State v. Edmond

I know that our courts al- here have

ways interest, your taken account best

your family’s your best interest and chil- interest, specifically, any

dren’s best involving

all cases violent behavior. you your

I do want to thank civic

duty making your intentions to this you

Court as far as how felt it. about

Obviously, always keep those

mind. you doing

Thank a tremendous courageous duty civic as well as

your responsibility as citizens of this

State. going

I’m to at this time continue with my

the rest of docket. And it was nice

having you here.

n n n n n n Texas, Appellant,

The STATE of

Tony EDMOND, Appellee.

No. 0958-95. Texas,

Court of Criminal

En Banc.

2,Oct. Worth, Ware, for Logan ap- Fort

Michael pellant. Horn, Jeffrey L. Van Asst. Attor- State’s Austin, Paul, Atty.,

ney, for Matthew State. FOR

OPINION ON STATE’S PETITION DISCRETIONARY REVIEW MANSFIELD, Judge. 1994, Edmond, 1, appellee, Tony June

On charged by indictment with the offense was alleged to have oc oppression, of official employed police curred while he City Falls.1 The officer of Wichita paragraphs, each indictment contained four alleging committing means of alternative quashed The trial court all four the offense. paragraphs the indictment. The State appealed, and the Second Court of all affirmed trial court’s order as to four Edmond, paragraphs. State v. (Tex.App. Worth We - Fort granted petition discretionary the State’s review, pursuant Appellate Rule Texas (a) 200(c)(2), grounds:2 two Procedure on right, pow- Appellee privilege, enjoyment or 1. under Texas Penal Code cise er, 39.02, part: implicitly. which read in relevant immunity, explicitly either or (a) acting public A servant under color of his § 39.02 been recodified as Penal Code has employment office or commits an offense if he: 1.01, Leg., ch. 39.03 Acts 73rd (1) intentionally subjects another mis- Sept. eff. 1994. arrest, detention, search, or to sei- treatment assessment, zure, dispossession, lien corresponds ground The first for review unlawful; knows original paragraph two indictment. The para- ground corresponds with second for review (3) intentionally subjects another to sexual original graph four indictment. harassment. S' * * (c) section, In this “sexual harassment” means advances, requests sexual for sexu- unwelcome physical al verbal other nature, a sexual submission person's made a term or condition of a exer- another, appeals ing” whether the court erred more. recog- when and no oppression nizing held that an indictment for official that courts of had ruled unfa- specify vorably interpretation, must act of to its actually unlawful, two paragraph interlineating “mistreatment” was amended (b) particular culpable whether the appel- erred in mental state which holding an lee oppres- that indictment for official insisted was essential: that the defendant engaged sion must describe or define he “unwelcome sex- in mistreatment “knew was un- not, “request however, ual advances” lawful.” sexual fa- The State amend judgment allege vors.” will the appel- We affirm the indictment to second of ground, perceived court of to the lee’s appellee’s first deficiencies: that ground. actually reverse as to the second mistreatment was unlawful. At the

hearing appellee’s quash, on motion to I. contended, alternatively, that any resulting amendment cured defect from Paragraph two of the indictment missing element. that appellee did: intentionally subject H.M. Nielson to mis In response argument, State’s ap- to the treatment, preventing to wit: H.M. Niel pellee knowledge insisted that of unlawful driving son from a motor by deny vehicle every referred act ing H.M. Nielson access use to [sic] 39.02(a)(1), including § Ap- mistreatment. care, custody, motor vehicle under the pellee also that contended State could Nielson, and control of the said H.M. by not paragraph interlineating amend two acting the defendant was then and there proce- an essential element because such a under employ color of his office right and/or dure would his circumvent be indict- servant, public namely, ment as a police a grand jury. ed Also of interest Texas, Falls, City officer for Wichita admission, during appellee’s hearing [emphasis added] that, if proper, amendment was properly allege a the indictment crime. would response paragraph, In appellee to this filed importance is that ap- The this admission quash argued motion to in which he that pellee apparently his contention abandoned paragraph two of the indictment failed to allege that had also to that allege an it did offense because not aver two unlawful, actually mistreatment the sec- was necessary Oppression” elements “Official deficiency ond addressed in his appellee writ- 39.02(a)(1). § under See Smith v. quash. ten motion to (Tex.Crim.App.1978). appellee missing first element claimed was event, granted In appel- the trial court allegation way was an he acted in a that “that quash. explic- lee’s motion The trial court unlawful,” particular culpa- [knew was] itly ruled that the State’s amendment was 39.02(a)(1). ble mental state found improper it in this context because circum- second appellee element claimed the indict- jury appellee’s grand indict- right vented allegation ment lacked was an that the mis- improper, ment. was Since amendment actually treatment was unlawful.3 found, trial court indictment failed to During hearing appellee’s allege on allege motion to it did not offense because quash, specific appellee conduct was unlawful. State contended knew his ruled, culpable explicitly mental state found in The trial court at the never 39.02(a)(1) knowledge hearing, allege had also to defendant’s that an indictment —the actually that his conduct was unlawful. modified mistreatment unlawful — “arrest, search, seizure, detention, disposses- court’s written order in the trial sion, indictment, assessment, Hence, quashing adopted lien ...” the rea- public acting soning servant color appellee’s under of his office would set out in written Motion intentionally Quash. reasoning violate this This included “mistreat- Appellee distinguishing allegation actually conduct is unlawful. "knowledge illegality” allegation from an infirmity favored an argument that the indictment was defective tial constitutional “mistreat- interpretation which narrowed it failed to that his conduct because knowledge.” utilizing “unlawful ment” actually unlawful. factor, ap- the third court Under Appeals, its brief to the Second Court “just” neither nor peals held that would be the State contended that trial erred “mistreatment” “reasonable” criminalize interpretation only appropriate otherwise not unlawful: 39.02(a)(1) supported its contention obviously could include ev- “Mistreatment” modify “knowledge illegality” did not “mis traffic erything during from rudeness argued, it was treatment.” uncomfortably stop applying handcuffs “knowledge either criminal viola- tight. Are these become illegality” or mistreatment. actual unlawful punishable by up year jail tions to one Importantly, challenge the the State did not and a fine? prohibit trial court’s decision to the amendm Edmond, at 861. State v. appeals, appellee In ent.4 the court of factor, appeals of cited two cases from the Thirteenth Court the court of Under the fourth Appeals way that court held that “knowl there be no feasible found that would edge illegality” modify fairly a of did “mistreatment.” enforce statute which criminalized (Tex. potential Zuniga v. because the See 664 S.W.2d 366 “lawful mistreatment” App. Corpus unequal pet.); Christi no Prevo for abuse and enforcement - reasons, great. For (Tex.App. Corpus statute was these State - appeals court of held that the State’s inter- pet.ref'd). Appellee Christi ar also 39.02(a)(1) § gued sup pretation Act of was incorrect. that Code Construction ported interpretation. his Unfortunately, apparent it is not whether that Appeals Court of found an Second Appeals The of affirmed the Second Court alleging a violation of indictment ruling, rejecting trial ar- court’s the State’s 39.02(a)(1) § both a defen- must that guments. appellate began its The his unlawful and that dant knew conduct was opinion gram- with an no observation that actually the conduct was unlawful. prevented “knowledge illegali- matical rule analysis Appeals concluded its Court ty” modifying from “mistreatment.” With point by stating: this of error “For rea- 39.02(a)(1) observation, § this was somewhat above, para- we .sons stated conclude that ambiguous. The court of resolved graph two of the indictment defective.” ambiguity by invoking the Code Con- it is clear that the Court of While Act, § struction Tex.Gov’t.Code 311.021: require allegation ap- that would least statute, enacting presumed a it is that: unlawful, his conduct was its pellee knew (1) compliance with the constitutions reasoning whether does not illustrate this state and the United is intend- States also that State must ed; actually unlawful. (2) to be the entire statute intended Court, again In its to this brief State effective; interpreta- argues grammatical best (3) just is intend- and reasonable result 39.02(a)(1) § penal code is that tion ed; illegality” modify “knowledge of does not (4) result execution is intend- feasible of begins argument It “mistreatment.” ed. citing English grammati- a “well-established factor, words, phrases, principle” qualifying Under the first cal applied are words or which criminalized and clauses to be declared a statute immediately preceding, are not phrases alone would be unconstitu- “mistreatment” including poten- extending to and tionally vague to be construed as and overbroad. Such Therefore, proper, paragraph two of and that the issue of whether appropriate allegation appellee in this instance is amendment was knew contain assume, will for the not before this Court. We was unlawful. his conduct purpose appeal, im- that amendment was this observed, 39.02(a)(1) § others remote. un- being more See 82 C.J.S. Statutes saved from 334; § 2A constitutionally vague. SUTHERLAND STATUTORY (4th CONSTRUCTION 47.33 ed. “rule,” “knowledge illegality” Under A. apply would of words series after Our initial task is to determine disjunctive 39.02(a)(1), “or” in and not phrase whether the un “that knows is which is before “mistreatment” located lawful” modifies “mistreatment.” Ordinari “or.” ly, statute, interpreting give ef when we Legisla- The State contends also that plain meaning' fect to the of the statute. sensibly ture could treat “mistreatment” in a Boykin v. State 818 S.W.2d manner different from other forms of Crim.App.1991). if a statute is 39.02(a)(1). conduct delineated in ambiguous, or interpretation a literal “mistreatment,” argues unlike the result, would to an lead “absurd” we are subsection, other conduct in the forms of constitutionally employ authorized extra- contains of wrongful- an inherent element interpretation. textual modes One Thus, “arrest, detention, ness. unlike interpretive those extratextual modes is the search, seizure, assessment, dispossession, presumption constitutionality. Thus lien,” each of which no has overtone of held, when interpreting legislative have

wrongfulness, has “mistreatment” no need to reasonably subject which to enactment is by “knowledge illegality.” be modified of In- varying interpretations, it is this deed, it the State insists that would have duty Court’s to the a construe statute in been Legislature reasonable the to crimi- which legislative manner in assume nalize all forms of intentional mistreatment intent to enact a constitutional statute. by public acting servant under color of his Faulk v. employment. office or Crim.App.1980). Supreme As the Court The also it furnishes what deems a succinctly observed United States ex rel. 39.02(a)(1) § more sensible illustration of had Attorney General v. Delaware & Hudson Legislature “knowledge the intended of ille- Co., 213 U.S. 29 S.Ct. 53 L.Ed. 836 gality” to to extend “mistreatment:” (1909): If Legislature the had the enacted statute “[Wjhere susceptible a statute is of two manner, in such a it have read “... would constructions, by grave which one of and subject intentionally to another mistreat- questions doubtful constitutional arise and ment, arrest, detention, search, seizure, questions the other of which such are dispossession, assessment, or lien that he avoided, duty is adopt court’s] the [the knows is unlawful....” latter.” Finally, the Court to State refers this the Faulk, Indeed, logic supra. Such was the Act, provides pre- Code Construction 311.021(1) § the Code Act Construction also sumption parts all in- are supports approach. this tended to be effective. See Tex.Gov’t Code 39.02(a)(1) Hence, susceptible to if is § 311.021. The State asserts the inter- interpretation, more than one rational and pretation by renders interpretations where one of those raises ser- meaningless Legislature’s use of the dis- concerns, this is ious constitutional Court junctive clauses describe different forms of obliged Legislature in- to assume that subject provisions. to its interpretation tended the secures the Court, appellee In his to this also brief application. statute’s constitutional emphasizes Code Act in Construction 39.02(a)(1) conjunction ambiguous it reasoning of the court is Section addition, appeals. discern, appellee again impossible cites based text Prevo, itself, Zuniga supra, Legislature and in which the Thir- whether the intended that “knowledge illegality” apply teenth Court of found “knowl- “mistreat- edge disjunctive illegality” modify “mistreatment.” ment.” State focuses on the separates interpretation, the Thirteenth Court “or” which “mistreatment” from Such as “arrest, a clause detention, search, seizure, disposses- are followed eral words assessment, and other sion, applicable much the first little or lien.” last, the should be as to the clause gleaned placement words can be from the applicable disjunctive to all. 82 C.J.S. Stat might read as indicate the “or.” [emphasis added] utes Legislature’s comprehension that “mistreat- from the forms of ment” was different other Thus, “slight” even a indication if there is 39.02(a)(1), nothing conduct in more. Legislature “unlawful intended contended, supra, As the State “mistreat- “mistreatment,” knowledge” to extend to detention, “arrest, ment” dissimilar application. has doctrine no then the seizure, search, assessment, or dispossession, earlier, prior case we stated both As Legislature may in- lien.” have Act Construction advance law and the Code fact, acknowledge tended this and not Legislature pre proposition that the be modi- indicate that “mistreatment” not are intend that its enactments sumed to by “knowledge illegality” This inter- fied unconstitu constitutional. If would be pretation support is rational would alone, tional to criminalize “mistreatment” position court of both the saving interpretation, we there is appellee. Legislature will intended assume hand, disjunctive the other “or” On interpretation than constitutional rather indicate, insists, might intent interpretation. The unconstitutional from narrow- extricate “mistreatment” interpretive argument falls its own ing particular culpable men- influence presume intent legislative terms because we Yet, if tal state he knows is unlawful.” “that Such intent enact constitutional statutes. Legislature meaning, had intended Leg provides “slight indication” of the might placed well have a comma after “mis- “knowledge ille islature’s resolution that Indeed, emphasize its intent. treatment” “mistreatment,” if gality” such extend correct, argument if the State’s were then being interpretation the statute from saves mental state “that knows is unlawful” question unconstitutional. declared modify might only “lien” both because it too criminalizing inten then becomes whether separated objects by is from the other be uncon alone would tional mistreatment “or,” and there is no comma after stitutional. “lien.” Ultimately, interpretation de- process clause of Under the due pends upon the “last ante- doctrine Amendment, is penal a statute Fourteenth cedent,” suggests that or which relative vagueness it fails to define void qualifying modify clauses the words in manner sufficient criminal offense phrases immediately proceeding, and are their con ordinary people whether inform extending including be construed as Lawson, 461 is Kolender v. prohibited. duct only gram- others more remote. This is the 1855, 1858, 352, 357, 75 103 S.Ct. U.S. support “rule” in matical the State advances (1983); v. 903 Estates L.Ed.2d Hoffman argument. of its Even if this were to Court Estates, Inc., 455 U.S. Flipside, Hoffman adopt jurisprudence into (1982); this doctrine our 1186, 489, 71 362 102 S.Ct. L.Ed.2d statutory interpretation, inadequate 1242, 566, Goguen, 415 94 S.Ct. v. U.S. Smith deficiency context. concerns a ma- (1974). However, ratio 39 L.Ed.2d 605 jor exception last to the doctrine of the ante- be vagueness doctrine extends nale for the exception fol- cedent. That can be stated as warning. de yond A second rationale fair lows: legislature from the notion that a scends provide guidelines govern must minimal of the “last antecedent” will

[T]he doctrine guidance, a such to a law enforcement. Without not be adhered to where extension might susceptible to arbi clearly required penal statute be more remote antecedent is discriminatory As trary enforcement. Slight act. a consideration the entire observed Kolender legislative Supreme intent Court indication so extend Lawson, supra: term is Where sev- the relative sufficient. 126 addition, “annoy” legislature provide quately, fails to such or “alarm.” In

Where we guidelines, may minimal “a criminal unconstitutionally vague statute held statute sweep permit failing a standardless allows against [that] to define whose sensibilities juries pur- policemen, prosecutors, and judge annoy- whether personal predilections.” [citing their sue alarming. ing Thus the harassment stat- supra]. v. Goguen, Smith ute unconstitutional because it failed to provide a law en- determinative standard to held have statute is not We forcement authorities. unconstitutionally vague merely because the specifically words or terms used are not de We fail see a distinction between a Bynum fined. annoy statute criminalizes intentional (Tex.Crim.App.1989); Engelking v. and a statute which ance criminalizes inten (Tex.Crim.App.1988). may tional mistreatment. Conduct which be if meaning provided by of a statute is not may deemed “mistreatment” some not be terminology syntax, its and if reasonable impor viewed as such others. And most people application could differ as to tant, simply a statute which declares that circumstance, particular po then statute mistreatment is criminal must indicate the tentially vagueness void for under the Four standard which the determination de Kolender, supra. teenth Amendment. See e.g., judge, pends, sensitivity Indeed, we have also held that a criminal officer, objective jury, arresting or an vague applied; statute must be as insuf In the of such standard. absence a determi may hypothetical ficient that exist facts there standard, officers, police prosecutors, native ambiguity applica which demonstrate an given and triers of fact are discre unfettered tion. Corwin law, apply creating danger tion (Tex.Crim.App.1993). arbitrary discriminatory enforcement.5 very This Court has declared similar unconstitutionally vague. May perceive grave constitu (Tex.Crim.App. interpreta tional difficulties with the State’s 42.07 Section of the Texas Penal 39.02(a)(1). tion Such concerns Code, prior it was to amendment in Legislature eAiideneethat the intended criminalized certain varieties of “harass modify “knowledge illegality” “mistreat read, ment.” The harassment statute in rel Indeed, concerns ment.” these constitutional part: evant that of con also establish the State’s rule (a) person A in- commits an offense doctrine of the “last anteced struction—the tentionally: application by no its terms. ent”—has OAvn (1) by telephone in communicates or If the rule of construction has no obscene, Amigar, writing profane, in or compelling is no application, then there language indecent in a or coarse 39.02(a)(1) interpret § grammatical basis to by offensive manner and this action in- suggests. light in In the manner the State knowingly, recklessly or an- tentionally, difficulties, adopt to the these we decline noys recipient; or alarms intentional mistreat State’s contention that is, itself, Rather, adopt that We held this statute was unconstitution- ment criminal. define, interpretation ally vague it ade- because failed other rational overbreadth, Vagueness, requires con- that a defendant’s conduct falls within "core” unlike statute, proscribed by prove defendant the nebulous nature of a crimi duct a criminal then applied particular that as to the statute is However, defendant. Id. nal statute constitutional given defendant’s possess Vagueness does the breadth of the word "mis- conduct. stand treatment,” exception ing fall found in the overbreadth doctrine. most factual scenarios within margin. may marginal differently, the “[t]hat cases in Stated term “mistreat- there vague it is so that we cannot determine with is difficult determine side of ment” particular appellee’s verbal on certitude whether line which a fact situation falls sufficient language ambig complainant within no sufficient to hold too "mistreatment” of the falls reason Thus, meaning "core” uous define a criminal defense.” Corwin of “mistreatment.” 1993). 39.02(a)(1) vague applied (Tex.Crim.App. appellee’s § as may periphery, particular if a Whatever doubt exist at the conduct. Otherwise, 39.02(a)(1) a “mistake “knowledge defendant’s illegality” unlawful. that illegality act of his own as to the interpreta- law” “mistreatment.” This modifies ex liability none before create where difficulty would tion averts constitutional Hence, by alleging knowl unlawful isted. penal defined in the the term “unlawful” is alleges alone, properly edge an indictment meaning both clarifies the code. “Unlawful” actually unlaw conduct was relevant law provides enforce- “mistreatment” 520, 523 ful. Prevo v. objective see standard authorities with an ment (Tex.App.-Corpus Christi “mistreat- determine whether ment” criminal. Generally, an indictment which in Tex- “unlawful” is defined term proscribing statutory language tracks the 1.07(a)(48): Penal Code in charge a crim is sufficient to certain conduct or means criminal or tortious “Unlawful” bar, In inal the ease State offense. be criminal and includes what would both knowledge, only have unlawful need amounting tortious but for defense not tracking statute. justification privilege. appellee’s alleged that not have State need Therefore, actually unlawful. conduct was Thus, under defendant to the extent the Court of erred 39.02(a)(1) must mistreat another and must appellee’s that his criminal or also know conduct is actually unlawful. conduct was interpretation This avoids constitu- tortious. potential tional difficulties because defen- subject arbitrary predi-

dants are not to the II. regarding law lection of enforcement ground re In the State’s second “mistreatment”; meaning “mistreat- view, appeals erred it contends the court which is criminal or tortious is con- ment” affirming trial court’s decision provides an demned. Such a standard also indictment. quash paragraph four of the criterion, objective bypassing our concerns appellate Specifically, disputes the the. State May, supra, that a criminal statute must ruling affirmation of the trial court’s court’s “sensibility” standard. had further describe State “re sexual advances” and define “unwelcome B. indictment. quest for favors” sexual Having held that the court 39.02(a)(2)6 criminalizes intentional Section holding particular culpable not err in that the public of another sexual harassment 39.02(a)(1) §in mental state found modifies acting office. under color his Sub servant “mistreatment,” we turn to now the State’s 39.02(e) “sexual harassment”: section defines contention that erred (e) section, harassment” “sexual when held that must also advances, request sexual means unwelcome actually conduct was unlaw- physi- sexual or other verbal noted, ambigui- supra, ful. As there is some nature, of submission a sexual cal conduct ty regard reasoning in the this a term or condition of which is made Yet, appeals of the court of court unclear. enjoyment or of person’s exercise fairly interpreted requiring appeals can immunity, right, privilege, power, or either both that con- the State explicitly implicitly. actually appellee unlawful and duct was conduct was unlawful. knew his Hence, § “sexual harass- criminalizes 39.02 the State’s contention. will address “sexual harassment.” and then defines ment” paragraph of its indictment In the fourth order to commit an offense under In alleged appellee did: 39.02(a)(1), § “know” that a defendant must intentionally subject H.M. there “mistreatment” then and his conduct which constitutes by making sexual harassment In for defendant Nielson to is unlawful. order making fact, this, be, sexual advances must in unwelcome know mistreatment and/or 39.03(a)(2) September § in 6. This statute was recodified as request proper for sexual submission nied notice of the offense for which expressly implicitly charged. which was a he is and made term and condition of the exercise agreed appellee Court of enjoyment by the said H.M. of a Nielson and affirmed the decision the trial court. right privilege, right to wit: and/ First, the court of concluded that the privilege to obtain access use of and/or 39.02(c) provided § definition in was not com care, custody motor vehicle under the pletely descriptive constituting of the act Nielson_ and control of the said H.M. offense so as to inform the accused of the State, charge. nature of the See Haecker v. Thus, the utilized statutory State defini- (Tex.Crim.[Panel 1978). 571 S.W.2d 920 Op.] indictment, tion “sexual in harassment” Second, held that basically tracking language 39.02(c) §in susceptible terms were “an 39.02(a)(3) (c). § almost list possible meanings,” endless During pretrial proceedings, appellee chal- frustrating proper appellee. notice to See lenged paragraph this of the indictment. Ferguson 622 S.W.2d 39.02(a)(3) Appellee § contended that crimi- 1981). Crim.App. Op.] [Panel such, nalized an act or omission. As appellee is no There indict assertion claimed the indictment to allege had charge ment failed to un a criminal offense alleged manner or means of his criminal acts 39.02(c). Rather, der presented the issue describing further defining “unwelcome appellee is whether was entitled to further “request sexual advances” or for sexual fa- adequately notice so as prepare for his Appellee vors.” that it insuf- contended was In regard, defense. long we have held ficient, notice, purpose to use charging that a instrument tracks the statutory means and manner of “sexual language possesses of a criminal suf response, harassment.” con- State specificity provide ficient defendant with paragraph tended that four was sufficient notice most offense circum provide notice, given meaning the common Bynum stances. statutory the words definition. (Tex.Crim.App.1989); DeVaughn adopted appellee’s argu- The trial court (Tex.Crim.App. quashed ment and paragraph Specifi- four. cally, compelled the trial court State appeals’ The court of reliance Olurebi beyond go statutory definition of “sexual (Tex.Crim.App.1994), harassment,” to further the manner is erroneous. In Olurebi this Court held and means of “unwelcome sexual advances” tracking statutory an indictment lan- “request sexual favors.” 32.31(b)(2) guage found in Penal Code In its appeals, brief to the insufficient to notice because there that, argued if a statute defines alter- pos- were two methods which one could committing native manners and means of sess “fictitious credit card.” The State’s offense, the State is not to further because, merely indictment was deficient statutory describe define the alternative tracking statutory pro- definitions. argued The State 32.31(b)(1), the indictment did not contain vides sufficient notice to a defendant notify specificity sufficient the defendant alleges definitions of several as which method commission the defen- rely it will on. accomplished. dant to have appeals, ap- Indeed, In his brief to Olurebi this was an extension pellee State, contended the terms “unwel- holding Court’s in Geter v. 779 S.W.2d “requests come sexual advances” In (Tex.Crim.App.1989). 405 this con- susceptible text, sexual favors” were to countless we held where a crimi- have often Hence, interpretations. possesses statutorily-defined, al- the terms must nal statute offense, in alleging committing further clarified an indictment ternative methods timely “sexual clar- upon request, harassment.” Without further then is defendant ification, appellee allegation statutory asserted would be de- entitled to an of which

129 spe- possess did the statute prove. v. “torture.” Nor intends to Geter method the State State, one to “torture.” State, statutory methods for supra; v. 747 S.W.2d cific Garcia context, merely alleging In (Tex.Crim.App.1988). Olure In held that 380-81 this we bi, tracking possess “ficti ways identified we two “tortured” defendant animal — we, 32.31(b)(1); not tious credit card” under statute —did therefore, required plead State to to the defendant. sufficient notice prove. intended bar, underly- However, in the case at bar, complied In case the State possess ing specific statu- penal statute does conjunctively requirement when it the Geter tory commit “sexual for one to methods statutory alleged of the three acts two among harassment,” and the State elected constituting offense omissions statutory in indictment. alternatives its those 39.02(c). Hence, in under the rule under Haecker, ap- Thus, the defendant unlike Geter, appellee proper supra, received The al- pellee provided notice: State and was to no more. level of notice entitled leged appellee made unwelcome sexual appeals’ upon reliance Olurebi The court requests for sexual advances and/or here, because, did was erroneous a term to which was made submission it intended allege which manner means enjoyment person’s of a exercise or condition appellee. proof against utilize in its case right. of a Haecker is distinct from the upon appeals The court of also relied Cole at bar. State, (Tex.Crim.App. 124

man 643 S.W.2d Finally, appeals court of cites Cruise 1982). Coleman, In held that an indict (Tex.Crim.App. [Panel 403 statutory language which tracked the ment 1979). Op.] The in Cruise was defendant provided for theft notice to the insufficient robbery caus alleged have committed defendant. Notice was deficient because the “bodily complainant. Like ing injury” to the alleged simply that the defendant indictment by the court of upon the other cases relied al appropriate” property, ... without “did underly appeals, was a case in which the leging appropriation. the manner or means not the manner ing did address penal statute statutory Importantly, specified 31.02 causing “bodily injury.” We or means of accomplish manner or means one would compelled that the State held yet “appropriate,” did not em chose cause the method defendant statutory ploy means or manners. these injury complainant. to the application has no the case at Coleman bar, Again, in the case at because, here, bar more than State did “sexually ha- appellee more than “sexually appeEee allege that harassed” the complainant. al- The State also rassed” the complainant. The State also how the leged of “sexual method defendant committed the offense “sexual harassment,” statutory specific alter- via the by alleging harassment” its indictment 39.02(c). distinguished §in Cruise natives statutory maimer or of conduct. Un- means at bar. from case terms, applica- der its would find Coleman among tion if the State failed to elect case proper of this resolution indictment. methods holding in Thom Court’s originates with this erroneously re- 161 S.W.2d Coleman, supra. on rehearing): lied on (Tex.Crim.App.1981)(opinion quash general is that a motion upon rule also relied The court (Tex.Crim. sought are the facts will be allowed Haecker give unless notice. Op.] Again, essential reliance App. [Panel essential, need the indictment it concerned fact misplaced Haecker plead on the State. relied specification as evidence only the need for further (Tex.Crim. underlying pe Smith v. by the matter not addressed State, 401 S.W.2d Haecker, App.1973); Cameron v. the indictment al nal statute. Moreover, when (Tex.Crim.App.1966). ani “tortured” an leged that the defendant statutes, in it need defined of a term is and not a manner means mal BAIRD, alleged not in Judge, concurring part be further the indictment. and Corporation American dissenting part Plant Food on State’s Petition for (Tex.Crim.App. Discretionary S.W.2d Review. (Tex. 1974); May v. 618 S.W.2d 333 I concur the resolution of the first Crim.App.1981). ground for review but dissent to the resolu- ground tion of the second for review. when statute defines the manner or offense, means of committing an indict- I. ment based that need not Only anything paragraph the fourth of the instant beyond that definition. opinion. indictment relevant to this That Here, statutory State utilized the defi alleged paragraph appellee: that harassment,” electing nition of “sexual intentionally ... did then and there sub- among the alternative manner or ject [the victim] sexual harassment means. The State was to do no making unwelcome sexual advances and/or appellee’s theory, more. Under making request for sexual submis- to allege “request had more than a for sexual sion expressly implicitly to which was and Presumably, favors.” the State had also of made a term and condition the exercise present allegation in its re indictment enjoyment by the said of a [victim] garding appellee actually what said. Such right privilege, right to-wit: and/or requirement improperly place upon would privilege obtain access and use of and/or pleading the State the burden facts care, custody the motor vehicle under the essentially evidentiary are in nature. See victim], said [the control and the Bynum v. acting defendant was then there under Crim.App.1989). employment the color of his office and/or servant, public as namely police officer of appeals erroneously affirmed Falls, City for the Texas. Wichita trial quash court’s paragraph decision four of the It indictment. was sufficient that Appellee paragraph should contended among the State elect the alternative meth- quashed because it faded to notice prove ods it intended to at trial. of the manner and of the means unlawful conduct to further describe and/or AFFIRM part judgment We or define “unwelcome sexual advances” the court relates to trial “request judge for sexual favors.” The trial quashing court’s paragraph two of this granted appellee’s quashed motion and indictment, part and we REVERSE paragraph fourth of the indictment. The judgment of appealed Appeals and the Court of quashing relates to the trial para- court’s Edmond, affirmed. State v. 903 S.W.2d 856 indictment, graph four of the RE- and we (Tex.App Worth . -Fort MAND the cause to the trial court for fur- The Court of held: proceedings ther opinion. consistent with this

Because the terms “unwelcome sexual “requests advances” and for sexual favors” CLINTON, J., concurs in the result. fairly notify do adequately not Edmond specific that form act acts OVERSTREET, Judge, dissents with the against basis of the accusation which he following note: himself, must defend and because those majority I dissent to the I opinion because terms used in the bar offense, Appeals correctly believe the prosecution Court decid- later for the same disposition all proper granted ed issues. The is to correctly trial court Edmond’s mo- acknowledge improvi- quash. matter tion to dently granted. Id., 903 at 862. majority reverses, holding the indict- J.,

MEYERS, participating. ment is sufficient it tracked stat-

131 certainty pre- charged as that a with such utory definition sexual harassment which seeking to know sumptively man sexual advances” and innocent includes “unwelcome and, therefore, may fully is meet ascertain “requests for sexual favors” what he must charged against sufficiently specific appellee to with the matters therefrom Ante, offense. 933 notice him.1 reasons, following the I at 128. For S.W.2d 220, State, 211 85 Tex.Crim. S.W. Hardin v. disagree. State, (1919). also, 233, v. See Castillo 236 443, (Tex.Cr.App.1984) 447 689 S.W.2d II. (“[T]he the presented is whether question right An accused’s to notice of the accusa charging instrument face of the indictment against premised upon him constitu is tion plain intelligible language forth in and sets state, principles, and and tional both federal the accused information to enable sufficient statutory provisions. The Sixth several State, defense.”); his v. prepare to Swabado guarantees the accused shall en Amendment and, 361, (Tex.Cr.App.1980); 363 597 S.W.2d joy right the to be informed of the nature State, 570, 28 469 Earl v. 33 Tex.Crim. S.W. I, § the Art. and cause of accusation. 10 (1894). recently we held: More an ac guarantees Constitution the Texas ... an must facts suffi- [indictment] right the and to demand nature cused the give the accused notice of cient to And, against him. cause of the accusation he is particular offense with which protect Legislature to enacted statutes charged.... say It is not sufficient See, right. Tex.Code Crim.Proc.Ann. with what that the accused knew offense (“The 21.02(7) must set forth art. offense be rather, charged; inquire as we must words.”); plain intelligible art. 21.03 sets to whether the instrument face of (“Everything be in an indict should stated intelligible plain forth necessary proved.”); is to be art. ment which the ac- enable sufficient information (“The certainty in an required 21.04 indict his prepare cused to defense. ment is will enable the accused to such State, 920, 921 Haecker v. 571 SW.2d plead judgment may given upon be State, also, Cr.App.1978). v. 754 See Daniels any prosecution in bar same 214, (Tex.Cr.App.1988); 217 Beck S.W.2d (An offense.”); art. is suffi 21.11 indictment State, 550, (Tex.Cr.App.1985); 554 682 S.W.2d gives cient “the defendant notice (Tex.Cr. State, McBrayer 642 504 SW.2d particular charged, is offense which he 924, App.1982); Evans v. pronounce ... enable[s] State, 532 (Indict (Tex.Cr.App.1981); Moore v. 925 proper judgment_”); art. 21.15 (Tex.Cr.App.1976). charging negli- or criminal ment recklessness gence must set forth “act or acts relied anticipate not An accused is upon to constitute recklessness or criminal might any facts the State and all variant (An negligence_”); art. 21.19 indictment Drumm v. hypothetically to establish. seek not insufficient if defect form shall (Tex.Cr.App.1977). 947 rights “prejudice does substantial Therefore, quash, face of a motion and, (The defendant.”); art. 21.23 stat- “allege must on its face an indictment pertaining allegations in utes an indict- (1) necessary to show that offense facts informations.). apply to ment also committed, (2) subsequent pros abar (3) offense, notice, give

Long right'to for the same ago, protect this ecution precisely what he held: the defendant notice Terry charged with.” S.W.2d certainty require Our such statutes also, De (Tex.Cr.App.1971). See accused to in indictments as will enable the (Tex.Cr. Vaughn judgment thereon in plead rendered (It improper look to App.1988) any subsequent proceeding. Our bar whether record of the case determine ... decisions hold and, Beck, notice.); had particular offense defendant should set out supplied cated. emphasis unless otherwise indi- 1. AH

132 (“[A]n Evans, 554; S.W.2d at 554 offense should be 682 S.W.2d at 623 S.W.2d at 925; charged intelligible and, plain May, words with 618 at S.W.2d 341. This is certainty such normally because the is not enable accused evidentiary upon plead pure know what will upon he be called to defend facts which Daniels, against rely. 218; will plead judgment and to enable him 754 at S.W.2d Beck, 554; Ducree, may 682 at given as it is in S.W.2d 681 S.W.2d bar of 158; offense.”). 341; prosecution May, at 618 at Phillips further S.W.2d v. the same State, 597 S.W.2d 929 (Tex.Cr.App.1980); To pro- determine whether an indictment and, (Tex. State, v. Cameron 401 S.W.2d 809 adequate vides notice look at the indict- Cr.App.1966). whole, per- ment as a from the defendant’s gener But there are two exceptions to the spective. DeVaughn, 749 S.W.2d at 67 al rule that indictments drafted the statu (Court will focus on the indictment as a tory First, language are sufficient. where an sufficiently charges whole if it determine necessary allegation indictment contains a State, offense.); Dennis v. 647 S.W.2d by comprises an act which defendant (Court 275, (Tex.Cr.App.1983) 279 on focuses statutorily than more one defined means of whole.); State, the indictment as a v. Jeffers performance, but the indictment fails to 185, 646 S.W.2d (Tex.Cr.App.1981) 187 specify which of the definitions of (Court reviews from indictment the defen- upon, act is relied the indictment fails to State, perspective.); dant’s v. 634 Gorman provide constitutionally required notice. 681, (Court (Tex.Cr.App.1982) S.W.2d 682 State, (Tex.Cr. Gibbons v. 652 S.W.2d 413 considers the from the defen- Gorman, App.1983); 682-683; 634 S.W.2d at Drumm, perspective.); dant’s 560 at S.W.2d State, (Tex. Ferguson 846, v. 622 849 S.W.2d (We 946 examine “the criminal accusation Cr.App.1981) (Opinion Rehearing); on Mulli accused....”); perspective from the State, 40, v. nax 756 S.W.2d 42-43 and, Swabado, (“The 597 at 364 ac- S.W.2d App. 1988); State, Jackson v. - Texarkana given cused must be information which 239, 743 (Tex.App S.W.2d 240 . -Amarillo may prepare his defense and this informa- 1985); and, State, Bertram v. 670 S.W.2d tion must from come the face of indict- 305, 1983). see, (Tex.App 308 But ment.”). . -Amarillo State, (Tex.Cr. Reese v. 712 S.W.2d 134 quash A motion to an indictment should be (Indictment App.1986) aggravating kid granted language concerning where the napping did not have to further define “re vague defendant’s conduct is so indefinite strain.”). deny as to the defendant effective notice of State, (Tex.Cr. In Geter v. 779 S.W.2d 403 allegedly DeVaughn, the acts he committed. App.1989), the defendant was also, State, 749 S.W.2d at 67. See Thomas v. theft, namely appropriating United States 158, 163 621 (Tex.Cr.App.1981) (Opin S.W.2d Currency without the effective of its consent Rehearing); Lindsay ion on v. 588 owner. filed The defendant a motion to (Tex.Cr.App.1979); S.W.2d 570 Cruise quash the indictment failed to State, 587 (Tex.Cr.App.1979); provide her notice of how her consent and, Haecker, 571 at S.W.2d 920. As a judge not effective. The trial her denied rule, general an indictment which tracks the motion. At the time the Texas Penal Code Daniels, statutory language is sufficient. defined consent as follows: 218; Castillo, 754 at S.W.2d 689 at S.W.2d by “Effective Consent” includes consent 448; Beck, 554; Evans, 682 S.W.2d at 623 person legally to act for the authorized 925; May S.W.2d at 618 S.W.2d owner. Consent is not effective if: Haecker, (Tex.Cr.App.1981); 341 (A) coercion; by deception induced 921; and, at Ducree S.W.2d (B) by given person the actor knows is (Tex.App [14th Dist.] . -Houston legally own- authorized act for the And, indictment, it is rare when an drafted er; statute, penal of a is insufficient (C) given person defendant notice the offense who reason Daniels, Beck, charged. 218; youth, defect, S.W.2d mental intox- disease or (Indictment Castillo, at 448 un- ication is known the actor to be dispo- allege the manner in property to make which failed to able reasonable sitions; was insuffi “started fire” defendant 266, 267 cient.); Miller (D) given solely to detect commis- (Indictment (Tex.Cr.App.1983) failed of an sion offense. allege the and means which the manner (Since 31.01(4) Code Ann. Tex.Penal destroyed property was insuffi defendant appearing now and at Tex.Penal amended (In cient.); Jeffers, 646 at 187-188 S.W.2d 31.01(3).). reversed, §Ann. hold- Code We manner dictment which failed ing provide insufficient to was or of received bets which the defendant notice of which definition the defendant and, insufficient.); parte Ex fers to bet was rely upon prove had no State would she Davis, (Tex.Cr.App. 642 180 S.W.2d Geter, at 407. consent. 779 effective S.W.2d 1982) (Indictment provide du failed (Indictment also, Haecker, cru- supra See for plication allegedly forged instrument elty allege among to animals which failed to constitutionally to provide was insufficient many of “torture” was insuffi- definitions notice.). But, State, required 646 Ozack cient.). (Statutory lan (Tex.Cr.App.1983) S.W.2d 941 Second, statutory language if the is not engage descriptive the “offer to guage was descriptive, merely tracking completely and, State, conduct.”); Nethery sexual pro language of the is insufficient (In (Tex.Cr.App.1985) 692 695 S.W.2d constitutionally required notice to vide “peace offi dictment did not have define Haecker, the defendant. 571 S.W.2d at 921- cer.”). and, 922; State, Conklin v. 144 Tex.Crim. (1942).

343, 162 example, For III. Swabado, charged with the defendant was as “unwel- harassment is defined Sexual tampering government awith record and advances, requests for sexual come sexual indictment, quash filed a motion to con physical or other verbal or Id., tending ambiguous. vague and nature, which is submission to made sexual judge 597 S.W.2d at 363-363. The trial de person’s term condition of exercise judge nied the motion. the trial We held any privilege, power, or enjoyment right, denying erred the motion because the immunity, explicitly implicitly.” either identify govern indictment failed to what 39.03(c). Paragraph Penal Ann. Tex. Code allegedly tampered ment were with. records sexu- alleges appellee made “unwelcome four defendant, nursing home administrator requests “for fa- al sexual advances” and/or indictment, years prior several to the vors.” routinely prepared government and filed rec allegations contends the instant The State Id., at ords. 597 S.W.2d 363. We further speci- are because the indictment sufficient alleged in held the date the indictment could statutory within the fies which of the terms identify government not be used rec harassment are relied definition sexual prove ords because State was entitled to According to the to convict. any at that the offense was committed time Gibbons, exception Ferguson, first Geter prior to return of the indictment which majority applicable. is not agrees period was within the of limitation. Ibid. so do I. (Tex.Cr. See, Hill 411 and, not majority address App.1976); Nees v. 402 does S.W.2d Thus, holding appel- statutory the Court (Tex.Cr.App.1966). exception, contention under the second was insufficient to the de lant’s susceptible “are to an namely that the terms fendant with notice of offense for which Swabado, possible meanings.” list of charged. almost endless Brief, See, Appellee’s pg. Appellee 12. contends Olurebi “re- (Indictment fails “unwelcome sexual advances” (Tex.Cr.App.1994) completely not quests for favors” are notify the of the manner in which sexual defendant fictitious, insufficient.); different- descriptive of the offense. Stated a credit card ly, appellee statutory ground contends definition the resolution of the second for re- of sexual satisfy harassment is insufficient view.

his statutory constitutional and rights to no- charges against

tice of the I agree. him.

Appellee “anticipate

and all might hypo- variant facts the State

thetically Drumm, seek to establish.” And,

S.W.2d at 947. though even the “un-

welcome sexual advances” “requests parts

sexual favors” are defi- parte MATTHEWS, Appellant. Ex Jean harassment, nition of sexual those terms are general too provide appellee notice No. 176-95. particular for which offense he is subsequent prosecution bar a for the same Texas, of Criminal Appeals Court See, Terry, offense. 471 S.W.2d at 852. In En Banc. early Court, of our words it would be all Oct. 1996. impossible but “presumptively for the inno- cent .. fully man to ascertain [from charged against

indictment] the matters Hardin, Indeed,

him.” 211 S.W. at 233.

acts or might omissions constitute “un-

welcome “requests sexual advances” or for favors,”

sexual implicitly explicitly both

are countless. As the Court Appeals not-

ed:

There is no definition of “un- “request

welcome sexual advances” or

sexual potentially [Both favors.” terms]

encompass extremely spectrum broad Offering give behavior. a ride home pay

to or for lunch could interpreted advances,”

“unwelcome sexual as could an variety

endless behavior than other overtly

which is sexual in nature. Like-

wise, a “request for sexual favors” need proposition involving mean a lewd Instead,

ultimate sex act. such “re-

quest” joke could include an obscene

request arrange that someone a “date”

with a party. third

Edmond, 903 pro-

Because the instant indictment fails guaranteed by

vide the notice the Sixth

Amendment of the United Constitu- States I, §

tion and art. 10 of the Texas Constitu-

tion, I judgment would affirm the of Appeals.

Court of

TV. join

I majority opinion as it relates to ground first I review but dissent to

Case Details

Case Name: State v. Edmond

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 2, 1996

Citation: 933 S.W.2d 120

Docket Number: 0958-95

Court Abbreviation: Tex. Crim. App.