IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. PD-0692-25
JEMADARI CHINUA WILLIAMS, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS KERR COUNTY
Finley, J., delivered the opinion of the Court in which Keel, Walker, and Parker, JJ., joined. Parker, J., filed a concurring opinion in which Keel, J., joined. Schenck, P.J., Richardson, and Yeary, JJ., concurred. Newell and McClure, JJ., dissented.
OPINION
Appellant was charged with aggravated promotion of prostitution. See Tex.
Penal Code § 43.04. Appellant’s indictment alleged that Appellant “did then and WILLIAMS — 2
there knowingly own, invest in, finance, control, supervise, or manage a prostitution
enterprise that used at least two prostitutes.” Appellant filed a pre-trial motion to
quash, which the trial court denied. After a jury trial, Appellant was convicted and
was sentenced to 40 years’ confinement.
On direct appeal, the court of appeals reversed. Williams v. State, 668 S.W.3d
59 (Tex. App.—San Antonio 2022) (Williams I). The court of appeals reasoned that
Appellant did not “receive[] pretrial notice of the State’s theory against which he
would have to defend.” Id. at 68. This Court granted the State’s petition for
discretionary review and reversed the court of appeals, holding that the State was
not required to elect between different statutory manners and means alleged in the
indictment. Williams v. State, 685 S.W.3d 110, 115 (Tex. Crim. App. 2024) (Williams
II) (“The maxim articulated by Ferguson [v. State, 622 S.W.2d 846 (Tex. Crim. App.
1981) (op. on State’s mot. for reh’g)] . . . can, at most, require that the State allege
more detail in a charging instrument; it would never require the State to abandon a
manner and means in the charging instrument. As long as the charging instrument
specifies all the manner and means upon which the State is permitted to rely, there
is no notice problem.”) (original emphasis). This Court then remanded the appeal
“to address Appellant’s remaining points of error.” Id. WILLIAMS — 3
On remand, the court of appeals granted Appellant permission to file a
supplemental brief. Williams v. State, 720 S.W.3d 454, 459 (Tex. App.—San
Antonio 2025) (Williams III). The supplemental brief argued that “[t]he trial court
erred in denying [Appellant’s] motion to quash because the indictment used
undefined terms of indeterminate or variable meaning, and more specific pleading
was required” under State v. Mays, 967 S.W.2d 404, 407 (Tex. Crim. App. 1998). Id.
The court of appeals agreed with Appellant and once again reversed his conviction.
Id. at 465.
The State filed a petition for discretionary review which this Court granted.
The first question before the Court is whether the court of appeals correctly
addressed Appellant’s Mays claim as unassigned error on remand. Appellant’s Mays
claim was preserved in the trial court and was not addressed by Williams II.
Consequently, we hold that the court of appeals did not err by addressing
Appellant’s arguments on remand as unassigned error.
What remains are two related questions on the merits. First, did the court of
appeals err when it held that Section 43.04(a)’s six statutory methods—“owns,
invests in, finances, controls, supervises, or manages”—are undefined terms of
indeterminate or variable meaning? Second, if the statutory methods are undefined
terms of indeterminate or variable meaning, was Appellant harmed? We do not need WILLIAMS — 4
to address the first question because we conclude that any error in Appellant’s
indictment was harmless under the applicable standard. Consequently, the judgment
of the court of appeals is reversed.
I. Factual Background
Appellant was charged with aggravated promotion of prostitution. See Tex.
Penal Code § 43.04. Appellant’s indictment alleged that Appellant:
On or about April 5, 2019, . . . did then and there knowingly own, invest in, finance, control, supervise, or manage a prostitution enterprise that used at least two prostitutes.
(Formatting altered). The indictment also alleged a prior conviction enhancement.
On October 29, 2019, Appellant filed a pre-trial motion to quash and exception
to the substance of the indictment. The trial court held a hearing on Appellant’s
motion and, with the benefit of argument from counsel, denied Appellant’s motion.
Appellant was convicted.
II. Unassigned Error
a. Applicable Law
i. Unassigned Error
In Pfeiffer v. State, 363 S.W.3d 594 (Tex. Crim. App. 2012), this Court held
that “appellate courts may review unassigned error—a claim that was preserved in
the trial court but was not raised by either party on appeal.” Id. at 599 (citing Carter WILLIAMS — 5
v. State, 656 S.W.2d 468, 468 (Tex. Crim. App. 1983); see also Williams II, 685
S.W.3d at 113 n.16; Pena v. State, 191 S.W.3d 133, 136 (Tex. Crim. App. 2006) (citing
Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990)).
As this Court recognized in Carter, “[a] constitutional grant of power of
appellate jurisdiction treats a right of appeal in criminal cases ‘as a remedy to revise
the whole case upon the laws and facts, as exhibited in the record.’” 656 S.W.2d at
468. “Once jurisdiction of an appellate court is invoked, exercise of its reviewing
functions is limited only by its own discretion or a valid restrictive statute.” Id. at
469. In the context of a remand, “[w]hen jurisdiction over the cause is restored by
remand neither statutes nor scanty prior decisions cited above dictate that the court
of appeals is limited in its renewed appellate consideration of the cause to the terms
of our order of remand.” Garrett v. State, 749 S.W.2d 784, 787 (Tex. Crim. App.
1986), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App.
1997).
ii. Preservation of Error
Texas Rule of Appellate Procedure 33.1 provides:
(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that: WILLIAMS — 6
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
Tex. R. App. P. 33.1(a). While no “hyper-technical or formalistic use of words or
phrases” is required in order to preserve error, the proffering party must “let the
trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly
enough for the judge to understand him at a time when the judge is in the proper
position to do something about it.” Golliday v. State, 560 S.W.3d 664, 670 (Tex.
Crim. App. 2018) (quoting Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App.
2012)).
b. Appellant preserved his Mays claim in the trial court WILLIAMS — 7
Appellant’s pre-trial motion to quash cited Mays for the proposition that
“[t]he statutory language is not completely descriptive of the offense if it uses an
undefined term of indeterminate or variable meaning.” Appellant then argued:
The term “invest in” could mean several things. Does this mean that he fronts the cash for the whole process or business? Or does it simply mean that a “John” that utilizes the services of the business are investing in the business and thereby could be charged with this offense? The next term “finance” is very closely related to the term “invest in”. If you are putting money into a business you are financing the business and also investing in said business.
Id. Appellant further argued:
Here the legislature included words “invest in” and “finance” but in the ordinary use of these words they can be interchangeable.
* * *
This same argument should be applied to the three terms “control, supervise, or manage.” Each of these terms can be and are used on a daily basis in an interchangeable manner. To “control” something means the same thing as to “supervise” it or to “manage” it. The legislature included each of these terms for a specific reason and we must define them to ensure the defendant is aware of the charges against him so that he can prepare a proper defense against those charges.
Based on these arguments—and others—Appellant moved the trial court to quash
the indictment.
At the hearing on Appellant’s motion to quash, Appellant’s trial counsel made
the same argument to the trial court: “I think that they need to have told us very WILLIAMS — 8
specifically what it is that they mean by the terms that they claim are a manner and
means.” Williams III, 720 S.W.3d at 462 n.2.
On remand from this Court, Appellant raised his Mays claim in his
supplemental brief. See Appellant’s Supp. Br., Williams v. State, No. 04-20-00486-
CR (Apr. 22, 2024) (“Here the statutory language of the statute is not completely
descriptive of an offense. Section 43.04 uses undefined terms of indeterminate or
variable meaning; this demands more-specific pleading than merely quoting
statutory language, to notify [Appellant] of the nature of the charges against him.”).
Appellant’s argument on remand comported with his argument in the trial court.
Clark, 365 S.W.3d at 339 (“The point of error on appeal must comport with the
objection made at trial.”).
Based on this record, we conclude that Appellant properly preserved his Mays
claim for appellate review. See Golliday, 560 S.W.3d at 670; Tex. R. App. P.
33.1(a).
c. The State’s counterarguments
The State posits that Appellant’s Mays claim should not be framed as
unassigned error for two reasons. First, the State argues that Appellant raised the
Mays claim in Williams II and this Court’s opinion in Williams II resolved
Appellant’s Mays claim. State’s Br. at 7 (citing Granviel v. State, 723 S.W.2d 141, 147 WILLIAMS — 9
(Tex. Crim. App. 1986) (“[W]here determinations as to questions of law have
already been made on a prior appeal to a court of last resort, those determinations
will be held to govern the case throughout all its subsequent stages.”)). Second, the
State argues that Appellant’s Mays claim “is a subsidiary question of an already
addressed point of error based on the fact that Appellant had already raised an
indictment notice claim.” Id. at 8 (citing Tex. R. App. P. 38.1(f) (a point of error
“will be treated as covering every subsidiary question that is fairly included”)). We
address each argument in turn.
i. Williams II
The State argues that Williams II resolved Appellant’s Mays claim. A review
of this Court’s opinion in Williams II belies that assertion. This Court framed the
issue in Williams II as follows:
Quoting from State v. Ross, [573 S.W.3d 817 (Tex. Crim. App. 2019)] the court of appeals [in Williams I] concluded that the State was required, upon timely request by the defense, to modify the indictment to allege which of the statutory methods the State sought to establish. We conclude that the court of appeals erred. The State is not required to elect between alternative statutory methods of committing an offense alleged in an indictment.
685 S.W.3d at 111 (internal footnote omitted).
In examining this issue, this Court noted: WILLIAMS — 10
When a statutory term or element is further defined by statute, the charging instrument does not ordinarily need to allege the definition. State v. Barbernell, 257 S.W.3d 248, 251 (Tex. Crim. App. 2008). “Typically the definitions of terms and elements are regarded as evidentiary matters.” Id. But there is an exception to the general rule when the definition of the statutory term or element includes more than one manner or means of commission. That exception was articulated in Ferguson [v. State, 622 S.W.2d 846 (Tex. Crim. App. 1981) (op. on State’s mot. for reh’g)].
Id. at 114 (internal citations modified in text). Based on Ferguson, this Court held:
The maxim articulated by Ferguson and later recited by Ross developed as an exception to the general rule that statutory definitions do not have to be included in a charging instrument. Even in that context, it can, at most, require that the State allege more detail in a charging instrument; it would never require the State to abandon a manner and means in the charging instrument. As long as the charging instrument specifies all the manner and means upon which the State is permitted to rely, there is no notice problem.
Id. at 115.
But nowhere in the Court’s opinion in Williams II is any discussion of Mays or
Appellant’s contention that Section 43.04(a)’s six statutory methods are undefined
terms of indeterminate or variable meaning. There was nothing in Williams II that
prevented the court of appeals from addressing Appellant’s Mays contention on
remand. 10F
1 That Appellant’s motion for rehearing in Williams II relied upon Judge Newell’s dissenting opinion does not change the outcome of the case here. As the motion for rehearing itself conceded, there are two exceptions to the general rule that an indictment that tracks the elements of the statute is sufficient, and this Court in Williams II only addressed one of them—the election WILLIAMS — 11
The State cites this Court’s decision in Ex parte Carter, 721 S.W.3d 341 (Tex.
Crim. App. 2025), for the proposition that “procedures on remand from the Court
of Criminal Appeals, however, are limited by that dictated in the remand Order.”
State’s Br. at 7. In Williams II, this Court remanded the present appeal back to the
court of appeals “to address Appellant’s remaining points of error.” 685 S.W.3d at
115. But Ex parte Carter is a habeas case, which operates under a wholly
distinguishable set of procedures. As we explained in Ex parte Carter, “a trial court
does not have habeas jurisdiction ‘unless and until this Court has made a
determination that the application satisfies an exception under Article 11.071, § 5, to
the bar against subsequent applications.’” 721 S.W.3d at 355 (quoting In re Tex.
Dep’t of Crim. Just., 710 S.W.3d 731, 738 (Tex. Crim. App. 2025)). In contrast, the
jurisdiction of courts of appeal are broad—“limited only by its own discretion or a
valid restrictive statute.” Carter, 656 S.W.2d at 469 (the other Carter, not to be
confused with Ex parte Carter). And this Court has recognized that courts of appeals
have the authority to consider new arguments raised in supplemental briefing even if
our remand order was limited to existing points of error. See Garrett, 749 S.W.2d at
exception. And with good reason: The court of appeals in Williams I only addressed that exception as well. In any event, the State does not raise an argument relying on Appellant’s motion for rehearing in Williams II, and we are under no obligation to make the State’s arguments for it. Parker v. State, 727 S.W.3d 38, 67 n.6 (Tex. Crim. App. 2025) (quoting Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011)). WILLIAMS — 12
787; see also Carroll v. State, 101 S.W.3d 454, 456 n.12 (Tex. Crim. App. 2003); and
id. at 460 (“[W]hen this Court remands a case to the intermediate court of appeals,
that court has the jurisdiction to reanalyze the relevant point of error on grounds not
specifically raised by the parties, this Court, or the remand order itself.”). We
decline the State’s invitation to extend Ex parte Carter beyond the realm of habeas
jurisprudence.
ii. Subsidiary Issue
Alternatively, the State argues that Appellant’s Mays claim is a “subsidiary
issue” of Appellant’s indictment notice claim that this Court rejected in Williams II.
Rule 38.1(f) of the Rules of Appellate Procedure states that an appellant’s brief
“must state concisely all issues or points presented for review. The statement of an
issue or point will be treated as covering every subsidiary question that is fairly
included.” Tex. R. App. P. 38.1(f).
Appellant’s Mays claim is not a “subsidiary question” of Appellant’s
challenge to the trial court’s denial of his motion to quash raised by Appellant on
direct appeal and that this Court rejected in Williams II. In his pro se brief on direct
appeal, Appellant argued:
In a long line of cases, Texas courts have held that when the Legislature defines the commission of an offense by more than one means, then the State is obliged to go beyond merely tracking the statutory language and WILLIAMS — 13
specify in the charging instrument which of those means it intended to prove at trial, in order to satisfy the notice requirement. Where the State failed to specify which of the six means of committing the offense in its indictment, the trial court erred in denying Appellant’s motion to quash.
This is the election argument that this Court rejected in Williams II. That argument
is distinct from the question of whether the statutory language in Section 43.04 uses
terms of indeterminate or variable meaning, the Mays claim that Appellant raised as
unassigned error on remand from Williams II. Put another way, both Appellant’s
Mays claim and the Ferguson issue that this Court rejected in Williams II are
“subsidiary question[s]” to a general defective notice claim on direct appeal. But
Appellant did not raise such a claim on direct appeal. Rather, he raised a narrow
claim based on the State’s alleged failure to elect between different means of
committing the charged offense. This Court rejected that challenge in Williams II.
Nothing in this Court’s ruling in Williams II prevented the court of appeals from
addressing another related defective notice challenge on remand.
d. Conclusion
We conclude that the court of appeals did not err when it addressed
Appellant’s Mays claim as “unassigned error” on remand from this Court’s decision
in Williams II. Pfeiffer, 363 S.W.3d at 599.
III. Harmless Error WILLIAMS — 14
We assume, without deciding, that the trial court erred by declining to quash
Appellant’s indictment and proceed to the question of harm. In Williams III, the
court of appeals concluded that Appellant was harmed by the defects in the
indictment. We disagree.
Article 21.19 of the Code of Criminal Procedure provides: “An indictment
shall not be held insufficient, nor shall the trial, judgment, or other proceedings
thereon be affected, by reason of any defect of form which does not prejudice the
substantial rights of the defendant.” Tex. Code Crim. Proc. art. 21.19. This
Court has previously explained the proper harm analysis under Article 21.19:
The first step is to decide whether the charging instrument failed to convey some requisite item of “notice.” If sufficient notice is given, this ends our inquiry. If not, the next step is to decide whether in the context of the case, this had an impact on the defendant’s ability to prepare a defense, and, finally, how great an impact.
Sanchez v. State, 120 S.W.3d 359, 367 (Tex. Crim. App. 2003) (quoting Adams v.
State, 707 S.W.2d 900, 903 (Tex. Crim. App. 1986)). We consider the entire record
in making the Adams determination. 707 S.W.2d at 903. The “due process
requirement may be satisfied by means other than the language in the charging
instrument. When a motion to quash is overruled, a defendant suffers no harm unless
he did not, in fact, receive notice of the State’s theory against which he would have
to defend.” Kellar v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003). WILLIAMS — 15
On the question of whether the lack of notice affected Appellant’s ability to
prepare a defense, the court of appeals reasoned:
The record reflects that it was not until opening statement that the prosecution gave any indication how it intended to show [Appellant] committed the offense: “So you are going to hear actual conversations with [the undercover investigators] talking about him operating and managing to get these prostitutes up to our county and to bring drugs with them at a cost, okay?”
Williams III, 720 S.W.3d at 465. The court of appeals further reasoned that Appellant
“had no response to this accusation; his only defense was the women found in the
car with him were not prostitutes.” Id.
The court of appeals’ analysis is not supported by the record. First, contrary
to the court of appeals’ assertion, the record supports the conclusion that the State
complied with its obligations under Article 39.14 and the Michael Morton Act. The
court of appeals held that “the State gave no indication of how it was alleging”
Appellant’s involvement in the prostitution enterprise and found “significant that
the State did not file or state in open court that it had complied with article 39.14.”
Williams III, 720 S.W.3d at 464. On appeal and in this Court, the State relies upon
its “open-file policy” to argue that Appellant received sufficient notice. This Court
has previously rejected reliance on an “open-file policy” in the context of whether a
defendant received sufficient notice under Rule 404(b). See Buchanan v. State, 911 WILLIAMS — 16
S.W.2d 11, 15 (Tex. Crim. App. 1995). We need not address whether Buchanan’s
underpinnings apply here because the record shows that both the State’s trial
prosecutor and Appellant’s own trial counsel confirmed that the State complied with
its discovery obligations. Prior to sentencing, Appellant filed a grievance against his
trial counsel and Appellant’s trial counsel filed a motion to withdraw. During the
course of the trial court’s hearing on counsel’s motion to withdraw, Appellant
himself told the trial court:
[T]here was exculpatory evidence that I asked for — specifically asked for body cam videos that Purvis on the stand said that didn’t exist when Officer Tejeda and — for the sheriff’s office and another officer, it’s in the PSI report that there is video on body worn cameras of interviewing the girls, and they specifically told them, “We are not prostitutes. We didn’t agree — we didn’t engage in prostitution, and Jay never told us that we were coming out here to do prostitution.” We never got that video. We never got the dash cam video. We asked for it. State said that they —
The trial court then directly questioned the prosecutor and Appellant’s trial counsel:
THE COURT: Let me stop you real quick.
Mr. Harpold, to the best of your knowledge, pursuant to 39.14, did the State receive all the discovery from law enforcement and forward the same to the Defense?
MR. HARPOLD: Yes, sir. WILLIAMS — 17
THE COURT: Mr. Ferguson, to the best of your knowledge, after the investigation that you performed, did you receive all the discovery?
MR. FERGUSON: I have, Your Honor.
Consequently, the record refutes the court of appeals’ assertion that the State’s
discovery obligations under the Michael Morton Act and Code of Criminal
Procedure 39.14 were not complied with.
Second, the “actual conversations” that the State referred to in opening
statements as evidence of Appellant’s involvement in the prostitution enterprise
were known to Appellant prior to trial. In fact, they were the subject of a motion to
suppress hearing that was litigated the same day as the motion to quash hearing.
Appellant filed a motion to suppress on October 29, 2019. In it, Appellant claimed
that “statements obtained from” him “were obtained in violation of Article 38.22 of
the Texas Code of Criminal Procedure.” The motion to suppress specifically
referenced communications between investigators and Appellant:
On April 4, 2019 Kerr County Sheriff’s Department (KSO) in conjunction with Fredericksburg Police Department (FPD) and Texas Department of Public Safety (DPS) began investigating Mr. Williams for Promotion of Prostitution. The investigation began with KSO Investigator Jeff Purvis received information that the defendant was trafficking females and that he had brought them to Ker County in the past. Inv. Purvis contacted Inv. Hirl of FPD to work in an uncover capacity. Inv. Hirl began texting with Defendant and negotiating for him to bring some girls to Kerr County to party. Over a period of WILLIAMS — 18
approximately two days the two made arrangements for the defendant to bring three girls and “party favors” to Kerr County on evening [sic] of April 5, 2019. On the morning of April 5,2019 Inv. Hirl communicated with Mr. Williams by telephone voice call. In this communication William allegedly confirmed he would provide the services for that evening. Inv. Hirl had numerous communications with Williams and the girls throughout the day by both text messages and voice calls. At least thirteen of the communications were by voice calls.
The trial court held a hearing on Appellant’s motion to suppress on January 31, 2020,
approximately three months after the motion was filed, and about one month before
Appellant’s trial on March 3, 2020. Consequently, the phone communications were
known to Appellant before trial.
Moreover, the rest of the evidence that the State was going to use to prove its
case against Appellant was also known to Appellant at the time of trial. The record
on appeal contains the probable cause affidavits and supplemental reports created by
Kerr County Sheriff’s Office investigators in this case. Though they were not
submitted as physical exhibits at Appellant’s trial, the reports identify the same
information contained in Appellant’s motion to suppress, including the specific
communications mentioned in the motion to suppress and in the State’s opening
arguments. The only two witnesses called by the State at trial were Investigator Hirl
and Jeff Purvis, the affiant for the probable cause affidavit. Furthermore, Investigator
Hill was one of the two witnesses the State called at the motion to suppress hearing. WILLIAMS — 19
The testimony of the witnesses throughout the proceedings were consistent with the
probable cause affidavits and supplemental reports. In sum, it is clear from the record
that Appellant was aware of the existence of communications between him and law
enforcement as well as the evidence that the State was going to present to prove its
case long before opening statements of his trial.
Lastly, even with all of this evidence provided to him, Appellant chose to deny
the existence of prostitution enterprise rather than dispute his participation in the
prostitution enterprise. Appellant’s notice claim that the court of appeals addressed
on remand in Williams III centered on whether the statutory terms in the indictment
sufficiently defined the possible actions by which Appellant was involved in the
prostitution enterprise. Had Appellant admitted the existence of such an enterprise
and instead attacked how he was involved in the enterprise as a defensive theory, this
case may very well be different. But by disavowing the existence of prostitution
enterprise entirely, any inadequacies in defining the statutory terms did not harm
Appellant.
On this record, assuming without deciding that the indictment failed to
convey adequate notice, we conclude that Appellant was not harmed. Sanchez, 120
S.W.3d at 367; Adams, 707 S.W.2d at 903. WILLIAMS — 20
IV. Conclusion
For the foregoing reasons, we reverse the judgment of the court of appeals and
remand this case for proceedings consistent with this opinion.
Delivered: August 20, 2026 Publish