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Date: 09-21-2020

Case Style:

The State of Texas v. Keirra Peterson

Case Number: 01-19-00137-CR

Judge: Julie Countiss

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: Tiffany C Larsen
Daniel C. McCrory
The Honorable Kim K Ogg

Defendant's Attorney:


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Description: Houston, TX - Compelling Prostitution











On March 1, 2017, a Harris County Grand Jury issued a true bill of indictment,
alleging that appellee on or about November 3, 2016, “did then and there unlawfully,
and knowingly cause by any means, K.O., a person younger than eighteen years of
age, to commit prostitution.”
3
(Emphasis omitted.)
Before trial, appellee moved to quash and dismiss the indictment, asserting
that the indictment’s failure to allege a more specific manner and means of
committing the offense violated her due process right to be fairly informed of the
charge against her. Appellee further asserted that the omission of a specific
manner-and-means allegation exposed her to double jeopardy,
4
and she requested
that the indictment be quashed “in the interests of justice.”
2 See TEX. PENAL CODE ANN. § 43.05(a)(2), (b).
3 See id. § 43.05(a)(2) (“A person commits an offense [of compelling prostitution by
a minor] if the person knowingly . . . causes by any means a child younger than 18
years to commit prostitution, regardless of whether the actor knows the age of the
child at the time of the offense.”).
4 See U.S. CONST. amend. V; TEX. CONST. art. I, § 14.
3
In its brief in response to appellee’s motion to quash and dismiss the
indictment, the State included additional allegations not stated in the indictment:
On November 3, 2016 Houston Police Officers of the Southwest
Division were conducting a proactive investigation. Officers observed
a vehicle driven by [c]o-[d]efendant Deaundrell Johnson pull into a gas
station located at 3223 South Loop West Harris County, Texas. After
running the temporary tags registered to the vehicle, officers learned
Johnson had possible city warrants. Officers then initiated a traffic stop
on the vehicle and observed [appellee] to be the front passenger of the
vehicle, and minor [complainant] K.O. to be in the back seat. Officers
ran K.O.’s name and learned she was a fifteen[-]year[-]old listed
runaway.
K.O. admitted to [o]fficers that she was prostituting, and
that . . . Johnson and [appellee] knew of her sex dates. Specifically,
K.O. stated she had been with . . . Johnson and [appellee] for a few days
in a hotel room provided by . . . Johnson. K.O. also stated that [Johnson
and appellee] helped her post on Backpage.com, that . . . Johnson
received the money she made from sex dates, and that she used
proceeds from prostitution to buy [Johnson and appellee] food.
The State argued in its brief that it was not required to allege a specific manner and
means of compelling prostitution because Texas Penal Code section 43.05 allows
prosecution for the offense of compelling prostitution by a minor regardless of the
means used in order to afford the greatest protection to minors.
At the hearing on appellee’s motion to quash and dismiss the indictment,
appellee argued that the indictment violated her right to due process and her right
against double jeopardy because it lacked specificity, deprived her of the opportunity
to prepare a defense, and violated her right to prevent subsequent prosecution arising
from the same transaction with K.O. To demonstrate the difficulties associated with
4
preparing to defend a charge of compelling prostitution by a minor “by any means,”
appellee asserted that Texas Penal Code section 43.05 could apply equally to the
conduct of a “pimp” who exploits a child for his own profit and to the conduct of a
parent whose runaway child commits the offense of prostitution.5 Appellee further
asserted that, without knowing the specific conduct that the State alleged was
criminal, her trial would be one by ambush.
In response, the State asserted that appellee had fair notice of the alleged
criminal conduct not only from the allegations in the indictment but also because
appellee had access to the State’s entire file and the State had specified its factual
theory in other pretrial filings, including its brief in response to appellee’s motion to
quash and dismiss the indictment.
The trial court granted appellee’s motion to quash and dismiss the indictment
without stating the reason for its ruling.
Standard of Review
Our review is de novo because the sufficiency of the indictment is a question
of law. Smith v. State, 309 S.W.3d 10, 13–14 (Tex. Crim. App. 2010). We will
5 Before trial, appellee also moved to declare Texas Penal Code section 43.05(a)(2)
unconstitutional, arguing that it was vague because it lacked a definition for “by any
means” rendering the statute ambiguous and making it “impossible to prepare an
adequate defense.” The trial court denied appellee’s motion and that ruling is not
before the Court in this appeal.
5
uphold the trial court’s ruling if it is correct under any theory of law applicable to
the case. See State v. Zuniga, 512 S.W.3d 902, 906 (Tex. Crim. App. 2017).
Sufficiency of Indictment
In its first, second, and third issues, the State argues that the trial court erred
in granting appellee’s motion to quash and dismiss the indictment because the
indictment sufficiently informed appellee of the nature of the accusations against
her, the indictment was not so vague as to violate her right against double jeopardy,
and the indictment should not be quashed in the “interests of justice.”
A. Adequate Notice
In its first issue, the State arguesthat the trial court erred in granting appellee’s
motion to quash and dismiss the indictment because the allegations in the indictment
tracked the statutory language in Texas Penal Code section 43.05(a)(2), adequately
informed appellee of the criminal charge against her, and even if the indictment
standing alone was legally insufficient, the State had informed appellee of the
criminal charge against her by other means.
A person accused of a crime is constitutionally entitled to notice of the charge
against her as a matter of due process. State v. Ross, 573 S.W.3d 817, 820 (Tex.
Crim. App. 2019). The indictment must be specific enough to inform the defendant
of the nature of the accusations against her so she may prepare a defense. State v.
Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); see alsoTEX.CODE CRIM. PROC.
6
ANN. art. 21.03 (“Everything should be stated in an indictment which is necessary
to be proved.”); id. art. 21.11 (“An indictment shall be deemed sufficient which
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 . . . .”).
Generally, an indictment that tracks the language of the statute will satisfy the
notice requirements; the State need not allege facts that are merely evidentiary in
nature. See Moff, 154 S.W.3d at 602; State v. Mays, 967 S.W.2d 404, 406 (Tex.
Crim. App. 1998). An indictment must go beyond the statutory language only when
the statute is not “completely descriptive of the offense.” Haecker v. State, 571
S.W.2d 920, 921 (Tex. Crim. App. [Panel Op.] 1978). The statutory language is not
completely descriptive of the offense if the prohibited conduct is statutorily defined
to include more than one manner or means of commission. State v. Barbernell, 257
S.W.3d 248, 251 (Tex. Crim. App. 2008). The statutory language also fails to be
completely descriptive of the offense when it uses an undefined term of
indeterminate or variable meaning. Mays, 967 S.W.2d at 407. In such cases, a more
specific pleading is required to provide adequate notice to the defendant. Barbernell,
257 S.W.3d at 251.
7
When analyzing whether an indictment provides adequate notice, an appellate
court engages in a two-step analysis. See State v. Jarreau, 512 S.W.3d 352, 354–55
(Tex. Crim. App. 2017); see also Barbernell, 257 S.W.3d at 255. First, the court
must identify the elements of the offense. Jarreau, 512 S.W.3d at 354. Second, the
court must consider whether the statutory language is sufficiently descriptive of the
charged offense. Id.
The elements of compelling prostitution by a minor are: (1) knowingly
causing by any means, (2) a person younger than eighteen years old, (3) to commit
prostitution.
6
TEX. PENAL CODE ANN. § 43.05(a)(2). This is not a case in which the
statutory language fails to be completely descriptive of the offense because the
prohibited conduct is defined to include more than one manner or means of
commission. See Barbernell, 257 S.W.3d at 251. Texas Penal Code section
43.05(a)(2) does not specify any means of compelling prostitution by a minor, let
alone multiple means. Rather, it provides that the act of compelling a minor to
commit prostitution may be committed “by any means.” TEX. PENAL CODE ANN.
§ 43.05(a)(2) (emphasis added).
This Court determined in Hill v. State, 265 S.W.3d 539 (Tex. App.—Houston
[1st Dist.] 2008, pet. ref’d), that section 43.05(a)(2) sets out a result-of-conduct
6 Appellee does not appear to dispute that the indictment alleges the elements of the
offense of compelling prostitution by a minor as set out in Texas Penal Code section
43.05(a)(2).
8
offense in which the nature of the conduct is inconsequential to the commission of
the offense. 265 S.W.3d at 543. In doing so, we explained that “[w]hat matters is
that the conduct is done with the required culpability to effect the result that the
Legislature has specified.” Id. at 542. The holding in Hill leads us to conclude that
the means of committing this result-of-conduct offense are not essential elements of
compelling prostitution by a minor but instead are evidentiary facts that need not be
alleged in the indictment.
Our conclusion is supported by the Dallas Court of Appeals’ decision in Tubbs
v. State, 670 S.W.2d 407 (Tex. App.—Dallas 1984, no writ). In that case, the
defendant was charged with the felony offense of compelling prostitution by a
minor. 670 S.W.2d at 408. The indictment read, in pertinent part, that the defendant
“knowingly cause[d] [the minor complainant], a person younger than 17 years of
age, to commit prostitution.” Id. On appeal, the defendant argued that the
indictment was insufficient because it alleged neither the means by which he caused
the minor to commit prostitution nor that he had caused the minor to commit
prostitution by any means. Id. The court of appeals rejected the defendant’s
argument, reasoning that “because an offense occurs if a defendant compels
prostitution regardless of the means used to compel the prostitution, it logically
follows that an indictment is not fundamentally defective for failing to describe the
specific means used.” Id. (emphasis added).
9
Appellee asserts that even if the indictment accurately states the elements of
the offense, it still does not fairly inform her of the criminal charge against her
because the statutory language is so vague or indefinite as to deny her effective
notice of the criminal conduct she is alleged to have committed. In support of this
assertion, appellee relies on Moff. In that case, the defendant—the chief appraiser
of Nueces County, Texas—was alleged to have misapplied money and credit cards
over a seven-year period. 154 S.W.3d at 600. After he was indicted for the offense
of misapplication of fiduciary funds, the defendant filed a motion to quash the
indictment for failing to specify which transactions formed the basis of the
indictment. Id. The trial court granted the defendant’s motion to quash, but the
intermediate appellate court reversed. Id. The Court of Criminal Appeals granted
review and reversed the intermediate appellate court’s decision, explaining:
It is unreasonable to require the defendant to gather evidence and
prepare a defense for each of the credit card and cash transactions he
made during the seven-year time frame of the indictment. Thus,
additional information that is reasonably necessary for the defense to
prepare its case must be provided. This is not to say that the State must
lay out its case in the indictment, only that the defendant must be
informed of the specific transactions that allegedly violate the
statute. . . . [T]his due process requirement may be satisfied by means
other than the language in the charging instrument.
Id. at 603 (internal quotations omitted). Based on this reasoning, the Court of
Criminal Appeals held “the trial court did not err in quashing the indictment because
10
the State failed to give [the defendant] sufficiently specific notice of the particular
act or acts with which he [was] charged.” Id.
The particular facts of this case are not analogous to those in Moff. Although
we can imagine a case in which an indictment for the offense of compelling
prostitution by a minor might be vague or indefinite because it alleges, for example,
criminal conduct occurring over a long period of time or pertaining to multiple
complainants, that is the not case here. The time frame alleged in this indictment is
far shorter than in Moff. The indictment alleges that the offense occurred on or about
November 3, 2016; not over the course of several years or even months. The
indictment also identifies the sole minor complainant, K.O., whom appellee
allegedly compelled to commit prostitution. And appellee does not dispute that she
knows K.O.’s identity. Cf. King v. State, 594 S.W.2d 425, 427 (Tex. Crim. App.
1980) (name of person at whom aggravating conduct is directed in felony-murder
case not essential element of offense “but rather, a fact which is crucial to the
accused’s preparation of his defense”). Thus, appellee is aware from the indictment
that she will have to contend with the allegations that she knowingly caused K.O., a
known complainant, to commit prostitution. Also, because appellee knows when
and where the offense is alleged to have occurred, she can begin to think
productively about the kind of evidence she might want to marshal. See Ross, 573
S.W.3d at 828 (holding information that was completely descriptive of offense and
11
stated everything required to be proved in ordinary and concise terms gave defendant
constitutionally sufficient notice).
In addition, as the Court of Criminal Appeals noted in Moff, we need not look
solely at the language of the indictment when analyzing whether appellee received
constitutionally sufficient notice of the offense. See 154 S.W.3d at 603; see also
Smith v. State, 297 S.W.3d 260, 267 (Tex. Crim. App. 2009); Buxton v. State, 526
S.W.3d 666, 682 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). The notice
requirement “may be satisfied by means other than the language in the charging
instrument.” Kellar v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003); see also
TEX. CODE CRIM. PROC. ANN. art. 21.19 (“An indictment shall not be held
insufficient, nor shall the trial, judgment or other proceedings thereon be affected,
by reason of any defect of form which does not prejudice the substantial rights of
the defendant.”).
The State indicated at the motion-to-quash hearing that at trial it will “attempt
to prove that [appellee] was showing [K.O.] how to use Backpage[.com] as well as
providing a room for her and taking the money that [K.O.] was earning from
prostitution to purchase food.” This theory of criminal liability is reflected in the
State’s pretrial filings, including in the State’s brief in response to appellee’s motion
to quash and dismiss the indictment and the State’s notice of intention to use
extraneous offenses and prior convictions. The extraneous offenses notice
12
specifically informs appellee of the State’s allegations that she, among other things,
“managed a prostitution enterprise by causing by any means K.O., a person younger
than eighteen years of age, to take explicit photographs [and] then post[] the
photographs depicting explicit poses with an advertisement on [B]ackpage.com.”
The State also filed pretrial notices of its intention to use the business records of four
specifically identified motels. And the record indicates that appellee’s trial counsel
interviewed K.O. and received the State’s entire file, including all of the State’s
discovery.
We conclude that the State’s various pretrial filings, considered together with
the indictment’s allegations that the offense of compelling prostitution by a minor
occurred on or about November 3, 2016 and involved a single complainant whose
identity is known to appellee, is adequate notice of the State’s theory of criminal
liability so that appellee can prepare a defense. See Buxton, 526 S.W.3d at 683
(holding, in continuous-sexual-abuse-of-child case, defendant had ample notice of
charge when indictment was considered together with criminal complaint, probable
cause affidavit, and State’s notices of intention to use outcry statements and
extraneous offenses); State v. Stukes, 490 S.W.3d 571, 577 (Tex. App.—Houston
[14th Dist.] 2016, no pet.) (holding, in continuing-family-violence case, defendant
“had ample notice in addition to that provided by the indictment” when State had
provided defendant’s counsel with offense reports and videotapes regarding two
13
predicate assaults). We hold that the trial court erred in granting appellee’s motion
to quash and dismiss the indictment because the indictment did not provide appellee
with adequate notice.
We sustain the State’s first issue.
B. Double Jeopardy
In its second issue, the State argues that the trial court erred in granting
appellee’s motion to quash and dismiss the indictment because appellee’s assertion
that the indictment is so vague as to violate her right against double jeopardy7
is not
ripe until the State initiates a subsequent prosecution against appellee. In response,
appellee asserts that she should not be required to “wait to make [her
double-jeopardy] argument at the point she is charged again and again with the same
charge, since the words ‘by any means’ could open her up to multiple potential
charges all arising out of the same transaction.” We agree that appellee’s
double-jeopardy complaint is premature.
The Court of Criminal Appeals addressed a similar argument in Burks v. State,
876 S.W.2d 877 (Tex. Crim. App. 1994). There, the defendant moved to quash the
indictment alleging that he had committed the offense of capital murder. 876 S.W.2d
7 See U.S. CONST. amend. V (“[N]or shall any person be subject for the same offence
to be twice put in jeopardy or life or limb[.]”); TEX. CONST. art. I, § 14 (“No person,
for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a
person be again put upon trial for the same offense, after a verdict of not guilty in a
court of competent jurisdiction.”).
14
at 889. The defendant asserted that the indictment failed to allege the complainant
in the underlying robbery offense and this “denied him adequate notice of the
charges against him and denied him the right to claim prior jeopardy or double
jeopardy in a subsequent prosecution.” Id. The Court of Criminal Appeals declined
to address the defendant’s double-jeopardy argument, stating:
In regard to any potential claim of jeopardy which [the defendant]
might have to assert in a future prosecution, the proper time to argue
this issue is after he has been charged or indicted for that unnamed
future offense. As of now, that issue is far from ripe. It is not properly
before this Court in the instant appeal.
Id.
Applying this holding, this Court declined in Buxton to consider the
defendant’s premature double-jeopardy challenge to an allegedly vague indictment.
See 526 S.W.3d at 684–85. In Buxton, the jury convicted the defendant of the
offense of continuous sexual abuse of a child, and the defendant asserted that the
failure of the indictment to allege “which predicate offenses of aggravated sexual
assault the State [had] charged him with” denied him the right to claim double
jeopardy in a future prosecution for the offense of aggravated sexual assault based
on one of the acts of abuse committed against the complainant. Id. After noting that
there was no indication in the record, and no argument, that the State had initiated a
subsequent prosecution for the offense of aggravated sexual assault and that the
defendant’s argument concerned only a future possibility, this Court declined to
15
consider the defendant’s double-jeopardy complaint. Id. at 685. The Court stated
that the issue could be raised if the State later undertook such a prosecution, but
because the State had not done so, the issue was not ripe for the Court’s
consideration. Id.
The same result must be reached here. There is no indication in the record,
and appellee makes no argument, that the State has initiated a second prosecution
based on any act allegedly compelling prostitution by K.O. Instead, appellee makes
the same argument that we rejected as premature in Buxton—that the lack of
specificity in the indictment allows the State to undertake such a prosecution at some
point in the future. See id. Because the State has not done so, however, appellee’s
double-jeopardy complaint is not ripe. Thus, we hold that the trial court erred in
granting appellee’s motion to quash and dismiss the indictment on a double-jeopardy
basis. See id.
We sustain the State’s second issue.
C. Interests of Justice
In its third issue, the State argues that the trial court erred in granting
appellee’s motion to quash and dismiss the indictment because the “interests of
justice” do not require such a decision.
In her motion to quash and dismiss the indictment, appellee requested that the
indictment be quashed “in the interests of justice.” According to appellee, the
16
“interests of justice” required “the State to allege a specific manner and means to not
only provide [her with] adequate notice of the offense for which she is charged, but
additionally to prevent a further prosecution in violation of the [d]ouble [j]eopardy
clauses of both the United States and Texas Constitutions.” On appeal, appellee
argues that the trial court properly granted her motion to quash and dismiss the
indictment because the “State would not only have [appellee] figure out on her own
what the exact allegations are against her with zero notice[] but open her up to any
number of [d]ouble [j]eopardy violations” and there is “no justice in that.”
Because the only reasons given in support of quashing and dismissing the
indictment in the interests of justice in the trial court and on appeal are the same
due-process and double-jeopardy reasons that we have already rejected, we hold that
the trial court erred in granting appellee’s motion to quash and dismiss the
indictment because the “interests of justice” so required.
We sustain the State’s third issue.

Outcome: We reverse the January 29, 2019 order of the trial court granting appellee’s
motion to quash and dismiss the indictment. We remand the case to the trial court
for further proceedings consistent with this opinion.

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