                                                                                ACCEPTED
                                                                            01-15-00737-CR
                                                                 FIRST COURT OF APPEALS
                                                                         HOUSTON, TEXAS
                                                                      12/30/2015 6:42:15 PM
                                                                      CHRISTOPHER PRINE
                                                                                     CLERK
                        NO. 01-15-00737-CR

                     IN THE COURT OF APPEALS
                       FOR THE FIRST DISTRICT             FILED IN
                                                   1st COURT OF APPEALS
                          HOUSTON, TEXAS               HOUSTON, TEXAS
                                                   12/30/2015 6:42:15 PM
RONALD PARKS                §                APPELLANT
                                                   CHRISTOPHER A. PRINE
                            §                               Clerk

VS.                         §
                            §
THE STATE OF TEXAS          §                APPELLEE


                        APPELLANT'S BRIEF


                 APPEAL IN CAUSE NO. 2009726
            IN COUNTY CRIMINAL COURT AT LAW NO. 1
                      OF HARRIS COUNTY

                                             CLINT DAVIDSON
                                             TEXAS BAR NO. 24053172
                                              3303 MAIN ST., SUITE 305
                                              HOUSTON, TEXAS 77002
                                             PHONE: 713-226-7727
                                             FAX: 713-528-4888
                                EMAIL: clintdavidsonlawyer@gmail.com

                                       ATTORNEY FOR APPELLANT

APPELLANT REQUESTS ORAL ARGUMENT




                                  1
                              IDENTIFICATION OF PARTIES


1.   Ronald Parks..............................................................................Appellant

     c/o Clint Davidson, Attorney at Law
     3303 Main St., Suite 305
     Houston, Texas 77002

2.   The State of Texas.....................................................................Appellee

3.   The Honorable Paula Goodheart...........................................Trial Judge

     1201 Franklin St. 8th Floor
     Houston, Texas 77002

4.   Alan Curry, Chief Prosecutor, Appellate Division......Counsel for the State
     Ray Vasquez, Assistant District Attorney...........Trial Counsel for the State

     Harris County District Attorney's Office
     1201 Franklin St., 6th Floor
     Houston, Texas 77002

5.   Clint Davidson.............................Trial and Appellate Counsel for Appellant

     3303 Main St., Suite 305
     Houston, Texas 77002




                                                   2
                                         TABLE OF CONTENTS

Identification of Parties.........................................................2

Table of Contents.................................................................3

Index of Authorities...........................................................4-5

Statement of the Case.........................................................6

Statement Regarding Oral Argument...................................6

Issues Presented.................................................................7

Statement of Facts...........................................................7-8

Summary of the Argument..................................................8
.
Argument.......................................................................9-18

Prayer...............................................................................18

Certificate of Compliance.................................................19

Certificate of Service........................................................19




                                                          3
                                     INDEX OF AUTHORITIES


                                                 CASES

Amaya v. State,
551 S.W.2d 385
(Tex. Crim. App. 1977) ........................................................................16,17

Carney v. State,
31 S.W.3d 392
(Tex. App.--Austin 2000, no pet.) …....................................................... 12

Castillo v. State,
689 S.W.2d 443
(Tex. Crim. App. 1984)...................................................................14,15,16

Cruise v. State,
587 S.W.2d 403
(Tex. Crim. App. 1979) ...................................................................14,15,16

Doyle v. State,
661 S.W.2d 726
(Tex. Crim. App. 1983) …..................................................................... ....16

Haecker v. State,
571 S.W.2d 920
(Tex. Crim. App. 1978) ........................................................................14,16

Miller v. State,
647 S.W.2d 266
(Tex. Crim. App. 1977) .............................................................................16

Moreno v. State,
413 S.W. 3d 119
(Tex. App.--San Antonio, 2013, no pet.) ...................................................13

State v. Campbell,
113 S.W.3d 9
(Tex. App.--Tyler, 2000, pet. ref'd) .....................................................15.16

                                                      4
                                             STATUTES

TX PENAL CODE 38.15 ...................................................9,10,12

TX CRIM PRO 21.03 ...................................................................7

TX CRIM PRO 21.04................................................................... 7

TX CRIM PRO 21.11 ...................................................................7

TX CRIM PRO 21.15.................................................7,8,10,11,13

TX CRIM PRO 21.23................................................................... 9

                              CONSTITUTIONAL PROVISIONS

Article I, Section 9, Texas Constitution....................................................17

Amendment 5, U.S. Constitution.............................................................17

Amendment 14, U.S. Constitution............................................................17




                                                    5
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

     RONALD PARKS, Appellant, by and through his attorney, CLINT

DAVIDSON, and in accordance with Rule 38 of the Texas Rules of Appellate

Procedure, presents to the Court this Brief on behalf Appellant PARKS and

shows this Court the following.


                          STATEMENT OF THE CASE

     This is an appeal from the denial of RONALD PARKS' Motion to Quash

and Exception to the Substance of the Information. C.R. 43. RONALD PARKS

was charged by information with the offense of Interference with Public Duties.

C.R. 6. PARKS entered a plea of not guilty to the charge and the case then

proceeded to a trial before a jury. C.R. 44. PARKS was found guilty and

sentenced by the Court to 30 days confinement in the Harris County Jail. C.R.

55-56. A Notice of Appeal was timely filed. C.R. 59.

                STATEMENT CONCERNING ORAL ARGUMENT

     The issues and arguments presented in this brief are given a more

developed and focused treatment than in PARKS' original Motion filed in the trial

court and in the subsequent argument on the record. The Appellant believes

that an opportunity for oral argument would aid the Court in its analysis of these

issues.



                                        6
                                ISSUES PRESENTED

      Does an information purporting to charge the offense of interference with

public duties that recites that the defendant failed to obey a lawful order without

specifying that lawful order, or the manner and means of the defendant's failure

to obey it, or how that interfered with a police officer, therefore fail to sufficiently

charge an offense in accordance with Chapter 21 of the Texas Code of Criminal

Procedure? More specifically, does such a charging instrument:

      1) fail to properly plead an act in conjunction with the mental state of
      criminal negligence as required by Article 21.15?;

      2) lack the required certainty to enable the accused to plead the judgment
      that may be given upon it in bar of any prosecution for the same offense
      as required by Article. 21.04?;

      3) fail to state everything necessary to be proved as required by Article.
      21.03?;

      4) fail to give the accused notice of the offense charged with sufficient
      certainty as required by Article. 21.11?;

5) ultimately fail to charge an offense as a result of these issues and prejudice
the substantial rights of the Defendant resulting in a denial of due process or
due course of law?


                              STATEMENT OF FACTS

      RONALD PARKS timely filed a Motion to Quash and Exception to the

Substance of the Information in this case. C.R. 35-42. The State did not file a


                                            7
written response.

      Omitting the formal parts, the information alleged that: RONALD PARKS,

on or about February 13, 2015, did then and there, unlawfully with criminal

negligence, namely by FAILING TO OBEY A LAWFUL ORDER, interrupt,

disrupt, impede and interfere with B.GAMBLE, a peace officer, while B.

GAMBLE was performing a duty and exercising authority imposed and granted

by law. C.R. 6.

      The Motion was presented to the Court before the trial commenced and a

hearing on the record was conducted. R.R. 4-9. The Court heard argument

from the Defense and the State and entered an order denying the relief

requested on August 11, 2015. C.R. 43. From this Order, PARKS now appeals.


                         SUMMARY OF THE ARGUMENT

      The argument is organized into three sections followed by a brief

conclusion.

      The first section discusses the statute and requirements under Article

21.15 of a charging instrument alleging the mental state of criminal negligence.

A hypothetical charge that simply tracks the statute is presented to illustrate that

this would not be sufficient.

      The second section examines the information in the case and finds that it

fails to allege an act of criminal negligence with the reasonable and sufficient

                                         8
certainty the law requires of such a charging instrument.

      The third section discusses the pleading of manner and means in more

detail and looks at cases with charging instrument issues that parallel Parks'

case where a motion to quash the charging instrument was litigated. The aim of

this section is to illustrate that the information in this case lacks the necessary

specificity in its allegation of the manner and means of committing the offense.

      The conclusion contains a brief rhetorical flourish and urges that it would

not be unreasonable to find that in light of its flaws, the information in this case

fails to charge an offense.

                                    ARGUMENT

      At the outset it should be noted that Article 21.23 of the Code of Criminal

Procedure provides that “The rules with respect to allegations in an indictment

and certainty required apply also to an information.” TX CRIM PRO Art. 21.23

(West, 2015).

      Charging instrument and information are used interchangeably in the

following argument. Where reference is made to charging instruments generally

this is intended to include an information charging an offense.

The Statute

Section 38.15 of the Texas Penal Code “Interference with Public Duties”, reads,

in pertinent part:


                                          9
      A person commits an offense if the person with criminal negligence
      interrupts, disrupts, impedes, or otherwise interferes with a peace officer
      while the peace officer is performing a duty or exercising authority
      imposed or granted by law;
      TX PENAL CODE 38.15 (a)(1). (West, 2015)

      The statute tells us the culpable mental state for offense and the result.

The statute does not define the manner and means of committing the offense or

provide a more specific actus reus. Logically, the inference to be drawn is that

there could be many criminally negligent acts or omissions that might interrupt,

disrupt, impede or otherwise interfere with a peace officer. The legislature

realized that a wide array of acts or omissions could interfere with the duties of a

peace officer and did not attempt to anticipate all of them.

      Furthermore because the culpable mental state in the statute is criminal

negligence, it must be construed in pari materia with Article 21.15 of the Code of

Criminal Procedure.

      Article 21.15 states specific requisites for a charging instrument that

alleges recklessness or criminal negligence. The charging instrument in this

case does not fulfill them. Specifically, Article 21.15 requires the following:

       ...the complaint, information, or indictment in order to be sufficient in any
such case must allege, with reasonable certainty, the act or acts relied upon to
constitute recklessness or criminal negligence, and in no event shall it be
sufficient to allege merely that the accused, in committing the offense, acted
recklessly or with criminal negligence. TX CRIM PRO Art. 21.15. (West, 2015)

Simply tracking the statute here would not be sufficient. If we were to compose a


                                         10
charge that merely tracked the statute, it would read something like this:

      RONALD PARKS, on or about February 13, 2015, did then and there acting
      with criminal negligence, interrupt, disrupt, impede, or or otherwise interfere
      with B. GAMBLE, a peace officer, while he was performing a duty or
      exercising authority imposed or granted by law.

Missing from such a charging instrument is an act constituting criminal negligence

as required by Article 21.15. In more general terms there is no manner and means

of committing the offense alleged.

The Information

      From the four corners of the charging instrument in this case, we cannot

answer with any certainty the question “What did the Defendant do wrong?” He

failed to obey a lawful order...to do what? Or to refrain from doing what? It is

alleged that this interfered with Officer Gamble but we have no idea how or what

the manner and means of said interference was. Alleging failure to obey a lawful

order does not satisfy the requirement of Article 21.15 or allege the necessary

manner and means of committing the offense in question.

      The reason for this is that failing to obey a lawful order is not an act in

itself, but a description or category of other conduct, of a more specific act or

omission. For example if Parks was lawfully ordered to remain on the sidewalk

and then crossed the street that is an act that could fairly be described as failing

to obey a lawful order. In the alternative, if Parks remained on the sidewalk after


                                         11
being lawfully ordered to move along or move across the street, that is an

omission that could as well be fairly described as failing to obey a lawful order.

      “Lawful order” is undefined in the statute or elsewhere in the Penal Code. It

is axiomatic that we cannot determine if the order given was actually lawful or not

without knowing what that order was. Even if we restate the language of the

charging instrument in other words, we are still left with a disjunction that is not

particular or specific. Parks did not do what the officer told him to do or Parks

did something the officer told him not to do. We still do not know what the officer

told Parks or what Parks did or did not do.

      Furthermore, it is an affirmative defense to prosecution under 38.15 (d) if

the conduct of the accused consisted of speech only. TX PENAL CODE 38.15

(d) Parks has know way of knowing if that defense is available to him without

knowing the order given, the context, or the act or omission that comprised the

alleged misconduct. See Carney v. State, 31 S.W.3d 392, 398 (Tex. App.--

Austin 2000, no pet.), discussing the statute's history and finding that the

defense could be asserted even if the officers were “stalled” and became

annoyed.

Manner and Means

      Having established that the allegation “failure to obey a lawful order,” lacks

the certainty required of a charging instrument as well as the allegation of a


                                         12
criminally negligent act as required by Article 21.15, we now move to the

question of manner and means.

      The phrase "manner or means" describes how the defendant committed

the specific criminal act, which is the actus reus. Moreno v. State, 413 S.W.

119 at 125 (Tex. App.--San Antonio, 2013, no pet. h.) This goes to the heart of

the ambiguity in the charging instrument in this case. What here is the specific

criminal act?

      From the perspective of the of the charging instrument, if failure to obey a

lawful order is the criminally negligent act, what then is the manner and means

of interference? How did Parks failure to obey a lawful order interfere with

Officer Gamble?

      If on the other hand, what the information intends to convey is that

interfering with a police officer is a criminally negligent act and the manner and

means was the failure to obey a lawful order, this does not cure the ambiguity in

the charging instrument.

      From the perspective of the Defendant, this is a critical ambiguity.

      As previously pointed out, the order given is not stated in the information

and neither “lawful order” nor “failure to obey a lawful order” are defined by the

statute or the Penal Code, generally. Logically there are a multitude of lawful

orders that could be given by a peace officer as well as an equal variety of ways


                                        13
in which those orders might be disobeyed.

      As the Court of Criminal Appeals observed in Castillo v. State:

      “In many cases an information will be considered sufficient if it follows the
      language of the statute. However, this rule applies only where the
      information is framed under a statute which defines the act constituting the
      offense in a manner that will inform the accused of the nature of the
      charge. In other words, if the language of the statute is itself completely
      descriptive of the offense, and information is sufficient if it follows the
      statutory language. By the same test, if the language of the statute is not
      completely descriptive then merely tracking the statutory language would
      be insufficient. Castillo v. State, 689 S.W.2d 443 at (Tex. Crim. App.
      1984)

      As previously pointed out, a charging instrument that simply tracked the

statute in Park's case would still be inadequate. Castillo was an arson case

where the indictment failed to allege the manner and means used to start the

fire. The trial court overruled Castillo's motion to quash the indictment and the

Court of Appeals reversed the trial court. The State filed a Petition for

Discretionary Review. The Court of Criminal Appeals stated in its opinion:

      “When considering a motion to quash the indictment, it is not sufficient to
      say the defendant knew with what offense he was charged; rather, the
      question presented is whether the face of the indictment or charging
      instrument sets forth in plain and intelligible language sufficient information
      to enable the accused to prepare his defense.” Castillo at 447 citing
      Haecker v. State 571 S.W.2d 920 (Tex. Crim App. 1978).

      The Court affirmed the judgment of the Court of Appeals and ordered the

prosecution dismissed. In its detailed analysis in the opinion, the Court found

the case similar to Cruise v. State.


                                         14
      “The instant case is more like Cruise v. State, 587 S.W.2d 403
      (Tex.Crim.App. 1979). There this Court held that the term "cause bodily
      injury" in a robbery indictment did not, upon a timely motion to quash, give
      precise notice of the offense with which Cruise was charged, noting that
      the term "cause bodily injury" not statutorily defined was susceptible to an
      almost endless list of possible meanings, and that it would have been
      impossible for the State to prove the element without also showing the
      manner in which it was done. ”Castillo at 448

      The particular issue of a deficiency in pleading the manner and means of

committing an offense has been addressed in a number of opinions. Cruise v.

State, is a frequently cited opinion that contains a fairly thorough discussion of

the case law at that time. Cruise v. State, supra

      A more recent opinion that reviews cases addressing the issue is State v.

Campbell, 113 S.W.3d 9 (Tex--App Tyler 2000, pet. ref'd). Campbell is a case

where the defendant filed a motion to quash an indictment that purported to charge

the offense of abuse of official capacity and the manner and means alleged was

failing to report to work on three specific days. The trial court had granted the

motion and the State then appealed. In the trial court, the defense had argued that

the indictment lacked specificity as to how the defendant benefited from his

absence or had harmed or defrauded another. The defense further argued that

the indictment failed to charge an offense. The Court of Appeals affirmed the trial

court. The Court observed that:

      “To presume that an accused is guilty, and therefore knows the details of
      his offense and can prepare his defense despite a vague indictment, is

                                         15
     contrary to all proper principles of justice.” Campbell at 12

     Of note is the fact that Campbell originated in the 228 th District Court in

Harris County but was nonetheless heard by the Court of Appeals in Tyler.

The Court in Campbell cited a number of examples in its opinion of similar

cases where a motion to quash a charging instrument had either been affirmed

or denial by the trial court had been reversed.

     “The defendant, upon timely exception, may be entitled to a specific
     allegation of the manner or means utilized in commission of the offense in
     order to bar subsequent prosecution for the same offense and give him
     precise notice of the offense with which he was charged.”

     Castillo v. State, 689 S.W.2d 443, 449 (Tex.Cr. App.1985) (failure to
     allege the manner and means used to start a fire in an arson case);

     Doyle v. State, 661 S.W.2d 726, 730 (Tex.Cr.App.1984) (failure to allege
     the manner and means used to communicate the threat in a retaliation
     case);

     Miller v. State, 647 S.W.2d 266, 267 (Tex.Cr.App. 1983) (failure to more
     specifically allege "damage and destroy" in criminal mischief case);

     Cruise v. State, 587 S.W.2d 403, 405 (Tex.Cr.App.1979) (failure to allege
     manner and means of causing bodily injury in an aggravated robbery);

     Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978) (failure to allege
     more specifically the manner and means of "torture" in cruelty to animals
     allegation).
     Campbell, 12-13.

     Cited later in the Campbell opinion is Amaya v. State, 551 S.W.2d 385

(Tex. Crim. App. 1977). The deficiency in the charging instrument in Amaya

merits consideration for its similarity to Parks' case. Amaya was indicted for

                                        16
welfare fraud. The indictment alleged that the defendant obtained welfare

assistance by means of a “willfully false statement” but failed to allege what that

particular statement was. Amaya filed a written exception to the indictment in

the trial court, complaining that the charging instrument did not specify the false

statement that was allegedly made. On appeal, Amaya contended that the trial

court erred in overruling her exception.

      The Court reversed and ordered the information dismissed, finding that

Amaya was entitled to know the specific statement the State was accusing her

of making and would seek to prove at trial of the offense. Amaya at 387

Conclusion

      It would be difficult to imagine a more wickedly totalitarian and Kafkaesque

charging instrument than one that merely alleges that the accused interfered

with a police officer by failing to obey lawful order and nothing more. The

accused could be tried for disobeying one lawful order this week and then next

week tried for disobeying some other lawful order.

      There is no doubt that such a charging instrument violates the

fundamental constitutional protections of both Article I, Section 9 of the Texas

Constitution, and the the and 5th and 14th Amendments of the United States

Constitution.

      As well, there is little doubt that such charging instrument fails to comply


                                           17
with the applicable provisions of Chapter 21 of the Code of Criminal Procedure;

that it fails to enable the accused to plead the judgment given on it in bar of any

prosecution for the same offense; that it fails to state everything necessary to be

proved; that it lacks the certainty required to give the accused notice of the

charge they must defend against at trial.

      Given the egregious defects in the charging instrument, rather than search

in vain to find a coherent offense charged within it, the more sensible view would

be to conclude that it fails to charge an offense at all.

                                      PRAYER

WHEREFORE PREMISES CONSIDERED,

      Appellant RONALD PARKS prays that this honorable Court reverse the

Trial Court's order denying his Motion to Quash the Information in this case and

order the Information dismissed and the Appellant discharged.

                                                        Respectfully submitted,

                                                          /s/ Clint Davidson
                                                               Clint Davidson
                                                               TBN: 24053172
                                                             3303 Main St., Suite 305
                                                              Houston, Texas 77002
                                                               Phone: 713-226-7727
                                                    clintdavidsonlawyer@gmail.com
                                                       Attorney for RONALD PARKS




                                          18
                       CERTIFICATE OF COMPLIANCE

This is to certify that Appellant's Brief was computer generated and contains

3,507 words in accordance with TX R. App. 9.4(i)(1).

                                                             /s/ Clint Davidson
                                                                 Clint Davidson

                          CERTIFICATE OF SERVICE

     This to certify that a true and correct copy of Appellant's Brief was served

on the Office of the District Attorney for Harris County on December 30, 2015 by

electronic mail to curry_alan@dao.hctx.net.

                                                           /s/ Clint Davidson
                                                               Clint Davidson




                                       19
