WILLIAMS, JEMADARI CHINUA v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0099-23

JEMADARI CHINUA WILLIAMS, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
KERR COUNTY

NEWELL, J., filed a dissenting opinion in which WALKER, J., joined.

The Sixth Amendment of the Constitution of the United States

provides in part: “In all criminal prosecutions, the accused shall enjoy

the right . . . to be informed of the nature and cause of the

accusation.” 1 Section 10 of Article 1 of the Texas Constitution states

1
U.S. CONST. amend. VI.
Williams Dissenting — 2

in part: “In all criminal prosecutions the accused shall have . . . the

right to demand the nature and cause of the accusation against him,

and to have a copy thereof.” 2 Article 21.02(7) of the Code of Criminal

Procedure requires that a charging instrument set forth the offense “in

plain and intelligible words.” 3

All these provisions make clear that a criminal defendant has

both a constitutional and statutory right to notice of what crime the

State intends to prosecute him for. It has long been the case that in

most cases, a charging instrument that tracks the relevant statutory

text will provide adequate notice to the accused. 4 But tracking the

language of the statue may be insufficient if the statutory language is

not “completely descriptive of an offense.” 5 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

2
Tex. Const. art. I, § 10.

3
Tex. Code Crim. Pro. Ann. art. 21.02.

4
State v. Ross, 573 S.W.3d 817, 820 (Tex. Crim. App. 2019); see also Olurebi v. State, 870
S.W.2d 58, 62 (Tex. Crim. App. 1994) (generally, an indictment that tracks the statutory
language will survive a motion to quash if it is completely descriptive of the offense).

5
Curry v. State, 30 S.W.3d 394, 398 (Tex. Crim. App. 2000); see also Ross, 573 S.W.3d at
820 (“tracking the language of the statute may be insufficient if the statutory language is
not ‘completely descriptive’ of an offense”).
Williams Dissenting — 3

manner or means it seeks to establish. 6 And while I agree that the

State is entitled to prosecute a criminal defendant under multiple

different theories for the same crime, the State can only do so if it

believes it has evidence to support those theories. If the State does

not believe it has evidence to support every theory alleged, it must

elect which theories it thinks it can prove. Under the Court’s holding

today, the State no longer needs to be sure of the facts of the case

before charging every possible theory.

Notably, we rejected the argument in Ferguson v. State that the

State can reflexively allege every possible statutory manner and

means disjunctively. 7 In Ferguson, the State charged the defendant

with delivery of a controlled substance but failed to allege in the

indictment which statutory definition of “delivery” it intended to rely

upon. 8 The State argued that a defendant would be on no greater

6
State v. Barbernell, 257 S.W.3d 248, 251 (Tex. Crim. App. 2008); see also State v.
Edmond, 933 S.W.2d 120, 128-129 (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”); see, e.g., Saathoff v. State, 891 S.W.2d 264, 266 (Tex. Crim. App.
1994) (“if properly requested, the definition(s) of intoxication required for involuntary
manslaughter must be alleged in the indictment”).

7
Ferguson v. State, 622 S.W.2d 846, 851 (Tex. Crim. App. 1980) (“[A]ssuming that the
State did elect to allege each type of criminal conduct, the appellant would be on notice that
all types of delivery were going to be shown, or were possibly going to be shown, and he
could prepare his defense accordingly. If not, the appellant would be left to guess or assume
that the State was going to prove one or all the types of conduct.”).

8
Id. at 848.
Williams Dissenting — 4

notice than if the State had only alleged “delivery” without listing any

statutory definitions. 9 As we explained:

We do not agree. Initially, the State’s argument assumes
that the State would allege all three types of delivery. The
prosecution, aware that the evidence would only support
one type of delivery, may elect to allege only that type of
delivery. 10

In other words, Ferguson recognized that the State, by merely

pleading “delivery,” could have overcharged beyond the available

proof. I see no difference between that situation and one in which the

State alleges every possible statutory manner and means for an

offense without regard to whether the evidence supports it.

In this case, Appellant’s indictment tracked the statutory

language which means the State alleged all six possible manner and

means for the offense of aggravated promotion of prostitution. 11

Several of the manner and means alleged in Appellant’s indictment,

such as “controls,” “supervises,” “manages,” “invests in,” and

“finances,” are undefined terms of variable meaning. 12 How is the

9
Id. at 851.

10
Id.

11
Tex. Pen. Code Ann. § 43.04 (“A person commits an offense if he knowingly owns, invests
in, finances, controls, supervises, or manages a prostitution enterprise that uses two or
more prostitutes.”).

12
See, e.g., State v. Mays, 967 S.W.2d 404, 407 (Tex. Crim. App. 1998) (“A statute which
uses an undefined term of indeterminate or variable meaning requires more specific
Williams Dissenting — 5

defense supposed to know what differentiates “supervises” from

“manages” or “invests in” from “finances” unless the State picks one?

Given the indefinite meaning of these terms, the State’s refusal to

clarify which manner and means it intended to prove failed to provide

Appellant with adequate notice of the charges against him. 13

The State’s pleading in Appellant’s case created the same

uncertainty as the indictment in Ferguson. At a pre-trial hearing on

Appellant’s motion to quash, the State repeatedly stated it was not

required to specify which manner and means it intended to prove but

that the facts at trial would bear out which manner and means

applied:

“[T]here is nothing that says that you have to force me to
pick which one of these that I'm going to go by. Obviously,
they felt like they wanted to include these as a means for
me to go at [sic] a prostitution enterprise. I would also say
that the facts will bear out which one it is, control,
supervise or manage or invest in or whatever. They are all
somewhat connected with overall control. That being said,
there is nothing that indicates or no case law or anything

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.”); Olurebi, 870 S.W.2d at 62 (since credit card may be “fictitious” in
two ways, indictment must notify defendant which way is charged).

13
See, e.g., Curry, 30 S.W.3d at 398 (“An indictment is generally sufficient to provide notice
if it follows the statutory language. But tracking the language of the statute may be
insufficient if the statutory language is not completely descriptive, so that more particularity
is required to provide notice.”).
Williams Dissenting — 6

for you to utilize that would make me have to pick which
one of those.” 14

This was the State’s approach in Ferguson, and we rejected it. 15 In

Ferguson, we held the indictment deficient because it left the defense

to guess or assume that the State was going to prove one or all the

types of conduct. 16 As mentioned above, if the prohibited conduct is

statutorily defined to include more than one manner or means of

commission, then the State must, upon timely request by the

defendant, allege the particular manner or means it seeks to establish.

Appellant timely requested notice of which manner and means the

State intended to prove, and while the State was not required to elect

only one manner and means, it was required to elect the manner and

means that were supported by the evidence. 17 The State essentially

responded, “you can’t make me tell you.” Until today, the State was

wrong.

Perhaps the Court means that because the State was required to

elect which theory it intended to prove and it did not do so, that meant

14
7 R.R. 21.

15
Ferguson, 622 S.W.2d at 851.

16
Id.

17
It is worth noting that at trial the State did not present evidence supporting every manner
and means alleged. The State’s prosecuted Appellant under the theory that Appellant
controlled, supervised, or managed the prostitution enterprise at issue. It did not present
evidence that Appellant, owned, invested in, or financed the enterprise.
Williams Dissenting — 7

the State elected to prove all six theories. That would be more

palatable than categorically discarding sub silentio the requirement

that the State elect which statutory manner and means it intends to

prove when a defendant timely requests that information. But the

record in this case suggests that the State was not intending to prove

every statutory manner and means; it was filing the broadest possible

indictment without regard to whether the facts would support all six

manner and means alleged. I believe this runs afoul of Ferguson and

its progeny.

With these thoughts, I dissent.

Filed: January 10, 2024

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