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State v. Ross

Court of Appeals of Texas, Fourth District, San Antonio

August 2, 2017

The STATE of Texas, Appellant
v.
Dai'Vonte E'Shaun Titus ROSS, Appellee

         From the County Court at Law No. 15, Bexar County, Texas Trial Court No. 519657 The Honorable Robert Behrens, Judge Presiding.

          Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Irene Rios, Justice

          OPINION

          Irene Rios, Justice

         Dai'Vonte E'Shaun Titus Ross was charged with disorderly conduct for displaying a firearm in a public place in a manner calculated to alarm. The State of Texas appeals the trial court's order granting Ross's motion to quash. The State contends the trial court erred in granting the motion because the information provided sufficient notice by tracking the language of the statute. We affirm the trial court's order.

          Background

The information charging Ross with disorderly conduct stated:
on or about the 8th Day of June, 2016, DAI'VONTE E'SHAUN TITUS ROSS did intentionally and knowingly IN A MANNER CALCULATED TO ALARM, DISPLAY A FIREARM IN A PUBLIC PLACE, to wit: the 300 block of Ferris Avenue

Ross filed a motion to quash the information asserting his constitutional right to be fairly informed of the charge was denied "by the failure of the Information to allege an essential element of the offense, namely the manner and means by which the offense was allegedly committed."

         At the hearing on the motion, Ross's attorney argued tracking the language of the statute is only sufficient when the statute is completely descriptive of the offense and asserted tracking the language of the statute was not sufficient in this case because Texas is an open-carry state. The State responded that Ross was requesting the State to plead facts that are evidentiary in nature. Ross's attorney replied, "In an open-carry state at what point is it now in a manner calculated to alarm?" At the conclusion of the hearing, the trial court announced it would give the State an opportunity to amend, but if the State chose not to amend, the motion would be granted. The trial court explained, "it seems to me, by specifying a manner calculated to cause alarm, that a person should at least have some basis to determine their defense and, you know, what it is that I'm particularly having to defend against, what was that manner." After the State chose not to amend the information, the trial court signed an order granting the motion, and the State appeals.

         Sufficient Notice and Standard of Review

         "The Texas and United States Constitutions grant a criminal defendant the right to fair notice of the specific charged offense." State v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim. App. 2008); see also State v. Castorena, 486 S.W.3d 630, 632 (Tex. App.-San Antonio 2016, no pet.). To provide fair notice, "'[t]he charging instrument must convey sufficient notice to allow the accused to prepare a defense.'" Barbernell, 257 S.W.3d at 250 (quoting Curry v. State, 30 S.W.3d 394, 398 (Tex. Crim. App. 2000)); see also Castorena, 486 S.W.3d at 632. An information is deemed to provide sufficient notice if it "charges the commission of an offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged." Tex. Code Crim. Proc. Ann. art. 21.11 (West 2009); see id. at art. 21.23 (providing that rules regarding allegations in an indictment and the certainty required also apply to an information).

         In most cases, an information that tracks the statutory text of an offense provides sufficient notice. Barbernell, 257 S.W.3d at 251; Curry, 30 S.W.3d at 398. Tracking the statutory language will be insufficient, however, if the statute defines the manner or means of commission in several alternative ways. Curry, 30 S.W.3d at 398. In such a case, the information must identify which of the alternative statutory manner or means is charged. Curry, 30 S.W.3d at 398; State v. Mays, 967 S.W.2d 404, 407 (Tex. Crim. App. 1998). Similarly, "[a] statute which uses an undefined term of indeterminate or variable meaning requires more specific pleading in order to notify the defendant of the nature of the charges against him." Mays, 967 S.W.2d at 407. Stated differently, more specificity is necessary when a term "is so vague or indefinite as to deny the defendant effective notice of the acts he allegedly committed." Daniels v. State, 754 S.W.2d 214, 220 (Tex. Crim. App. 1988); Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim. App. [Panel Op.] 1980). Otherwise, definitions of terms are generally regarded as evidentiary matters, and the State is not required to allege facts in an information that are merely evidentiary in nature. Smith v. State, 309 S.W.3d 10, 14 (Tex. Crim. App. 2010); Barbernell, 257 S.W.3d at 251; Curry, 30 S.W.3d at 398.

         Whether an information provides sufficient notice is a question of law. Smith, 309 at 13; Barbernell, 257 S.W.3d at 251; Castorena, 486 S.W.3d at 632. Therefore, we review a trial court's decision to quash an information for failure to provide sufficient notice de novo. Smith, ...


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