Kass v. State

642 S.W.2d 463, 1981 Tex. Crim. App. LEXIS 1075

• Court: Court of Criminal Appeals of Texas
• Decided: June 17, 1981
• Docket: 65365, 65498
• Status: Published

Opinions

OPINION

CLINTON, Judge.

These are appeals from convictions for prostitution,¹ which were consolidated by order of this Court. Punishment assessed in each case was a fine of $500.00 and a jail term of 30 days.

In each cause appellant timely filed motions to quash the charging papers — in these cases, informations based upon complaints — which were overruled by the trial court prior to trial.² On appeal she contends that this action constituted reversible error in both causes.

In her motions to quash, appellant complained that the charging instruments failed to specify the type of “sexual conduct” she was alleged to have offered, agreed to, engaged in and solicited, respectively; thus, she was not apprised of the illegal conduct for which she was to be prosecuted, and was thereby deprived of facts necessary to preparation of her defenses.

The penal code subchapter under which appellant was prosecuted in these eases, provides in V.T.C.A. Penal Code, Section 43.01, that:

“In this subchapter:

(1) ‘Deviate sexual intercourse’ means any contact between the genitals of one person and the mouth or anus of another person.

* * * * * *

(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.

(4) ‘Sexual conduct’ includes deviate sexual intercourse, sexual contact, and .sexual intercourse.3

(5) ‘Sexual intercourse’ means any penetration of the female sex organ by the male sex organ.”

Readily then, it can be seen that the prohibited acts alleged by the State to have been engaged in or solicited by appellant— “sexual conduct” — may, by statute, consist of either “deviate sexual intercourse,” “sexual contact,” or “sexual intercourse” as those terms are defined.

We are constrained to agree with appellant, that the factual elaboration sought by her motions to quash was information to which she was entitled upon her timely written requests therefor. Ferguson v. State, 622 S.W.2d 846 (Tex.Cr.App., on State’s motion for rehearing); Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977).

The State urges that the holding of Martinez v. State, 500 S.W.2d 151 (Tex.Cr.App.1973) supports its position that no error attended the denial of appellant’s motions to quash. But in Martinez, supra, the appellant first raised his “notice” exception to the indictment on appeal, a point in the process at which none but those defects which operate to deprive the trial court of jurisdiction over the cause ab initio, will be considered for the first time. American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).

It is firmly established that a properly asserted exception to a charging instrument on the ground of inadequate notice, requires the trial court’s, as well as our, consideration of the allegations contained therein from the perspective of the accused. See generally King v. State, 594 S.W.2d 425 (Tex.Cr.App.1980); Cruise v. State, 587 S.W.2d 403 (Tex.Cr.App.1979); and Drumm, supra. Viewed in this light, should the court find that the accused is forced to “guess” as to the specific charge about which he complains, the very circumstances are presented under which his exception must be sustained.⁴ Id.

It is for this reason that we also reject the State’s contention that appellant herein would be protected against a second prosecution for the same offenses, since a person pleading former acquittal or conviction may later allege and prove facts which show the identity of the offense to be one for which he has already stood in jeopardy. While what the State says is true,⁵ when a sufficient exception to the allegations is asserted pretrial, the accused is entitled at that point to have the face of the State’s pleading aver facts which will “precisely distinguish the conduct alleged from other conduct by the accused, and thereby insure a bar to a subsequent prosecution for the same offense. Article 21.04, V.A.C.C.P.” King, supra, 594 S.W.2d at 427.

We hold that appellant’s motions to quash entitled her to the allegation of facts sufficient to bar subsequent prosecutions for the same offenses and sufficient to give her precise notice of the offenses with which she was charged. King, supra, Cruise, supra.

For the trial court’s errors in this regard, the judgments of conviction are reversed, the informations, as well as the prosecutions thereon, are dismissed.

Before the Court en banc.

1 . In Cause No. 65,365, the information alleged that appellant did,

“knowingly offer and agree to engage in, and engage in, sexual conduct with T.L. Keen for a fee."

The information in Cause No. 65,498 alleged that appellant did,

“in a public place knowingly solicit A.F. Ros-si to engage with [her] in sexual conduct for hire.”

2 . In Cause No. 65,365, appellant was convicted in a jury trial on December 3, 1979; in Cause No. 65,498, appellant entered a plea of guilty on December 4, 1979.

3 . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

4 . This criterion by which the merit of a motion to quash may be measured was stated another way in Cruise, supra, at 404:

“We believe it unnecessary in our inquiry to go beyond the prescription of Art. 21.03, V.A.C.C.P., that ‘everything should be stated in an indictment which is necessary to be proved.’ We fail to see in what manner the State might hope to prove to the jury beyond a reasonable doubt that appellant [committed the conduct alleged] without adducing facts that described the way in which he did so.”

5 . See Luna v. State, 493 S.W.2d 854 (Tex.Cr.App.1973).