KFOURI v. StateKFOURI v. State
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- Before:
- Boyce
Aрpellant Andrew Fares Kfouri challenges the denial of his motion to quash an indictment. After the trial court denied appellant’s motion, appellant pleaded “no cоntest” and the trial court assessed punishment as confinement for five years. We affirm.
Background
Appellant was indicted under Texas Transportation Code section 545.420 for the offense оf causing the death of a person by intentionally and knowingly participating in a drag race on July 12, 2007. The indictment alleges as follows:
... Andrew Fares Kfouri hereafter styled the Defendаnt, heretofore on or about June 18, 2007, did then and there unlawfully while operating a motor vehicle on a highway, intentionally and ‘knowingly participate in a drag race, to — wit, the оperation- of two or more vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other, and as a result, caused the death of Daniel Reiter hereafter called the Complainant, by operating his motor vehicle at an excessive speed and by failing to maintain a single lane of traffic thereby striking the vehicle he was racing against which caused the vehicle to strike a vehicle occupied by the Complainant.
Appellаnt filed a Motion to Quash Indictment on October 2, 2008 alleging that section 545.420 is unconstitutionally vague. The trial court orally denied appellant’s motion in a hearing on October 8, 2008. Appellant subsequently pleaded “no contest” to the indictment and the trial court assessed punishment as confinement for five years. Appellant appeals the trial cоurt’s denial of his motion to quash.
Analysis
We review the trial court’s denial of a motion to quash de novo. Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App.2007); State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004). A defendant must be given notice before trial of the “nature and cause” of the accusation against him. See U.S. CONST, amend. VI; TEX. CONST, art. I, § 19. The notice must be givеn with sufficient clarity and detail to enable the defendant to anticipate the State’s evidence and prepare a proper defense to it. See U.S. CONST, amend. VI; TEX. CONST, art. I, § 19; Garcia v. State, 981 S.W.2d 683, 685 (Tex.Crim.App.1998) (en banc).
An indictment must allegе all the facts and circumstances necessary to establish all material elements of the offense charged in plain and intelligible language. Garcia, 981 S.W.2d at 685; Bynum v. State, 767 S.W.2d 769, 779 (Tex.Crim.App.1989) (en banc). An indictmеnt must allege on its face facts necessary to (1) show that an offense was committed, (2) bar a subsequent prosecution for the same offense, and (3) give defendant notice of precisely what offense he is charged with committing. Terry v. State, 471 S.W.2d 848, 852 (Tex.Crim.App.1971). An indictment tracking the statutory language will satisfy constitutional and statutory requirements; the State need not allege facts that are merely evidentiary in nature. State v. Mays, 967 S.W.2d 404, 406 (Tex.Crim.App.1998) (en banc); Moreno v. State, 721 S.W.2d 295, 300 (Tex.Crim.App.1986) (en banc).
An individual commits an offense if he “participate^] in any manner in ... a drag race or acceleration contest[.]”
Appellant challenges the indictment on grounds that
A statute is void for vagueness if it (1) fails to give a person of ordinary intelligence fair notice of the conduct prohibited, or (2) is so indefinite that it encourages arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); Clark v. State, 665 S.W.2d 476, 482 (Tex.Crim.App.1984) (en banc). All penal laws must provide fair notice to a person of ordinary intelligence before making their activity criminal. State v. Fry, 867 S.W.2d 398, 401 (Tex.App.-Houston [14th Dist.] 1993, no pet.). A criminаl statute need not be mathematically precise; it need only give fair warning in light of common understanding and practices. Id. A statute is unconstitutionally vague only when no core оf prohibited activity is defined. Id. A statute also must be sufficiently definite to avoid the possibility of arbitrary and erratic arrests and convictions. Id.
In determining whether a statute is unconstitutionally vague, we interpret the statute in accordance with the plain meaning of its language unless the language is ambiguous or the plain meaning leads to an absurd result.
Sanchez v. State,
995 S.W.2d 677, 683 (Tex.Crim.App.1999). “Words and phrases shall be read in context and construed according to the rules of grammar and usage.” Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005);
see
When a vagueness challenge involves First Amendment concerns, the statute may be held facially invalid even though it may not be unconstitutional as applied to the appellant’s conduct.
Long v. State,
931 S.W.2d 285, 288 (Tex.Crim. App.1996) (en banc);
Coronado v. State,
148 S.W.3d 607, 608 (Tex.App.-Houston [14th Dist.] 2004, no pet.). But when (as here) no First Amendment rights are involved, we need only examine the statute to determine whether it is impermissibly vague as applied to the appellant’s specific conduct.
Bynum,
767 S.W.2d at 773-74;
Coronado,
148 S.W.3d at 608. Appellant does not argue that this case involves First Amendment concerns. Accordingly, appellant bears the burden to establish that
Appellant argues that
Appellant first argues that section 545.420is unclear because it cоuld apply to “mere spectators.” The indictment specifically alleges that appellant was operating a motor vehicle while participating in a drag race.
Appellant next argues that section 545.420is unclear because it could apply “to motor vehicles or to any type of vehicle.” The indiсtment alleges that appellant was “operating a motor vehicle.”
Appellant also argues that section 545.420is unclear because it could apply to all “traffic areas” including sidewalks, alleys, and shoulders. The indictment alleges that appellant was drag racing on a “highway.”
Lastly, appellant argues that section 545.420does not establish a standard for law enforcement personnel to employ when determining whether two cars are in
We conclude that
Conclusion
We affirm the trial court’s judgment.
Notes
. “Roadway” is defined as “the portion of a highway, other than the berm or shoulder, that is improved, designed, or ordinarily used for vehicular travel. If а highway includes at least two separate roadways, the term applies to each roadway separately.”
“Shoulder” is defined as “the portion of a highway that is: (A) adjacent to the roadway; (B) designed or ordinarily used for parking; (C) distinguished from the roadway by different design, construction, or marking; and (D) not intended for normal vehicular travel.”