters.
See Barbernell, 257 S.W.3d at 255-56. The gravamen of the charged offense—the act
alleged—is soliciting, not the specific type of sexual contact being solicited. Lozano, 650
S.W.2d at 138; see Cardenas, 640 S.W.2d at 292-93 (“the act alleged was not sexual contact,
but rather it was the offer or agreement to engage in such conduct”). “[T]he term “sexual
contact” does not go to an act or omission of appellant, and is not subject to a motion to
quash for failure to specify which type of sexual contact appellant solicited.” Lozano, 650
S.W.2d at 138 (emphasis added); see Dismore, 658 S.W.2d at 684-85. The type of “sexual
State v. Nelson Page 10
contact” that was allegedly solicited is an evidentiary matter—alternative means by
which the State may prove soliciting to engage in sexual contact for hire. See Barbernell,
257 S.W.3d at 256.3
I would therefore conclude that the trial court erred in granting Nelson’s motion
to quash the amended information and would sustain the State’s issue, reverse the trial
court’s order granting the motion to quash, and remand this case.
REX D. DAVIS
Justice
Opinion delivered and filed April 21, 2016
Publish
3
Also, the amended information does not present a double-jeopardy problem; each count alleges one
offense of soliciting for the respective “customer;” a separate offense does not exist for each of the
definitions of sexual contact. See Huffman v. State, 267 S.W.3d 902, 905-09 (Tex. Crim. App. 2008); Dismore,
658 S.W.2d at 685.
State v. Nelson Page 11