Kass v. State

• Decision Date: 25 March 1981
• Docket Number: 65498,No. 3,Nos. 65365,s. 65365,3
• Citation: 642 S.W.2d 463
• Parties: Lisa Fran KASS, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 463

642 S.W.2d 463

Lisa Fran KASS, Appellant, v. The STATE of Texas, Appellee.

Nos. 65365, 65498.

Court of Criminal Appeals of Texas,

Panel No. 3.

March 25, 1981.

On Rehearing June 17, 1981 in No. 65365.

Motion for Leave to File Appellant's

Motion for Rehearing Denied

Oct. 27, 1982 in No. 65365.

Stanley G. Schneider, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Ray Elvin Speece and Brad Beers, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before ROBERTS, ODOM and CLINTON, JJ.

OPINION

CLINTON, Judge.

These are appeals from convictions for prostitution, ¹ which were consolidated by order of this Court. Punishment assessed in each case was a fine of $500.00 and a jail term of 30 days.

In each cause appellant timely filed motions to quash the charging papers--in these cases, informations based upon complaints--which were overruled by the trial court prior to trial. ² On appeal she contends that this action constituted reversible error in both causes.

In her motions to quash, appellant complained that the charging instruments failed to specify the type of "sexual conduct" she was alleged to have offered, agreed to, engaged in and solicited, respectively; thus, she was not apprised of the illegal conduct for which she was to be prosecuted, and was thereby deprived of facts necessary to preparation of her defenses.

The penal code subchapter under which appellant was prosecuted in these cases, provides in V.T.C.A. Penal Code, Section 43.01, that:

"In this subchapter:

(1) 'Deviate sexual intercourse' means any contact between the genitals of one person and the mouth or anus of another person.

* * *

* * *

(3) 'Sexual contact' means any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.

(4) 'Sexual conduct' includes deviate sexual intercourse, sexual contact, and sexual intercourse. ³

(5) 'Sexual intercourse' means any penetration of the female sex organ by the male sex organ."

Readily then, it can be seen that the prohibited acts alleged by the State to have been engaged in or solicited by appellant--"sexual conduct"--may, by statute, consist of either "deviate sexual intercourse," "sexual contact," or "sexual intercourse" as those terms are defined.

We are constrained to agree with appellant, that the factual elaboration sought by her motions to quash was information to which she was entitled upon her timely written requests therefor. Ferguson v. State, 622 S.W.2d 846 (Tex.Cr.App., on State's motion for rehearing); Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977).

The State urges that the holding of Martinez v. State, 500 S.W.2d 151 (Tex.Cr.App.1973) supports its position that no error attended the denial of appellant's motions to quash. But in Martinez, supra, the appellant first raised his "notice" exception to the indictment on appeal, a point in the process at which none but those defects which operate to deprive the trial court of jurisdiction over the cause ab initio, will be considered for the first time. American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).

It is firmly established that a properly asserted exception to a charging instrument on the ground of inadequate notice, requires the trial court's, as well as our, consideration of the allegations contained therein from the perspective of the accused. See generally King v. State, 594 S.W.2d 425 (Tex.Cr.App.1980); Cruise v. State, 587 S.W.2d 403 (Tex.Cr.App.1979); and Drumm, supra. Viewed in this light, should the court find that the accused is forced to "guess" as to the specific charge about which he complains, the very circumstances are presented under which his exception must be sustained. ⁴ Id.

It is for this reason that we also reject the State's contention that appellant herein would be protected against a second prosecution for the same offenses, since a person pleading former acquittal or conviction may later allege and prove facts which show the identity of the offense to be one for which he has already stood in jeopardy. While what the State says is true, ⁵ when a sufficient exception to the allegations is asserted pretrial, the accused is entitled at that point to have the face of the State's pleading aver facts which will "precisely distinguish the conduct alleged from other conduct by the accused, and thereby insure a bar to a subsequent prosecution for the same offense. Article 21.04, V.A.C.C.P." King, supra, 594 S.W.2d at 427.

We hold that appellant's motions to quash entitled her to the allegation of facts sufficient to bar subsequent prosecutions for the same offenses and sufficient to give her precise notice of the offenses with which she was charged. King, supra, Cruise, supra.

For the trial court's errors in this regard, the judgments of conviction are reversed, the informations, as well as the prosecutions thereon, are dismissed.

Before the Court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for prostitution. V.T.C.A. Penal Code, Sec. 43.02(a)(1). Following her plea of guilty, the court assessed appellant's punishment at 30 days and $500.00.

In her sole ground of error, appellant contends the court erred in failing to grant her motion to quash the information in this cause. The information alleges in pertinent part that on October 2, 1979, appellant did:

"... knowingly offer and agree to engage, and engage in, sexual conduct with T.L. Keen for a fee."

The motion to quash complained that the information was insufficient to give appellant notice of the offense with which she was charged due to the numerous meanings of the term "sexual conduct." See V.T.C.A. Penal Code, Sec. 43.01(4). On original submission, a panel of this Court concluded that the trial court erred in overruling appellant's motion to quash.

In Craven v. State, 613 S.W.2d 488, this Court considered whether a defendant who pleads guilty may complain on appeal of the overruling of a motion to quash. There, it was stated:

"... in earlier times the Helms rule would mandate our finding that appellant has waived 'all nonjurisdictional defects' in the proceedings below, Helms v. State, 484 S.W.2d 925, 927 (Tex.Cr.App.1972).

"However, since Helms, supra, the Legislature has added a proviso to the Article 44.02, V.A.C.C.P. that 'abrogated this rule regarding the effect of a guilty plea in cases of plea bargains before the court,' thereby superceding 'the prior case law as stated in Helms, supra.' Ferguson v. State, 571 S.W.2d 908, 910 (Tex.Cr.App.1978). Therefore, we must first determine whether our review of the single ground of error is authorized by the Article 44.02 proviso or is circumscribed by the Helms rule. That determination turns, of course, on whether there was a plea bargain honored by the trial court." Id. at 489.

In Craven, the Court ultimately concluded that the record revealed that the guilty plea was the result of a plea bargain. It was therefore stated that under Art. 44.02, supra, the defendant could appeal from an adverse ruling on his motion to quash.

The record in the instant case reveals as follows:

"THE COURT: You are charged with prostitution, how do you plead to that guilty or not guilty?

"MS. KASS: Guilty.

"THE COURT: Are you pleading guilty because you are guilty and for no other reason?

"MS. KASS: Yes, sir.

"THE COURT: Recommendation?

"MR. BEERS: 30 days confinement in jail and a five hundred dollar fine.

"THE COURT: On your plea of guilty, the Court finds you guilty and assesses your penalty a 30 days in jail, five hundred dollar fine plus cost of Court."

In Rodriguez v. State, 509 S.W.2d 319 (Tex.Cr.App.), this Court stated that the question of whether a guilty plea is the result of a plea bargain, is a question of fact to be determined from evidence presented at trial. See King v. State, 511 S.W.2d 32 (Tex.Cr.App.). In those cases in which this Court has considered a negotiated plea, there has been evidence in the record to support the finding that plea bargaining occurred. See Miller v. State, 608 S.W.2d 931 (Tex.Cr.App.); Carter v. State, 608 S.W.2d 691 (Tex.Cr.App.); Bass v. State, 576 S.W.2d 400 (Tex.Cr.App.).

The record in the instant case reveals that the prosecutor recommended a certain punishment and that the recommendation was followed by the court. However, there is nothing in the record to suggest that the recommendation had been agreed upon by the prosecutor, appellant and her attorney as the result of a plea bargain. We thus conclude that the record fails to reflect the existence of a plea bargain.

Since the record fails to reflect that the plea in the instant case was the result of a negotiated plea bargain, appellant's plea of guilty waived her right to complain of the court's action in overruling the motion to quash. Craven v. State, supra. Nothing is presented for review.

The State's motion for rehearing is granted and the judgment is affirmed.

ROBERTS and TEAGUE, JJ., dissent.

CLINTON, Judge, dissenting.

In arguing that the Court grant a rehearing the affected District Attorney, one of whose assistants handled the guilty plea trial below, predicates one reason in part as follows:

"... Appellant plead guilty, stating that she was pleading guilty because she was guilty and for no other reason. The trial court then assessed punishment in compliance with the agreed plea recommendation between Appellant and the State." ¹

To pretend there is no plea bargain in this case illserves the criminal justice system and those working in it. ²

Obviously the brief colloquy excerpted from the record by the majority does not reflect the usual inquiry as to a plea bargain that Article 26.13, V.A.C.C.P. requires for the simple reason that over at least one hundred years this Court has told the bench and the bar time and time again that the statutory admonishment "need not precede the...