State v. Mays

• Decision Date: 15 April 1998
• Docket Number: No. 0367-97,0367-97
• Citation: 967 S.W.2d 404
• Parties: The STATE of Texas, v. John Allen MAYS, Appellee.
• Court: Texas Court of Criminal Appeals

Page 404

967 S.W.2d 404

The STATE of Texas, v. John Allen MAYS, Appellee.

No. 0367-97.

Court of Criminal Appeals of Texas En Banc.

April 15, 1998.

John C. Augustine, Austin, for appellant.

John S. Klassen, Dist. Atty. Pro Tem, Austin, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge, delivered the opinion of the Court in which MEYERS, MANSFIELD, PRICE, HOLLAND and WOMACK, Judges, joined.

Appellee, John Allen Mays, was charged by indictment with the offense of barratry. Prior to trial, he filed a motion to quash the indictment, claiming it failed to allege the offense charged with sufficient specificity. The trial court agreed and quashed the indictment. On a State's appeal, the Court of Appeals affirmed the trial court's action. We granted the State's petition for discretionary review to determine whether an indictment alleging barratry by soliciting employment is sufficient when it tracks the statutory definition of "solicit employment" laid out in the barratry statute. We will reverse.

I.

A Victoria County grand jury returned a two-count indictment against appellee, charging him with barratry. See TEX. PENAL CODE ANN. § 38.12 (Vernon 1994). The first count of the indictment charged that Mays

did then and there, with intent to obtain an economic benefit, knowingly, in person and by telephone, solicit employment for Bernard Klimist and himself by communicating, for the purpose of providing legal representation, with Lupe Ordonez, a prospective client, concerning legal representation arising out of an accident at a Maverick Mart involving Blanche Esparza, when neither Lupe Ordoneznor anyone acting on behalf of Lupe Ordonez had requested the communication; and the conduct of John Allen Mays was not authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court.

The second count similarly charged that Mays

did then and there, with intent to obtain an economic benefit, knowingly, in person and by telephone, solicit employment for Bernard Klimist, Norman Jones, Knute Dietze and himself by communicating, for the purpose of providing legal representation, with Gloria Wearden and Marian Rosse, family members of prospective client Robert Wearden, concerning legal representation arising out of an an [sic] car accident involving Robert Wearden that happened on or about July 3, 1994, when neither Gloria Wearden nor Marian Rosse nor anyone acting on behalf of either of them had requested the communication; and the conduct of John Allen Mays was not authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court.

Appellee moved the court to set aside the indictment on the grounds that it "fail[ed] to allege in specifically [sic] terms the manner and means the Defendant allegedly solicited employment of the alleged prospective clients." The trial court granted appellee's motion, concluding that "the indictment herein, which tracts [sic] the language and terms of the statute is insufficient because the statutory language is not completely descriptive," and because the indictment "fail[ed] to give adequate notice of the matter [sic] and means that Defendant acted in violation of the statute."

II.

Our constitution guarantees an accused the right to demand the nature and cause of the action against him, and to have a copy thereof. TEX. CONST. art. I, § 10. The charging instrument must convey sufficient notice to allow the accused to prepare his defense. Adams v. State, 707 S.W.2d 900, 901 (Tex.Crim.App.1986) (citing Voelkel v. State, 501 S.W.2d 313 (Tex.Crim.App.1973)). The legislature has also provided some guidance for the requisite specificity of indictments. Article 21.02(7) of the Texas Code of Criminal Procedure requires that "[t]he offense ... be set forth in plain and intelligible words." TEX.CODE CRIM. PROC. ANN. art. 21.02(7) (Vernon 1989). Article 21.03, provides that "[e]verything should be stated in an indictment which is necessary to be proved." Id. art. 21.03. Finally, article 21.04 provides that "[t]he certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense." Id. art. 21.04.

Subject to rare exceptions, an indictment tracking the language of the statute will satisfy constitutional and statutory requirements; the State need not allege facts that are merely evidentiary in nature. Moreno v. State, 721 S.W.2d 295 (Tex.Crim.App.1986); Beck v. State, 682 S.W.2d 550 (Tex.Crim.App.1985). We have previously outlined the limitations of this general principle:

[T]his rule applies only where the information is framed under a statute which defines the act constituting the offense in a manner that will inform the accused of the nature of the charge. In other words, if the language of the statute is itself completely descriptive of the offense, an information is sufficient if it follows the statutory language.

Haecker v. State, 571 S.W.2d 920, 921 (Tex.Crim.App.1978) (citing Lopez v. State, 494 S.W.2d 560 (Tex.Crim.App.1973)).

Texas Penal Code section 38.12, Barratry, provides, in relevant part, that

(a) A person commits an offense if, with intent to obtain an economic benefit the person:

...

(2) solicits employment, either in person or by telephone, for himself or for another ...

TEX. PENAL CODE ANN. § 38.12(a) (Vernon 1994). The code contains elsewhere a definition of the term "solicit employment," which provides:

"Solicit employment" means to communicate in person or by telephone or written communication with a prospective client or a member of the prospective client's family concerning legal representation arising out of a particular occurrence or event, or series of occurrences or events, or concerning an existing legal problem of the prospective client, for the purpose of providing legal representation to the prospective client, when neither the person receiving the communication nor anyone acting on that person's behalf has requested the communication.

Id. § 38.01(11). It is apparent that the indictment in this case carefully tracked the language of the statutory definition. Furthermore, it provided appellant additional information about the alleged offense, including on whose behalf he was charged with acting, the prospective clients with whom he was charged with contacting, and the specifics of the occurrences or events out of which the prospective clients' legal problems arose. The question before us, then, is whether such an indictment provides sufficient notice to a defendant.

III.

The Court of Appeals in this case held that this indictment failed to sufficiently define the expression "solicit employment." The court relied upon many cases which acknowledged that merely quoting statutory language may not adequately notify a defendant of the charges raised against him. All of these cases found indictments insufficient on the sound legal principle that

[a]lthough an indictment which tracks the language and terms of the statute is ordinarily sufficient, if the statutory language is not completely descriptive, so that particularity is required to afford the defendant notice as required, merely tracking the language of the statute may be insufficient.

Daniels v. State, 754 S.W.2d 214, 218 (Tex.Crim.App.1988). However, none of these cases involved an indictment which tracked a definition provided in a statute. See, e.g., Castillo v. State, 689 S.W.2d 443, 449 (Tex.Crim.App.1984) ("the term 'start a fire' as used in the second count of the indictment is not statutorily defined"); State v. Sandoval, 842 S.W.2d 782, 791 (Tex.App.--Corpus Christi 1992, pet. ref'd) ("procure" not defined in former barratry statute). 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. Likewise, when a statute defines the manner or means of commission in several alternative ways, an indictment will fail for lack of specificity if it neglects to identify which of the statutory means it addresses. State v. Edmond, 933 S.W.2d 120, 128 (Tex.Crim.App.1996)("where a criminal statute possesses statutorily-defined, alternative methods of committing an offense, then upon timely request, a defendant is entitled to an allegation of which statutory method the State intends to prove"); e.g., Olurebi v. State, 870 S.W.2d 58, 62 (Tex.Crim.App.1994) (since credit card may be "fictitious" in two ways, indictment must notify defendant which way is charged). We face neither of these problems here. The portion of the barratry statute in question contains only one manner or means of commission, and the statute defines that manner or means.

In Edmond, we addressed the issue of whether following a statute's definition of the manner or means of offense will sufficiently notify a defendant of the charges against him. See Edmond, generally. There, the court of appeals found an official oppression indictment insufficient for lack of specificity. That indictment alleged Edmond committed official oppression by sexually harassing his victim, and defined "sexual harassment" as "unwelcome sexual advances" or "request for sexual favors." We reversed the judgment of the court of appeals, noting that the language of the indictment tracked exactly the language of the statutory definition of "sexual harassment," and concluded that "when a statute defines the manner or means of committing an offense, an indictment based upon that statute need not allege anything beyond that definition." Edmond, 933 S.W.2d at 129. The Edmond rule applies directly to the facts of this case. The manner or means of commission in this case was soliciting employment, and the statute provided a lengthy definition of that manner or means. Therefore, the indictment in this case, tracking that statutory...