State v. Ross

• Decision Date: 15 May 2019
• Docket Number: NO. PD-1066-17,PD-1066-17
• Citation: 573 S.W.3d 817
• Parties: The STATE of Texas v. Dai'Vonte E'Shaun Titus ROSS, Appellee
• Court: Texas Court of Criminal Appeals

573 S.W.3d 817

The STATE of Texas

v.Dai'Vonte E'Shaun Titus ROSS, Appellee

NO. PD-1066-17

Court of Criminal Appeals of Texas.

Delivered: May 15, 2019

OPINION

Keasler, J., delivered the opinion of the Court as to Parts I, II, III-A, III-C, III-D, and IV, in which Hervey, Richardson, Yeary, and Keel, JJ., joined, and filed an opinion as to Part III-B, in which Hervey, Richardson, and Keel, JJ., joined.

Dai'Vonte Ross is accused of committing disorderly conduct for "intentionally or knowingly ... display[ing] a firearm ... in a public place in a manner calculated to alarm."¹ The information charging him with this offense largely tracks the relevant penal statute. Both the trial judge and the San Antonio Court of Appeals held that this information does not provide Ross with sufficient notice. Concluding that the information is completely descriptive of a criminal offense, we will reverse their decisions.

I. FACTS

This is a State's pre-trial appeal.² Ross presently stands charged by information with disorderly conduct under Texas Penal Code Section 42.01(a)(8), which says that a person commits an offense if he "intentionally or knowingly ... displays a firearm or other deadly weapon in a public place in a manner calculated to alarm."³ The information charging Ross similarly alleges that, "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 moved to quash the information, "asserting [that] his constitutional right to be fairly informed of the charge was denied ‘by the failure of the Information to allege ... the manner and means by which the offense was allegedly committed.’ "⁴ At the hearing on the motion, Ross argued that tracking the language of the statute provided insufficient notice with respect to this particular disorderly-conduct offense, specifically because Texas is an open-carry state.⁵ He asserted that, to give sufficient notice, the information needed to contain additional facts specifying how the manner of display was "calculated to alarm"—so as to distinguish the charged conduct from the otherwise-lawful open display of a firearm. The State responded that such additional facts would be evidentiary in nature and that the State was not required to plead evidentiary matters.⁶ The trial judge granted the motion to quash, and the State appealed.

The court of appeals affirmed. Relying on our opinion in May v. State (addressing a vagueness challenge to the pre-1983 harassment statute),⁷ the court of appeals concluded that the term "alarm," as it appears in Section 42.01(a)(8), is unconstitutionally vague—and is therefore necessarily "of indeterminate or variable meaning" when used without clarification in a charging instrument.⁸ The court of appeals ultimately held that "when a defendant is charged with disorderly conduct under section 42.01(a)(8), he is entitled to notice of how the manner in which he displayed [the] firearm was calculated to ‘alarm’ because absent such notice the defendant would be unable to prepare a defense."⁹

II. LAW

"The sufficiency of a charging instrument presents a question of law. An appellate court therefore reviews a trial judge's ruling on a motion to quash ... de novo. "¹⁰

The Texas and United States Constitutions grant a criminal defendant the right to fair notice of the specific charged offense.¹¹ To provide this fair notice, the charging instrument must convey sufficient information to allow the accused to prepare a defense.¹² In most cases, a charging instrument that tracks the relevant statutory text will provide adequate notice to the accused.¹³ But tracking the language of the statute may be insufficient if the statutory language is not "completely descriptive" of an offense.¹⁴

We have held, for example, that "if the prohibited conduct is statutorily defined to include more than one manner or means of commission," then "the State must, upon timely request, allege the particular manner or means it seeks to establish."¹⁵ Because Section 42.01(a)(8) is not statutorily defined to include more than one manner or means of commission, that requirement is not implicated in this case. We have also said that "[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."¹⁶ That requirement is at least potentially implicated here.

The court of appeals apparently sought to determine whether the term "alarm" is indeterminate or variable by first considering whether the statute in which that word appears, Penal Code Section 42.01(a)(8), is unconstitutionally vague on its face. "As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."¹⁷

The State makes a plausible argument that, in analyzing the statute's potential for vagueness, the court of appeals was attempting to resolve an issue not squarely before it. Whether a particular indictment or information satisfies the constitutional and statutory requisites of a charging instrument is a separate—and arguably much narrower—question compared to whether the statute underpinning the indictment is vague.

On the other hand, there is some sense to the court of appeals' approach. The court of appeals' reasoning seems to be that, because the term "alarm" as it appears in Penal Code Section 42.01(a)(8) is unconstitutionally vague, any indictment containing that term will, without further elaboration, necessarily provide inadequate notice to the defendant of the nature of the accusation against him. Although it may have implications for other disorderly-conduct prosecutions, there is nothing absurd about this way of thinking.

We will assume, without deciding, that the court of appeals properly reached the issue of whether Section 42.01(a)(8) is unconstitutionally vague in determining whether an information tracking that statute provided Ross with sufficient notice. Ultimately, however, we disagree with the court of appeals' resolution of that issue. We begin our analysis by examining the text of Section 42.01(a)(8), to determine the elements of this particular disorderly-conduct offense.¹⁸

III. ANALYSIS

A. What Section 42.01(a)(8) proscribes.

i. "Alarm."

Penal Code Section 42.01(a)(8) says that "[a] person commits an offense if he intentionally or knowingly ... displays a firearm or other deadly weapon in a public place in a manner calculated to alarm."¹⁹ Most of Ross's complaint, and most of the court of appeals' analysis, turns on what Ross perceives to be the vagueness and/or indeterminacy of the word "alarm." Because "alarm" is undefined, we look to its common usage.²⁰

A common dictionary defines the verb "alarm" as either (1) "to give warning to," (2) "to strike with fear," or (3) to "disturb, excite."²¹ We agree with the State that, in the context of Section 42.01(a)(8), the latter two definitions are the ones plainly embraced by the language of the statute.²² We furthermore agree that construing "alarm" to mean "strik[ing] with fear," particularly in a sudden or exciting manner, makes that term both comprehensible to the ordinary person and evenhandedly enforceable.

But the court of appeals' concern over the meaning of "alarm" clearly did not arise from the lack of a suitable dictionary definition of that word. Instead, the court of appeals found the term "alarm" to be constitutionally fraught precisely because "conduct that alarms some people does not alarm others."²³ The court of appeals cited to a Fifth Circuit opinion, Kramer v. Price , which suggested that the bare term "alarm" is "inherent[ly] vague[ ]" for this very reason.²⁴ The court of appeals concluded that an ordinary person attempting to conform his conduct to the statute would have no idea how to do so, because he would have no way of knowing how, if at all, those who were present to witness his display would react to it.

But, as the State rightly points out, the literal language of the statute does not require the actor to avoid actually alarming another person. Instead, the statute proscribes displaying a firearm in a particular manner—one that is "calculated to alarm."

ii. "Calculated."

This raises yet another question: What does the word "calculated" mean? Our sister court, the Supreme Court of Texas, has held that the word "calculated" may, depending on the context, "mean either likely or intended."²⁵ And, again consulting with a common dictionary, we agree; in this context, "calculated" can be reasonably understood to mean either "planned or contrived to accomplish a purpose," or else simply "likely."²⁶

Because the word "calculated" may be reasonably interpreted in either of two ways, our precedents indicate that it is ambiguous, permitting us to consult extra-textual interpretive sources to best discern its meaning.²⁷ And, for the following reasons, we conclude that, in Penal Code Section 42.01(a)(8), "calculated" is best understood to mean "likely," according to an objective standard of reasonableness and from the perspective of an ordinary, reasonable observer.

We begin by noting that, in a more exhaustive dictionary, it says that when "calculated" is used as a synonym for "likely," it is typically "used with a complementary infinitive."²⁸ An infinitive verb usually takes the form, "to [verb]." Some examples of infinitive verbs are "to walk," "to run," "to jump," and so forth. And that is the precise verb form that follows the word "calculated" in Section 42.01(a)(8) —"to alarm."

We note also that this calculated-plus-infinitive-verb construction appears in several other Texas criminal statutes.²⁹ For example, Article 36.19 of the Code of Criminal Procedure states...