WILLIAMS, JEMADARI CHINUA v. the State of Texas

In the Court of Criminal
Appeals of Texas
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No. PD-0099-23
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JEMADARI CHINUA WILLIAMS,
Appellant

v.

THE STATE OF TEXAS

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On State’s Petition for Discretionary Review
From the Fourth Court of Appeals
Kerr County
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YEARY, J., filed a dissenting opinion.

In a single-count indictment, the State charged Appellant with
aggravated promotion of prostitution. See TEX. PENAL CODE § 43.04.
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Specifically, the indictment charged that Appellant, “did then and there
knowingly own, invest in, finance, control, supervise, or manage a
prostitution enterprise that used at least two prostitutes.” See id.
Appellant contends before this Court that each of these methods of
violating Section 43.04(a) is properly construed to be an element of one
of six distinct offenses rather than alternate manners and means of
committing the same offense. Consequently, he argues, alleging each of
these offenses in the same count deprived him of sufficient notice of the
charge against him.
The Court today resolves that question by assuming without
deciding that—because Appellant used the language “manner and
means” in the trial court and the court of appeals—the phrase “owns,
invests in, finances, controls, supervises, or manages” presents alternate
manners and means of committing aggravated promotion of
prostitution. See Majority Opinion at 5–6; TEX. PENAL CODE § 43.04.
Because Appellant’s single-count indictment included each of the “six
possible methods” of violating that statute, the Court concludes, under
Ferguson v. State, that Appellant had adequate notice that the State
intended to prove all the manners and means specified in the statute. 1
Majority Opinion at 2, 8; see 622 S.W.2d 846, 851 (Tex. Crim. App. 1981)
(op. on State’s mot. for reh’g). I do not disagree with the Court’s
reasoning but with its premise.
Whether the six statutory methods of violating Section 43.04(a)

1 Note that this kind of charge is appropriate only when the State, in

good faith, intends to preserve the option to present evidence that the accused
violated the given statute by every manner and means described by that
statute.
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constitute alternative manners and means of committing one offense or
elements of six distinct offenses is, in my view, outcome-determinative
in this case. As a starting point, to determine whether an indictment
gives adequate notice, a court must “[f]irst . . . identify the elements of
[the] offense.” State v. Barbernell, 257 S.W.3d 248, 255 (Tex. Crim. App.
2008). In other words, if Section 43.04(a) identifies elements, rather
than manners and means of committing aggravated promotion of
prostitution, then at the very least, Appellant was entitled to an
indictment charging each of those offenses in separate counts. TEX.
CODE CRIM. PROC. art. 21.24(a) (“Two or more offenses may be joined in
a single indictment . . . with each offense stated in a separate count, if
the offenses arise out of the same criminal episode, as defend in Chapter
3 of the Penal Code”); id. at 21.24(b) (“A count may contain as many
separate paragraphs charging the same offense as necessary, but no
paragraph may charge more than one offense.”); see also Martinez v.
State, 225 S.W.3d 550, 554 (Tex. Crim. App. 2007) (“Permitting more
convictions than authorized by the indictment implicates a defendant’s
due-process right to notice.”). But the court of appeals in this case failed
to address this most necessary question: Are the options listed in Section
43.04(a) of our Penal Code different elemental offenses or different
manners or means of committing a single offense?
The answer to that question is important for other reasons as
well. First, resolution of that question affects what questions a jury is
required to answer unanimously in order to find a defendant guilty
under Section 43.04(a). See Young v. State, 341 S.W.3d 417, 422 (Tex.
Crim. App. 2011) (“[T]he jury must unanimously agree about the
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occurrence of a single criminal offense, but they need not be unanimous
about the specific manner and means of how that offense was
committed.”). Similarly, resolution of that question also affects how the
principles of double jeopardy will apply when raised with respect to
Section 43.04(a). See Nawaz v. State, 663 S.W.3d 739, 746 (Tex. Crim.
App. 2022) (“Jury unanimity and double jeopardy, the Court has said,
‘are closely intertwined strands of our jurisprudence’ that ‘address the
same basic question: In a given situation, do different legal theories of
criminal liability comprise different offenses, or do they comprise
alternate methods of committing the same offense?’”) (quoting Huffman
v. State, 267 S.W.3d 902, 905 (Tex. Crim. App. 2008)).
Appellant argues in his responsive brief before this Court, on the
State’s petition for discretionary review, that the statute’s use of the
words “owns, invests in, finances, controls, supervises, or manages”
identifies elements of, and not simply alternative manners and means
of committing, aggravated promotion of prostitution. It is true that in
the trial court, and in the court of appeals, Appellant’s counsel called
these statutory options “manners and means.” But it was clear enough
that his argument was that the State must be required to choose which
statutory offense it would pursue in the one and only count of the
charging instrument approved by the grand jury against him. His
motion to quash stated that his “rights . . . to be fairly informed of the
charge against which he was required to defend was denied by the
failure of the Indictment to allege an essential element of the offense,
namely the manner and means of committing the offense.” And he
argued at the hearing on the motion to quash:
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They will have to narrow this down and specify which
manner and means out of the six possible options. Does he
own it? Does he invest in it? Does he finance it? Does he
control it? Does he supervise it or does he manage it? Or is
it all of the above? But they don’t state that and that lacks
specificity for my client to be able to defend against this
indictment sufficiently.
For us to defend against it, we have to go through
and defend against each one of these manner and means,
and all they have to do is pick one and go after it, but we
still have to go after all six, and I think that is
fundamentally unfair to my client.

I would not resolve this important question of statutory
construction by assuming, simply because Appellant used the
unfortunate words “manner and means” at trial and before the court of
appeals, that Section 43.04(a) specifies the manners and means of
committing aggravated promotion of prostitution, rather than the
elements of six distinct offenses. To resolve the issue that we hoped to
review in this case without first addressing this important predicate
legal issue risks resolving this case incorrectly and, more importantly,
muddling our jurisprudence.
The court of appeals did not address this question. But, because
the proper resolution of the issue is necessary to an appropriate
disposition of the issue raised by appellant in the trial court and resolved
in the court of appeals, the court of appeals should be the one to address
it in the first instance. Consequently, I would remand this case to that
court to analyze and determine the correct construction of this statute
before addressing the issue on discretionary review. See Osorio-Lopez v.
State, 663 S.W.3d 750, 757 (Tex. Crim. App. 2022) (noting this Court
only reviews issues addressed by the court of appeals unless the proper
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resolution of any outstanding issue is clear).
Because the Court does not, I respectfully dissent.

FILED: January 10, 2024
PUBLISH