                                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
