Court of Appeals of Texas, Fourth District, San Antonio
the County Court at Law No. 15, Bexar County, Texas Trial
Court No. 519657 The Honorable Robert Behrens, Judge
Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Irene
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
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."
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.
Notice and Standard of Review
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).
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.
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.