530 S.W.3d 186
Tex. App.2016Background
- Denise Deane Nelson was charged by an amended two-count information with soliciting prostitution via a public internet forum (www.backpage.com), each count alleging she "solicit[ed] ... to engage in sexual conduct, to-wit: sexual contact; for hire."
- Nelson moved to quash the information, arguing the phrase "sexual contact" is defined in multiple ways and the information failed to specify the particular type, depriving her of fair notice.
- The trial court granted the motion to quash; the State appealed under Tex. Code Crim. Proc. art. 44.01(a)(1).
- The court reviewed the sufficiency of the information de novo because notice is a question of law.
- The majority held Kass v. State (Court of Criminal Appeals, 1982) controlled and required greater specificity when a statutory definition supplies alternative manners of committing an element, so the information was insufficient.
- Justice Davis dissented, arguing Barbernell (2008) supplies the correct two-step notice analysis and that "sexual contact" is an evidentiary matter that need not be further specified for a solicitation charge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an information alleging solicitation of "sexual conduct, to‑wit: sexual contact" gives constitutionally sufficient notice | State: The information tracked statutory language and was adequate; Kass should not bar prosecution here | Nelson: Under Kass, the term "sexual contact" includes multiple manners and must be specified to give precise notice | The court affirmed the quash: Kass controls; the information is insufficient to give precise notice and to bar later prosecution |
Key Cases Cited
- Kass v. State, 642 S.W.2d 463 (Tex. Crim. App. 1982) (holding that when a statutory definition provides alternative manners of committing an element, the State must plead the specific manner to give adequate notice)
- State v. Barbernell, 257 S.W.3d 248 (Tex. Crim. App. 2008) (announcing the two‑step fair‑notice analysis and holding statutory definitions are usually evidentiary unless they describe alternative manners of committing the defendant's act)
- Cardenas v. State, 640 S.W.2d 291 (Tex. Crim. App. 1982) (discussing that when the alleged act is an offer/agreement to engage in future sexual conduct, the intent or specifics of the future act need not be alleged as part of the conduct element)
- State v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App. 2013) (confirming de novo review applies to motions to quash because sufficiency of a charging instrument is a question of law)