Kass v. State

touch- any means contact’ (3) ‘Sexual Schneider, Houston, appel- for Stanley G. breast, anus, any part ing of lant. with intent genitals of another Holmes, Jr., El- Atty., Ray John B. Dist. desire of the sexual gratify arouse or Beers, At- vin Brad Asst. Dist. Speece and person. Houston, Huttash, tys., Robert deviate includes (4) conduct’ ‘Sexual Austin, for the Atty., State. contact, and intercourse, sexual sexual .sexual intercourse.3 ROBERTS, and CLIN- Before ODOM (5) means any pen- ‘Sexual intercourse’ TON, JJ. etration organ by of the female sex organ.” male sex OPINION then, Readily it can be seen that prohibited alleged acts State have CLINTON, Judge. engaged been by appellant— or solicited for from convictions appeals These are statute, “sexual may, by consist conduct” — were which consolidated prostitution,1 intercourse,” of either “deviate sexual “sex- assessed order of this Punishment Court. contact,” ual or “sexual intercourse” as jail in each a fine of case was $500.00 those terms are defined. days. term of 30 agree We are constrained to with timely filed mo- appellant In each cause lant, that the sought by factual elaboration papers charging tions —in her motions to was information to cases, upon based com- these informations which she was entitled her timely overruled plaints were —which requests Ferguson written therefor. she con- appeal prior court to trial.2 State, 622 (Tex.Cr.App., on reversible this action constituted tends that rehearing); State’s motion for Drumm v. causes. error both State, 560 944 (Tex.Cr.App.1977). S.W.2d urges holding Mar appellant In her motions to com- quash, (Tex.Cr.App. tinez v. plained charging instruments 1973) supports position its that no con- error specify type failed to of “sexual offered, attended the denial of motions duct” she alleged Martinez, But in to, solicited, supra, ap in and agreed engaged respec- 65,365, 65,365, appellant was convicted information 2. Cause No. In Cause No. 3, 1979; did, jury in Cause trial on December 65,498, on in, No. entered engage agree “knowingly offer December in, for T.L. Keen engage sexual conduct a fee." throughout supplied emphasis 65,498 alleged 3. All No. in Cause The information opinion otherwise indi- unless writer of this did, cated. knowingly Ros- place A.F. public solicit “in a engage conduct in sexual si to with [her] hire.” pellant informations, first his as the prosecu- raised “notice” as well appeal, thereon, a point indictment in the tions dismissed. process which none but those defects banc. en Before operate deprive the trial court of jurisdiction initio, over cause ab will be ON MOTION OPINION STATE’S considered for first time. American FOR REHEARING Corp. Plant Food (Tex.Cr.App.1974). DAVIS, Judge. TOM G. It is firmly established a properly that is a conviction for Appeal taken from exception asserted to a charging instrument Code, Penal 43.- prostitution. V.T.C.A. Sec. ground notice, on the of inadequate re- the 02(a)(1). Following plea guilty, her of court’s, our, the quires trial as well as con- at 30 appellant’s punishment court assessed sideration of the allegations contained days and $500.00. therein from of perspective the the accused. error, In of ground appellant her sole King State, See v. 594 generally S.W.2d 425 failing grant the court in to contends erred (Tex.Cr.App.1980); State, v. Cruise to in this her motion the information Drumm, 403 (Tex.Cr.App.1979); S.W.2d and alleges in pertinent cause. The information supra. in Viewed this light, should the 2, 1979, appellant that on October did: court find that the accused is forced to agree and to en- “guess” knowingly “... gage, offer as the specific charge to about engage in, and sexual conduct with which he complains, very the circumstances T.L. Keen for a fee.” presented are under exception which his must be sustained.4 Id. quash complained The motion to that It is for this reason we reject give appel- also information was insufficient to the State’s contention that of she appellant herein lant notice the offense with which be protected against would prose- meanings a second due to the numerous charged cution offenses, for the same since a of the “sexual term conduct.” See V.T.C.A. pleading acquittal 43.01(4). original former Penal sub- may conviction Sec. later allege prove mission, and panel facts which show Court concluded a this identity of overruling ap- the offense to one for which court erred in has he already jeopardy. stood in pellant’s quash. While motion to what the says true,5 State is when a suffi- 488, this Craven 613 S.W.2d cient to the allegations is asserted a who Court considered whether defendant pretrial, the accused is at point entitled pleads guilty may complain appeal on the face of the pleading There, quash. of a it overruling motion aver facts which will “precisely distinguish was stated: the conduct from other conduct by earlier times the Helms rule in accused, thereby a insure bar to a finding our that would mandate subsequent prosecution same of- ‘all nonjurisdictional has waived defects’ 21.04, fense. Article King, V.A.C.C.P.” su- below, in Helms v. proceedings pra, 427. 925, (Tex.Cr.App.1972). 484 S.W.2d We hold that motions “However, Helms, since supra, Legis- allegation her entitled facts suffi- lature has added proviso to the Article subsequent prosecutions to bar cient for the 44.02, ‘abrogated V.A.C.C.P. that this rule to give same offenses sufficient her regarding the of a guilty effect in plea precise notice the offenses with which plea court,’ cases bargains before the King, Cruise, was charged. supra, she su- thereby prior superceding ‘the case law as pra. Helms, stated in supra.’ Ferguson v. For regard, the trial court’s errors 910 (Tex.Cr.App. reversed, judgments of 1978). Therefore, conviction we must first deter- proved.’ in what We fail to see manner 4. This criterion which the merit of a motion beyond jury might hope prove quash may be measured stated another way Cruise, supra, doubt that [committed a reasonable at 404: adducing alleged] facts without the conduct unnecessary inquiry “We it believe our way so.” in which he did that described 21.03, go beyond prescription of Art. V.A.C.C.P., ‘everything should be stated See (Tex.Cr. Luna v. 493 necessary App.1973). in an indictment to be recommen- punishment certain and that the single review of mine whether our followed court. How- dation was the Arti- of error is authorized ground ever, nothing sug- the record to there proviso 44.02 or is circumscribed cle gest had been recommendation Helms That the turns, rule. determination agreed upon by prosecutor, course, on whether there was attorney plea as result of a her bargain honored trial court.” plea bargain. We thus conclude that record Id. at plea reflect the of a fails to existence bar- Craven, ultimately conclud- the Court gain. ed that the record revealed that record to reflect that the It Since the fails plea bargain. was the result of a plea plea result 44.02, in the instant case was the under therefore stated that Art. plea of negotiated bargain, appellant’s an appeal could from supra, the defendant right complain her guilty waived quash. his motion to ruling adverse motion to overruling court’s action as instant case reveals The record in the State, supra. Nothing Craven follows: presented for review. charged You are “THE COURT: rehearing grant- is motion for State’s plead to that prostitution, you how do ed judgment and the is affirmed. guilty guilty? or not Guilty. “MS. KASS: TEAGUE, JJ., and dissent. ROBERTS you pleading guilty “THE Are COURT: and no other you guilty for CLINTON, Judge, dissenting. reason? Yes, sir. “MS. KASS: a grant rehear- arguing In Court Attorney, one of ing affected District “THE COURT: Recommendation? the guilty plea the handled whose assistants in days confinement “MR. 30 BEERS: in below, reason as predicates one and a hundred dollar fine. jail five follows: plea guilty, your “THE COURT: of stating Appellant plead guilty, you guilty the Court and assesses finds guilty because she pleading that she was days jail, a five hun- your penalty 30 for reason. The no other guilty plus dred dollar fine cost of Court.” punishment then assessed trial court State, 509 319 Rodriguez In v. S.W:2d agreed plea with the recom- compliance the (Tex.Cr.App.), this Court stated that and the Appellant between mendation the guilty plea of whether a is question State."1 a of plea bargain, of a is question result to be determined from evidence fact To pretend plea bargain there is no this State, King 511 at trial. v. presented See justice system case illserves the criminal (Tex.Cr.App.). 32 those cases S.W.2d working and those in it.2 negotiat- which this Court has considered a Obviously colloquy excerpted brief been evidence in plea, ed there has by does majority from the record not finding plea bar- support that record plea usual to a inquiry reflect as bar- State, Miller 608 occurred. See v. gaining gain 26.13, requires that Article V.A.C.C.P. State, v. (Tex.Cr.App.); 931 Carter S.W.2d simple reason that over at least one v. (Tex.Cr.App.); Bass 608 691 S.W.2d this years hundred Court has told bench State, (Tex.Cr.App.). 576 400 S.W.2d time again and the bar and time that statutory precede re admonishment “need not the instant case The record in guilty of a acceptance plea a to a recommended prosecutor veals Rehearing by State, indi- in a Motion for made emphasis unless otherwise is mine All Court, challenged except by and is not cated. — incipient Appeals With the itself. Courts may and about to undertake Court initial cases review of most bond forfeiture crimi by cases, made “accept imposed statement nal the burden as true soon to be does on or the the facts by as to applying in his brief them will be eased somewhat challenged opposing record,” salutary recognized that is not we rule in bond for (Tex.Cr. Smith v. State, party. 561 feiture cases at least rehearing to motions for App.1978); Smith v. 501 561 S.W.2d questioned by where the matter stated is not (Tex.Cr.App.1978); Smith any party in the cause. is (Tex.Cr.App.1978). Here statement misdemeanor,” Empy v. from the any procedural 571 S.W.2d State of informity Now, 529-530 (Tex.Cr.App.1978).3 respect with indeed, the case at in its bar — however, practi- its equivalent noted, functional motion for rehearing the State “The cally required Court. trial court punishment then assessed compliance the agreed plea recommen- Because the disposes Court of this cause Appellant dation between State.” ruling on a non-issue rather than resolv- surely And that is a true statement. ing the serious problems confronting the Nevertheless, opinion bench and the when bar an sponte sua rehearing motion for charging present- form the instrument suggest “nothing in record to quash, ed a motion I finds dissent. agreed upon had the recommendation been her attor- prosecutor, appellant This, ney plea bargain.” of a Court, as the result LEAVE FILE MOTION FOR TO according to the means IN REHEARING NO. 65365 right plea “waived her lant’s Motion for leave to file mo- However, not decision complain.” single tion for denied. for the proposition of the Court cited question is the result whether fact to be plea bargain question “a tri- presented evidence determined from OPINION DISSENTING TO DENIAL OF 44.02, That is supra. Article implicates af2 APPELLANT’S MOTION FOR it, for mentions each say, none even LEAVE FILE TO MOTION FOR inAnd Craven problems.3 addressed other REHEARING (Tex.Cr.App.1981), opinion of Court on from which the the instant rehearing motion for CLINTON, Judge. quotes we did not look to copiously, case What is ultimately at issue in this cause to the presented “evidence at trial” but impact of the provisions 44.02, of Article parties and nota- assertions of the certain V.A.C.C.P., right of an ap- accused to papers tions made on file. peal a conviction based on plea guilty. Craven, supra, alia, inter this Companions, cause, Court 567,446 numbered noted: court, in the trial and our cause number 65,498, 567,445 below, us, numbered “For its were State sub- informs ‘Re- mitted together originally taining his right and thereafter seek appellate review assigned to the judge same for initial con- court’s action in denying his mo- So, sideration.1 tion single opinion bearing information, see Article both 44.02, cause C.C.P., numbers was Appellant delivered pled guilty before Panel, being there suggestion no the Court’.” inquiry plea bargain 3. Of course the as to a terms identical jury to that found requirement day an Article 26.13 of much more before. vintage, immediately inap- recent it but became emphasis 2. All is mine unless otherwise indi- plicable in a misdemeanor case because cated. longstanding teachings of the Court. State, Rodriguez (Tex.Cr. v. 509 S.W.2d 319 King App.1974); (Tex. 511 32 567,446 1.Similarly, originally No. was filed in Cr.App.1974); Bass v. 4, County Harris Criminal Court Law No. at (Tex.Cr.App.1979); Carter v. was but soon transferred to 3 No. No. (Tex.Cr.App.1980) 691 Miller v. and 567,445 pending latter; from that was (Tex.Cr.App.1980), present varia point progressed the two cases until tandem tions on the Santobello 3, theme — Santobello date, previously December 1979. On that York, 257, New 495, 404 U.S. filed 92 S.Ct. identical motions to overruled were (1971). L.Ed.2d 427 and each trial court in the filed case there was claim earlier plea jury, bargain guilty that a was tried found some sort had not been kept by punishment thirty days prosecution, only which assessed con- and it $500, appear finement and a fine of case, context second statements effect one, the instant reset for follow- the trial court must first decide whether ing day. plea Here, held and bargain. there though, was a there is no prose- the stated question: recommendation of the State informs us there was and punishment cutor trial court assessed that it was followed the trial court. say I yes, said but didn’t conclude me. She “begrudgingly we Accordingly, that, is about the size did. That you honor a bar- the trial court did of it. ...id., gain at 489. derived

The same conclusion should be here. presented from similar circumstances prices? “Q. any other quote you She file her I leave to grant appellant would other said that “A. Yes sir. She conten- motion for to consider the asked dollars and I price fifty parties. tions of the screwing her what was that for you how much can yes, she said FOR ON MOTION OPINION STATE’S go- I wasn’t I told her that spend. IN NO. 65498 REHEARING that much. ing spend did mean “Q. screwing, you the word By DAVIS, Judge. G. TOM sexual intercourse? a conviction for Appeal is taken from “A. Yes sir. 43.- prostitution. V.T.C.A. Penal Sec. “Q. agreed you? She 02(a)(2). finding appellant guilty, After days and a jury punishment assessed at 30 “A. Yes sir.” fine of $500.00. prostitution was convicted for Appellant of the trial 43.02(a)(2), supra, While we reverse for failure under the terms Sec. quash, court to sustain the motion provides: evidence is insuf- lant’s contention that the if he “(a) an offense A commits necessi- the conviction support ficient knowingly: Burks v. question. tates review this our States, 2141, 57 United 437 U.S. S.Ct. public place another in a “(2) solicits L.Ed.2d 1. in sexual conduct engage with him error, ground In her hire.” second evidence to challenges sufficiency of various definitions regard With maintains the support her conviction. She subchapter, prostitution terms within the ‘sexual contact’ prove failed to “the 43.01(1)(3)(4)(5),supra provides: Sec. with the with witness was complaining the subchapter: “In this sexual de- gratify arouse or the intent to means “(1) intercourse’ ‘Deviate sexual sires of another.” genitals of any contact between with the A.F. Rossi testified that he was anus of mouth or and the person one County Sheriff’s vice division of the Harris person. another 2, 1979, ap- met Rossi Office. On October Ap- in Houston. pellant at Models Galore touch- any means contact’ “(3) ‘Sexual the basic fee pellant informed Rossi that of breast, part anus, any or ing of “rap ses- thirty for a minute $35.00 in- of another genitals that she Appellant also told Rossi sion.” the sexual gratify or tent to arouse room. With tips worked off in the back person. any desire of tips with of the regard to his discussion includes deviate “(4) conduct’ ‘Sexual as follows: appellant, Rossi testified contact, and intercourse, sexual sexual twenty- sir. said that for “A. Yes She sexual intercourse. myself do to five dollars I could means “(5) intercourse’ ‘Sexual to me. going what she was to do organ female sex of the penetration that meant? “Q. you Did ask her what organ.” the male sex Yes, “A. I did. solicita- herein The information “Q. reply anything? she if What did hire. for conduct in sexual engage tion to he and testimony established Rossi’s twenty-five “A. I told her that for sexual of forms two appellant discussed to masturbate going she was dollars conduct, namely sexual go contact and sexual term did not to an act or omis “owner” intercourse. The definition of the term sion the defendant. sexual intercourse does in- not statute the defendant maintained Ferguson, clude the intent to or arouse gratify the to denying erred in his motion court of any sexual desire person. charge In its alleging delivery quash an indictment

to the jury, the court used the term sexual he argued The defendant heroin. conduct. type delivery which entitled to notice of When sufficiency reviews rely prove would to evidence, it will consider evidence of the indictment. This Court allegations light in the most jury’s favorable to the denying erred in found that the court verdict. The State thus proved solicitation to stated: motion conduct, engage form of sexual case, while present ‘delivery’ “In the intercourse, sexual not does statutori- defined, the does statutorily statute not ly include the intent to arouse or gratify Rather, single definition. present the sexual desire of any person. We find three and dis- definition allows different the evidence sufficient support appel- establishing ways tinct the accused’s lant’s conviction. This is like the criminal conduct. not of ‘own- ground error, requesting type her first situation of situation, alleged, contends the court er’ for as erred in failing grant above, the specific allegation her motion to was stated the information in this cause. The not affect the defendant’s defense alleges information would pertinent Here, however, 2,1979, ‘delivery’ that on preparations. October did: very heart of offense. Which public

“... in a place knowingly solicit type ‘delivery’ attempt the State will A.F. engage Rossi to with the Defendant critical prove would be in sexual conduct for hire.” ‘delivery’ defense. The is the act lant’s The to quash motion complained that the which constitutes information was to give appel- insufficient criminal conduct. lant notice of the offense with which she is clear even an act though it charged due statutory numerous statutorily or omission a defendant meanings term “sexual conduct.” defined, if that definition See V.T.C.A. Penal 43.01(4). Sec. than one manner means com- more original submission, panel of this Court omission, upon timely act or then mit that concluded that trial court erred in over- partic- request, allege the State must ruling appellant’s motion to it seeks to estab- ular manner or means necessary It is panel’s reexamine the lish.” light conclusion in of our opinions Thom term The “sexual conduct” is statu as v. 621 S.W.2d 158 (Tex.Cr.App.) 43.01(4), torily supra. defined Sec. Ferguson (Tex. provides definition three different methods Cr.App.). Thomas, the defendant filed a methods, of such conduct. One of those quash motion to his theft indictment. The contact, turn sexual can in be in committed complained motion that the terms “owner” Likewise, three different manners. deviate and “without effective vague consent” were intercourse, be sexual can committed in two and indefinite due to the numerous statuto manners. different ry meanings of the terms. This Court conduct” found The of “sexual type no error in the overruling court prove in the instant case was sought motion to to quash because the information ability present to a sought critical to essentially evidentiary. It was in engage to some further held that The solicitation terms “owner” and defense. conduct” was es- vague “effective consent” are form of such “sexual not and in definite with which they statutorily are sence of the offense Finally, statutory defined. The definition charged. Court noted that the was “sexual majority conduct” a dif- If the is that the motion number of correct granted, ferent to have then I quash manners could should been point am also constrained to out committed of prostitution. the offense hold as a of law that Appellant’s Court should matter quash motion to her entitled to Quash” to “Motion to was not sufficient allegation of facts sufficient bar a actual com point out to the trial court the subsequent prosecution for the same of- quash” plaint of the accused. A “motion to fense and give sufficient to her no- precise jurispru is a formalized in our pleading not tice of the offense with which she That term used as sub dence. has been charged. We conclude the court erred indict stitute for motions to set aside the overruling appellant’s motion quash. information, exceptions ment or such Under circumstances information information, substance of an indictment or will be dismissed. See Brasfield v. indict exceptions and for to the form of an (Tex.Cr.App.). information. Articles 28.04 ment or See The State’s motion for is de- 28.05, V.A.C.C.P., and Craven nied. 488 (Tex.Cr.App.1981). filed quash” “motion to here- Appellant’s TEAGUE, J., concurs in result. requested trial court DALLY, J., dissents. charges pending dismiss complaint and McCORMICK, against her. relief would be authoriz- Judge, dissenting. Such ed to set aside only pursuant a motion (Tex. Thomas v. on the that it was not information basis Cr.App.1981), we held that terms which (Article a valid 27.- complaint based specifically defined in the statutes Y.A.C.C.P.) or an 03(1), pursuant excep- which do not go to an act omission of tion to the substance of the information defendant specifically need not be more (Article 27.08, V.A.C.C.P.), these are since pled indictment, in an and an is indictment which, grant- quash” “motions to if only subject not to a motion to in such ed, discharge authorize the of the accused. case. Since follow majority does not 28.04, supra. See Article Thomas, the rule announced in I must dis- sufficient, complaint The this cause sent. and a motion to set aside the information The information in the instant case al- complaint the basis of an invalid does leged that appellant unlawfully: did realistically not Nor can apply. it be ar- in public place solicit knowingly gued subject to an information engage A.F. Rossi to with the Defendant to any to the exception pursuant substance in sexual for hire.” conduct of the four Arti- enumerated subsections majority argued appel- overlooks the fact that cle 27.08. If it could be was an to the form charged lant was not with a consummated lant’s motion information, I would follow the then prostitution. act of The act here teachings su- expressed Craven gravamen and which of the offense pra, hold that the record before us term “solicit” was not the solicitation. The rights prejudice would not show challenged in her motion 21.19, V.A.C.C.P. appellant. See Article was to the solicitation Additionally, commit some act in future. Since reasons, vigorously these I must dis- For allegedly per- sexual conduct was sent. future, not it is formed DAVIS, J., joins in this dissent. not W.C. in this casé and need conduct element compare alleged. be further See and (1982).

Cardenas holding in Thomas dictates that

Our granted. motion for

Case Details

Case Name: Kass v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 17, 1981

Citation: 642 S.W.2d 463

Docket Number: 65365, 65498

Court Abbreviation: Tex. Crim. App.