                                       NO. 07-09-0377-CR

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                              PANEL E

                                        AUGUST 5, 2010


                             THE STATE OF TEXAS, APPELLANT

                                                  v.

                              TY KELLY GARDNER, APPELLEE


           FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;

              NO. 124935; HONORABLE PAMELA COOK SIRMON, JUDGE


Before QUINN, C.J., CAMPBELL, J., AND BOYD, S.J. 1


                                   MEMORANDUM OPINION


       In this appeal, the State of Texas presents three issues which, it contends,

demonstrate that the trial court reversibly erred in quashing the information. In the first

count of the two-count indictment, Ty Kelly Gardner (herein Gardner) was charged with

intentionally, knowingly, or recklessly causing bodily injury to Charity Cravy (Cravy), at

the time a member of Gardner’s household, by striking her with his hand or with a

vehicle door. In the second count, he was charged in identical language except for the
       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov=t
Code Ann. '75.002(a)(1) (Vernon 2009).
allegation that Cravy was a member of his household.               The information was

subsequently amended to change the date of the alleged offense but was without any

other change. For reasons we later state, we reverse the order of the trial court and

remand the cause for further proceedings.


       In pursuing its appeal, the State presents three issues for our decision: 1) what

is the proper standard of review of a trial court order quashing an information, 2) was

the information with which this appeal is concerned specific enough to inform the

defendant of the accusation against him, and 3) are the two acts alleged in the

information separate offenses? Because its decision is determinative of this appeal, we

will proceed directly to consider the third issue.

       Initially, because it is a question of law, we review the sufficiency of a charging

instrument de novo. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). In

doing so, we must first determine if the information here in question gave adequate

notice of the alleged criminal conduct. If we find that notice sufficient, our inquiry is

ended. However, if we determine the notice was insufficient, we must then determine if,

in the context of the case, the lack of notice had an impact on the defendant’s ability to

prepare a defense, and finally, if it did, how great the impact was. Adams v. State, 707

S.W.2d 900, 903 (Tex. Crim. App. 1986).

        The gist of appellee’s motion to quash was that his fifth, sixth, and fourteenth

amendment rights were denied by the “failure of the [i]nformation to allege an essential

element of the offense, namely what specific object was used to strike Charity Cravy.”

Section 22.01 of the Texas Penal Code provides that “[a] person commits an offense if

the person . . . intentionally, knowingly, or recklessly causes bodily injury to another,


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including the person’s spouse.” Tex. Penal Code Ann. §22.01(a)(1) (Vernon Supp.

2009). In instances in which the charging instrument alleges, in a single count, two

separate offenses arising under the same penal code provision, the jury must agree on

which offense it finds the defendant committed. Jefferson v. State, 189 S.W.3d 305,

311 (Tex. Crim. App. 2006); Dolkart v. State, 197 S.W.3d 887, 892 (Tex. App.–Dallas

2006, pet. ref’d). Thus, it is necessary to identify the essential elements or gravamen

of an offense and the alternate modes of its commission, if any there be. Pizzo v. State,

235 S.W.3d 711, 714 (Tex. Crim. App. 2007).          This can be best accomplished by

diagramming the statutory text according to proper grammar rules.

       As the Pizzo court noted, “the essential elements of an offense are, at a

minimum: 1) ‘the subject (the defendant)’; 2) ‘the main verb’; 3) ‘the direct object if the

main verb requires a direct object (i.e., the offense is a result-oriented crime’; [4] ‘the

specific occasion’; and [5] the requisite mental state.” Id. at 714-15. Furthermore, the

court opined, “[t]he means of commission or nonessential unanimity elements are

generally set out in ‘adverbial phrases’ that describe how the offense was committed”

and, it further reasoned, “[s]uch phrases are commonly preceded by” the preposition

“by.” Id. Moreover, the transitive verb indicates the prohibited conduct about which the

jury must be unanimous.     See White v. State, 208 S.W.3d 467, 468 (Tex. Crim. App.

2006) (citing Jefferson v. State, 189 S.W.3d at 314 (Cochran, J. concurring)). The

unanimity requirement is not violated when the jury has the option of choosing between

alternative modes of commission of the offense. Pizzo v. State, 235 S.W.3d at 715.

Thus, different modes of commission of an offense may be stated in a jury instruction if

the charging instrument alleges the different means of committing an offense in the



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conjunctive. Id. Moreover, when the acts and commission all involve the same injury to

the same complainant during the same transaction with the same level of culpability,

dispensing with jury unanimity does not violate due process. Jefferson v. State, 189

S.W.3d at 313.

       In this case, the State alleged that appellant (the subject) committed an assault

(the verb) by either striking the victim (the direct object) with his cast, his arm, or with

the car door (the “adverbial phrase”). That being so, the State did allege an offense and

included alternate ways by which it could have been committed. Thus, the trial court

erred in granting the motion to quash the information.

       Accordingly, we must, and do hereby, reverse the trial court dismissal order and

remand the cause for further proceedings.




                                                 John T. Boyd
                                                 Senior Justice

Do not publish.




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