IN THE

TENTH COURT OF APPEALS

No. 10-14-00120-CR

THE STATE OF TEXAS,

Appellant

v.

DENISE DEANE NELSON,

Appellee

From the County Court at Law No. 2

Brazos County, Texas

Trial Court No. 13-02784-CRM-CCL2

D I S S E N T I N G O P I N I O N

I respectfully dissent to the majority’s affirmance of the trial court’s grant of 

Nelson’s motion to quash the amended information.

Each count in the amended information alleged that, on May 28, 2013, Nelson did

knowingly solicit ... a member of the public who has access to the world 

wide web, namely, a free access internet forum, specifically, 

www.backpage.com, to engage in sexual conduct, to-wit: sexual contact; 

for hire.

The focus of Nelson’s motion to quash was the amended information’s use of the 
State v. Nelson Page 2

words “sexual contact.” Nelson contended that, under Kass v. State, 642 S.W.2d 463 (Tex. 

Crim. App. 1982) (op. on reh’g), the use of the words “sexual contact” did not give Nelson 

notice of what “sexual contact” she was alleged to have solicited. See TEX. PENAL CODE 

ANN. § 43.02(a)(2) (West 2015). And in its letter ruling that granted Nelson’s motion to 

quash, the trial court discussed and relied on Kass.

In State v. Barbernell, the Court of Criminal Appeals detailed the fair-notice 

requirements for charging instruments under Texas law:

The Texas and United States Constitutions grant a criminal defendant the 

right to fair notice of the specific charged offense. “The charging instrument 

must convey sufficient notice to allow the accused to prepare a defense.” 

Toward that end, Chapter 21 of the Texas Code of Criminal Procedure 

governs charging instruments and provides legislative guidance 

concerning the requirements and adequacy of notice. With respect to 

informations, Article 21.21 sets out what facts must be included in an 

information and states, in part, “[t]hat the offense [must] be set forth in 

plain and intelligible words[.]” Additionally, an information must include 

everything that is necessary to be proved. An information is sufficient if it

charges the commission of the 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, and enable the court, on conviction, to 

pronounce the proper judgment[.]

We have recognized that in most cases a charging instrument that 

tracks the statutory text of an offense is sufficient to provide a defendant 

with adequate notice. When a statutory term or element is defined by 

statute, the charging instrument does not need to allege the definition of the 

term or element. Typically the definitions of terms and elements are 

regarded as evidentiary matters. But in some cases, a charging instrument 

that tracks the statutory language may be insufficient to provide a 

defendant with adequate notice. This is so when the statutory language 

fails to be completely descriptive. The statutory language is not completely 

descriptive “when the statutes define a term in such a way as to create 

several means of committing an offense, and the definition specifically 
State v. Nelson Page 3

concerns an act or omission on the part of the defendant.” In such cases, 

“more particularity is required to provide notice.” Thus, “if the prohibited 

conduct is statutorily defined to include more than one manner or means of 

commission, the State must, upon timely request, allege the particular 

manner or means it seeks to establish.”

257 S.W.3d 248, 250-51 (Tex. Crim. App. 2008) (emphasis added) (citations in footnotes 

omitted). The court then reiterated the applicable two-step analysis:

In analyzing whether a charging instrument provides adequate notice, our 

notice jurisprudence makes clear that courts must engage in a two-step 

analysis. First, a court must identify the elements of an offense. ... [T]he 

elements, defined by the Legislature, include: the forbidden conduct, the 

required culpability, if any, any required result, and the negation of any 

exception to the offense. Next, as to the second inquiry, when the 

Legislature has defined an element of the offense that describes an act or 

omission, a court must ask whether the definitions provide alternative 

manners or means in which the act or omission can be committed. If this 

second inquiry is answered in the affirmative, a charging instrument will 

supply adequate notice only if, in addition to setting out the elements of an 

offense, it also alleges the specific manner and means of commission that 

the State intends to rely on at trial.

Id. at 255 (emphases added) (citation in footnote omitted).

Thomas v. State, 621 S.W.2d 158, 161, 164 (Tex. Crim. App. 1981) (op. on reh’g) holds

that terms that are specifically defined in a statute and that do not go to an act or omission

of the defendant need not be more specifically pled in a charging instrument. Under 

Barbernell, the elements of the offense and any statutory definitions are the beginning 

point. At the time of the alleged offense, subsections 43.02(a)(2) and 43.02(b) provided:

(a) A person commits an offense if he knowingly: 

(1) offers to engage, agrees to engage, or engages in sexual conduct for 

a fee; or

(2) solicits another in a public place to engage with him in sexual 

conduct for hire.
State v. Nelson Page 4

(b) ... An offense is established under Subsection (a)(2) whether the actor 

solicits a person to hire him or offers to hire the person solicited.

Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3681 (emphases 

added) (current version at TEX. PENAL CODE ANN. § 43.02(a)(2), (b)(2) (West 2015)). 

“Sexual conduct” includes “sexual contact,” which 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.” TEX. PENAL CODE ANN. § 43.01(a)(3, 4) (West 2015)

(emphases added).

On October 20, 1982, the Court of Criminal Appeals issued its opinion in Cardenas

v. State, 640 S.W.2d 291 (Tex. Crim. App. 1982) (en banc), an appeal from a prostitution 

conviction. The issue was not notice, but whether the information was fundamentally 

defective with respect to the defendant’s intent. Id. at 292. The information alleged that 

the defendant did “knowingly offer and agree to engage in sexual conduct, namely, 

sexual contact, with ....” Id. To resolve the issue, the court focused on the “conduct 

element” in the case: “Here, the act alleged was not sexual contact, but rather it was the 

offer or agreement to engage in such conduct.”). Id. at 293. Therefore, the court held that 

the information was not fundamentally defective: ”The intent that must accompany 

future sexual contact need not accompany the offer or agreement to engage in sexual 

conduct. It therefore is not part of the conduct element in this case and need not be 

alleged in the information.” Id. at 292. As discussed below, the focus in Cardenas on the 

conduct element of a prostitution charge alleging “offer to engage” is key.

One week later, the court issued its opinion on rehearing in Kass, an appeal from 
State v. Nelson Page 5

a conviction for solicitation of prostitution. The defendant had moved to quash the 

information, which alleged that she had solicited a person to engage in “sexual conduct” 

for hire. The motion to quash asserted that the information did not give sufficient notice 

because of the numerous statutory meanings of the term “sexual conduct.” Kass, 642 

S.W.2d at 469. Instead of focusing on the forbidden conduct—the solicitation—the 

majority focused on “sexual conduct”:

The term “sexual conduct” is statutorily defined by Sec. 43.01(4), 

supra. The definition provides three different methods of such conduct. 

One of those methods, sexual contact, can in turn be committed in three 

different manners. Likewise, deviate sexual intercourse, can be committed 

in two different manners.

The type of “sexual conduct” the State sought to prove in the instant 

case was critical to appellant’s ability to present a defense. The solicitation 

to engage in some form of such “sexual conduct” was the essence of the 

offense with which appellant was charged. The statutory definition of 

“sexual conduct” provides a number of different manners by which 

appellant could have committed the offense of prostitution. Appellant’s 

motion to quash entitled her to the allegation of facts sufficient to bar a 

subsequent prosecution for the same offense and sufficient to give her 

precise notice of the offense with which she was charged. We conclude the 

court erred in overruling appellant’s motion to quash. 

Id. at 469-70.

Judge McCormick began his dissent by noting that the majority was not following 

the rule announced in Thomas:

The majority overlooks the fact that appellant was not charged with a 

consummated act of prostitution. The act alleged here and which is the 

gravamen of the offense is the solicitation. The term “solicit” was not 

challenged by appellant in her motion to quash. Additionally, the 

solicitation was to commit some act in the future. Since the sexual conduct 

was allegedly to be performed in the future, it is not part of the conduct 

element in this case and need not be further alleged. See and compare 

Cardenas v. State, 640 S.W.2d 291 (1982). Our holding in Thomas dictates that 
State v. Nelson Page 6

the State’s motion for rehearing be granted.

Id. at 470 (McCormick, J., dissenting).

After Kass, several cases have addressed complaints similar to that in Nelson’s 

motion to quash. In Lozano, a case similar to Nelson’s, the appellant, who had been 

convicted of prostitution by solicitation, had moved to quash the information, which had 

alleged that appellant did “in a public place knowingly solicit R. Nieto to engage with 

the Defendant in sexual conduct, namely sexual contact, for hire.” Lozano v. State, 650 

S.W.2d 137, 138 (Tex. App.—Houston [14th Dist.] 1983, no pet.). On appeal she 

complained about the trial court’s denial of her motion to quash, asserting that the 

information was defective “because it fails to allege what type of sexual contact appellant 

allegedly offered.” Id. After citing to the above rule in Thomas, the court held:

In the instant case, the information charges that appellant did “knowingly 

solicit” to engage in sexual contact for hire. The act alleged in the 

information was not sexual contact; rather, it was solicitation to engage in 

such conduct. Thus, the term “sexual contact” does not go to an act or 

omission of appellant, and is not subject to a motion to quash for failure to 

specify which type of sexual contact appellant solicited.

Id.

Similarly, the appellant in Dismore complained on appeal that the information, 

which alleged that he did “[K]nowingly and unlawfully OFFER TO ENGAGE ..., in 

sexual conduct, namely: DEVIATE SEXUAL INTERCOURSE in return for a fee,” did not 

provide sufficient notice because it did not plead the specific act allegedly offered. 

Dismore v. State, 658 S.W.2d 684, 684 (Tex. App.—El Paso 1983, no pet.). The court 

responded: “The critical issue is whether the various physical acts which may be 
State v. Nelson Page 7

characterized as deviate sexual intercourse under Section 43.01 are multiple statutory 

definitions or variant evidentiary matters arising under a single statutory definition. We 

conclude that the latter interpretation is correct.” Id. at 684-85.

But in Jackson, an appeal from an “offer to engage” prostitution conviction, the 

Amarillo court relied on the Kass majority opinion in holding that the trial court erred in 

denying the motion to quash the information.

1 Jackson v. State, 743 S.W.2d 239, 240-41

(Tex. App.—Amarillo 1985, no pet.). As in Dismore, the information alleged that the 

appellant “knowingly offered to engage in sexual conduct, to-wit: deviate sexual 

intercourse, with ..., for a fee.” Id. at 239. The appellant argued that the information did 

“not give her fair notice because it does not allege the particular type of “deviate sexual 

intercourse” she allegedly offered to engage in,” and the Amarillo court agreed that the 

State failed “to allege the manner of deviate sexual intercourse it sought to establish.” Id.

at 240-41.

Laverne is another “offer to engage” prostitution case similar to Dismore and 

Jackson; the information alleged that the defendant “offered ‘to engage ... in sexual 

conduct, namely: deviate sexual intercourse.’” Laverne v. State, 737 S.W.2d 379, 379 (Tex. 

App.—San Antonio 1987) (per curiam), pet. granted per curiam, 753 S.W.2d 404 (Tex. Crim. 

App. 1988) (remanding for harm analysis). Citing Kass and Jackson but acknowledging 

Lozano as contrary authority, in a per curiam opinion the San Antonio court held:

Since an offer to engage in deviate sexual activity might include either oral 

or anal contact with the genitals of another person, defendant was entitled 

 

1 And like the Kass majority opinion, the Amarillo court did not apply the Thomas rule and identify the act 

or omission of the defendant. See Jackson, 743 S.W.2d at 240-42.
State v. Nelson Page 8

to quash the information for failure to specifically state which type of 

deviate sexual intercourse was offered. Kass v. State, 642 S.W.2d 463, 469-

70 (Tex. Crim. App. 1981); Jackson v. State, No. 07-83-0297-CR (Tex. App.—

Amarillo, January 10, 1985) pet. denied, (not yet published);2 Contra, Lozano 

v. State, 650 S.W.2d 137, 138 (Tex. App.—Houston [14th Dist.] 1983, no pet.).

Laverne, 737 S.W.2d at 380. Justice Dial dissented as follows: “I dissent to the majority 

opinion for the reasons stated in Lozano v. State, 650 S.W.2d 137, 138 (Tex. App.—Houston 

[14th Dist.] 1983, no pet.) and Dismore v. State, 658 S.W.2d 684 (Tex. App.—El Paso 1983, 

no pet.).” Laverne, 737 S.W.2d at 380 (Dial, J., dissenting); see also Plemons v. State, No. 01-

92-00095, 1993 WL 460118, at *2 (Tex. App.—Houston [1st Dist.] Nov. 10, 1993, pet. ref’d)

(not designated for publication) (“The courts of appeals are divided on whether a 

charging instrument must state upon request the type of deviate sexual intercourse 

involved.”) (citing Dismore and Jackson).

In Barbernell, a DWI case, the Court of Criminal Appeals addressed the trial court’s 

quashing an information because the State failed to allege which definition of 

“intoxicated” that it intended to prove at trial. Barbernell, 257 S.W.3d at 249. Relying on 

State v. Carter, 810 S.W.2d 197 (Tex. Crim. App. 1991), which held that the State must 

allege which definition of intoxicated—“loss of faculties” or “per se” intoxication (i.e., 

alcohol concentration)—that the State intends to prove at trial, the defendant asserted 

that the information failed to give notice of the manner and means by which he 

committed the DWI offense. Barbernell, 257 S.W.3d at 249. 

The State asserted that a person’s state of intoxication is not an act or omission but 

 

2 The Laverne court’s citation for Jackson’s subsequent history is incorrect; the Court of Criminal Appeals 

did not rule on a petition for discretionary review in Jackson.
State v. Nelson Page 9

rather is the defendant’s condition and a circumstance that accompanies the defendant’s 

act of operating a motor vehicle, while the defendant argued that the Carter decision was 

sound and controlling precedent. Id. at 254-55. In a unanimous opinion, the Court of 

Criminal Appeals set forth the notice law quoted above and then determined that its 

analysis in Carter was incorrect:

The Court reached this conclusion based on its determination that the 

definitions of “intoxicated” permit the offense of DWI to be proven in two 

ways. Our reevaluation of this analysis exposes a serious defect in the 

Court’s reasoning: After identifying the elements of DWI, the Court 

neglected to ask whether the definitions of “intoxicated” concern an act or 

omission so as to create more than one manner and means of committing 

an offense. Instead, without explanation, the Court decided that the two 

definitions of “intoxicated” each constitute separate acts or forbidden 

conduct. In doing so, the Court failed to reconcile this conclusion with its 

previous statement that the definitions of “intoxicated” involve only 

matters of proof. Then, expanding on its faulty determination, the Carter

Court held that, because the two types of forbidden conduct involve 

“fundamentally different natures” and “different behaviors,” a charging 

instrument must allege the definition of “intoxicated” that the State will 

seek to prove at trial.

Id. at 255-56.

The court then conducted an analysis under its precedent:

With the understanding that “intoxicated” is an element of DWI and that 

Section 49.01(2) sets out two definitions for “intoxicated,” we ask whether 

the definitions of “intoxicated” concern an act or omission and create two 

different manners and means of committing DWI. Our recent examination 

of the definitions of “intoxicated” in Bagheri v. State leads us to conclude 

that the answer to this question is “no.” Echoing the sentiments of

Professors Dix and Dawson, in Bagheri, we held that the definitions “set 

forth alternative means by which the State may prove intoxication, rather 

than alternate means of committing the offense.” We then explained, “The 

conduct proscribed by the Penal Code is the act of driving while in a state 

of intoxication. That does not change whether the State uses the per se 

definition or the impairment definition to prove the offense.” These 

statements make clear that the definitions of “intoxicated” are purely 
State v. Nelson Page 10

evidentiary matters; therefore, they do not need to be alleged in a charging 

instrument to provide a defendant with sufficient notice. As a result, we 

overrule Carter’s holding that the State must allege the definition of 

“intoxicated” that it intends to rely on at trial in the charging instrument to 

provide adequate notice.

Id. at 256 (emphasis added) (citations in footnotes omitted).

Kass causes a dilemma: We have to either follow the result in Kass or apply the 

correct and current analysis set out in Barbernell. We cannot do both. I believe that the 

majority errs in choosing to follow Kass and in not applying Barbernell’s analysis.

We should be applying the correct analysis in the much more recent and

unanimous Barbernell decision, rather than follow Kass, which was a split decision that, 

like Carter (which Barbernell overruled), contains a flawed analysis as described in Judge 

McCormick’s dissent. See Kass, 642 S.W.2d at 470 (McCormick, J., dissenting). Following 

Kass also requires the majority to ignore Cardenas.

Under the Barbernell analysis, I note that the legislature did not define the act of 

soliciting; it did define “sexual contact.” Terms that are defined but do not identify the 

act or omission need not be charged with greater specificity; they are evidentiary matters. 

See Barbernell, 257 S.W.3d at 255-56. The gravamen of the charged offense—the act 

alleged—is soliciting, not the specific type of sexual contact being solicited. Lozano, 650 

S.W.2d at 138; see Cardenas, 640 S.W.2d at 292-93 (“the act alleged was not sexual contact, 

but rather it was the offer or agreement to engage in such conduct”). “[T]he term “sexual 

contact” does not go to an act or omission of appellant, and is not subject to a motion to 

quash for failure to specify which type of sexual contact appellant solicited.” Lozano, 650 

S.W.2d at 138 (emphasis added); see Dismore, 658 S.W.2d at 684-85. The type of “sexual 
State v. Nelson Page 11

contact” that was allegedly solicited is an evidentiary matter—alternative means by 

which the State may prove soliciting to engage in sexual contact for hire. See Barbernell,

257 S.W.3d at 256.

3

I would therefore conclude that the trial court erred in granting Nelson’s motion 

to quash the amended information and would sustain the State’s issue, reverse the trial 

court’s order granting the motion to quash, and remand this case.

REX D. DAVIS

Justice

Opinion delivered and filed April 21, 2016

Publish

 

3 Also, the amended information does not present a double-jeopardy problem; each count alleges one 

offense of soliciting for the respective “customer;” a separate offense does not exist for each of the 

definitions of sexual contact. See Huffman v. State, 267 S.W.3d 902, 905-09 (Tex. Crim. App. 2008); Dismore,

658 S.W.2d at 685.