                                   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]




State v. Nelson                                                Page 8
