CLINTON, Judge.
These are appeals from convictions for prostitution, which were consolidated by order of this Court. Punishment assessed in each case was a fine of $500.00 and a jail term of 30 days.
In Cause No. 65,365, the information alleged that appellant did,
"knowingly offer and agree to engage in, and engage in, sexual conduct with T.L. Keen for a fee."
The information in Cause No. 65,498 alleged that appellant did,
"in a public place knowingly solicit A.F. Rossi to engage with [her] in sexual conduct for hire."
In each cause appellant timely filed motions to quash the charging papers — in these cases, informations based upon complaints — which were overruled by the trial court prior to trial. On appeal she contends that this action constituted reversible error in both causes.
In Cause No. 65,365, appellant was convicted in a jury trial on December 3, 1979; in Cause No. 65,498, appellant entered a plea of guilty on December 4, 1979.
In her motions to quash, appellant complained that the charging instruments failed to specify the type of "sexual conduct" she was alleged to have offered, agreed to, engaged in and solicited, respectively; thus, she was not apprised of the illegal conduct for which she was to be prosecuted, and was thereby deprived of facts necessary to preparation of her defenses.
The penal code subchapter under which appellant was prosecuted in these cases, provides in V.T.C.A. Penal Code, Section 43.01, that:
"In this subchapter:
(1) 'Deviate sexual intercourse' means any contact between the genitals of one person and the mouth or anus of another person.
* * * * * *
(3) 'Sexual contact' 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.
(4)
'Sexual conduct' includes deviate sexual intercourse, sexual contact, and sexual intercourse.
(5) 'Sexual intercourse' means any penetration of the female sex organ by the male sex organ."
Readily then, it can be seen that the prohibited acts alleged by the State to have been engaged in or solicited by appellant — "sexual conduct" — may, by statute, consist of either "deviate sexual intercourse," "sexual contact," or "sexual intercourse" as those terms are defined.
We are constrained to agree with appellant, that the factual elaboration sought by her motions to quash was information to which she was entitled upon her timely written requests therefor. Ferguson v. State, 622 S.W.2d 846 (Tex.Cr.App., on State's motion for rehearing); Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App. 1977).
The State urges that the holding of Martinez v. State, 500 S.W.2d 151 (Tex.Cr.App. 1973) supports its position that no error attended the denial of appellant's motions to quash. But in Martinez, supra, the appellant first raised his "notice" exception to the indictment on appeal, a point in the process at which none but those defects which operate to deprive the trial court of jurisdiction over the cause ab initio, will be considered for the first time. American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App. 1974).
It is firmly established that a properly asserted exception to a charging instrument on the ground of inadequate notice, requires the trial court's, as well as our, consideration of the allegations contained therein from the perspective of the accused. See generally King v. State, 594 S.W.2d 425 (Tex.Cr.App. 1980); Cruise v. State, 587 S.W.2d 403 (Tex.Cr.App. 1979); and Drumm, supra. Viewed in this light, should the court find that the accused is forced to "guess" as to the specific charge about which he complains, the very circumstances are presented under which his exception must be sustained. Id.
This criterion by which the merit of a motion to quash may be measured was stated another way in Cruise, supra, at 404:
"We believe it unnecessary in our inquiry to go beyond the prescription of Art. 21.03, V.A.C.C.P., that 'everything should be stated in an indictment which is necessary to be proved.' We fail to see in what manner the State might hope to prove to the jury beyond a reasonable doubt that appellant [committed the conduct alleged] without adducing facts that described the way in which he did so."
It is for this reason that we also reject the State's contention that appellant herein would be protected against a second prosecution for the same offenses, since a person pleading former acquittal or conviction may later allege and prove facts which show the identity of the offense to be one for which he has already stood in jeopardy. While what the State says is true, when a sufficient exception to the allegations is asserted pretrial, the accused is entitled at that point to have the face of the State's pleading aver facts which will " precisely distinguish the conduct alleged from other conduct by the accused, and thereby insure a bar to a subsequent prosecution for the same offense. Article 21.04, V.A.C.C.P." King, supra, 594 S.W.2d at 427.
See Luna v. State, 493 S.W.2d 854 (Tex.Cr.App. 1973).
We hold that appellant's motions to quash entitled her to the allegation of facts sufficient to bar subsequent prosecutions for the same offenses and sufficient to give her precise notice of the offenses with which she was charged. King, supra, Cruise, supra.
For the trial court's errors in this regard, the judgments of conviction are reversed, the informations, as well as the prosecutions thereon, are dismissed.
Before the Court en banc.
OPINION ON STATE'S MOTION FOR REHEARING
TOM G. DAVIS, Judge.
Appeal is taken from a conviction for prostitution. V.T.C.A. Penal Code, Sec. 43.02(a)(1). Following her plea of guilty, the court assessed appellant's punishment at 30 days and $500.00.
In her sole ground of error, appellant contends the court erred in failing to grant her motion to quash the information in this cause. The information alleges in pertinent part that on October 2, 1979, appellant did:
". . . knowingly offer and agree to engage, and engage in, sexual conduct with T.L. Keen for a fee."
The motion to quash complained that the information was insufficient to give appellant notice of the offense with which she was charged due to the numerous meanings of the term "sexual conduct." See V.T.C.A. Penal Code, Sec. 43.01(4). On original submission, a panel of this Court concluded that the trial court erred in overruling appellant's motion to quash.
In Craven v. State, 613 S.W.2d 488, this Court considered whether a defendant who pleads guilty may complain on appeal of the overruling of a motion to quash. There, it was stated:
". . . in earlier times the
Helms rule would mandate our finding that appellant has waived 'all nonjurisdictional defects' in the proceedings below,
Helms v. State, 484 S.W.2d 925, 927 (Tex.Cr.App. 1972).
"However, since
Helms, supra, the Legislature has added a proviso to the Article 44.02, V.A.C.C.P. that 'abrogated this rule regarding the effect of a guilty plea in cases of plea bargains before the court,' thereby superceding 'the prior case law as stated in
Helms, supra.'
Ferguson v. State, 571 S.W.2d 908, 910 (Tex.Cr.App. 1978). Therefore, we must first determine
whether our review of the single ground of error is authorized by the Article 44.02 proviso or is circumscribed by the
Helms rule. That determination turns, of course, on whether there was a plea bargain honored by the trial court." Id. at 489.
In Craven, the Court ultimately concluded that the record revealed that the guilty plea was the result of a plea bargain. It was therefore stated that under Art. 44.02, supra, the defendant could appeal from an adverse ruling on his motion to quash.
The record in the instant case reveals as follows:
"THE COURT: You are charged with prostitution, how do you plead to that guilty or not guilty?
"MS. KASS: Guilty.
"THE COURT: Are you pleading guilty because you are guilty and for no other reason?
"MS. KASS: Yes, sir.
"THE COURT: Recommendation?
"MR. BEERS: 30 days confinement in jail and a five hundred dollar fine.
"THE COURT: On your plea of guilty, the Court finds you guilty and assesses your penalty a 30 days in jail, five hundred dollar fine plus cost of Court."
In Rodriguez v. State, 509 S.W.2d 319 (Tex.Cr.App.), this Court stated that the question of whether a guilty plea is the result of a plea bargain, is a question of fact to be determined from evidence presented at trial. See King v. State, 511 S.W.2d 32 (Tex.Cr.App.). In those cases in which this Court has considered a negotiated plea, there has been evidence in the record to support the finding that plea bargaining occurred. See Miller v. State, 608 S.W.2d 931 (Tex.Cr.App.); Carter v. State, 608 S.W.2d 691 (Tex.Cr.App.); Bass v. State, 576 S.W.2d 400 (Tex.Cr.App.).
The record in the instant case reveals that the prosecutor recommended a certain punishment and that the recommendation was followed by the court. However, there is nothing in the record to suggest that the recommendation had been agreed upon by the prosecutor, appellant and her attorney as the result of a plea bargain. We thus conclude that the record fails to reflect the existence of a plea bargain.
Since the record fails to reflect that the plea in the instant case was the result of a negotiated plea bargain, appellant's plea of guilty waived her right to complain of the court's action in overruling the motion to quash. Craven v. State, supra. Nothing is presented for review.
The State's motion for rehearing is granted and the judgment is affirmed.
ROBERTS and TEAGUE, JJ., dissent.
TOM G. DAVIS, Judge.
Appeal is taken from a conviction for prostitution. V.T.C.A. Penal Code, Sec. 43.02(a)(2). After finding appellant guilty, the jury assessed punishment at 30 days and a fine of $500.00.
While we reverse for failure of the trial court to sustain the motion to quash, appellant's contention that the evidence is insufficient to support the conviction necessitates our review of this question. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1.
In her second ground of error, appellant challenges the sufficiency of the evidence to support her conviction. She maintains the State failed to prove "the 'sexual contact' with the complaining witness was with the intent to arouse or gratify the sexual desires of another."
A.F. Rossi testified that he was with the vice division of the Harris County Sheriff's Office. On October 2, 1979, Rossi met appellant at Models Galore in Houston. Appellant informed Rossi that the basic fee was $35.00 for a thirty minute "rap session." Appellant also told Rossi that she worked off tips in the back room. With regard to his discussion of the tips with appellant, Rossi testified as follows:
"A. Yes sir. She said that for twenty-five dollars I could do to myself what she was going to do to me.
"Q. Did you ask her what that meant?
"A. Yes, I did.
"Q. What did she reply if anything?
"A. I told her that for the twenty-five dollars she was going to masturbate me. She said yes, but I didn't say that, you did. That is about the size of it.
". . .
"Q. She quote you any other prices?
"A. Yes sir. She said that the other price was fifty dollars and I asked her what was that for screwing and she said yes, how much can you spend. I told her that I wasn't going to spend that much.
"Q. By the word screwing, did you mean sexual intercourse?
"A. Yes sir.
"Q. She agreed with you?
"A. Yes sir."
Appellant was convicted for prostitution under the terms of Sec. 43.02(a)(2), supra, which provides:
"(a) A person commits an offense if he knowingly:
". . .
"(2) solicits another in a public place to engage with him in sexual conduct for hire."
With regard to the definitions of various terms within the prostitution subchapter, Sec. 43.01(1)(3)(4)(5), supra provides:
"In this subchapter:
"(1) 'Deviate sexual intercourse' means any contact between the genitals of one person and the mouth or anus of another person.
". . .
"(3) 'Sexual contact' 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.
"(4) 'Sexual conduct' includes deviate sexual intercourse, sexual contact, and sexual intercourse.
"(5) 'Sexual intercourse' means any penetration of the female sex organ by the male sex organ."
The information herein alleged solicitation to engage in sexual conduct for hire. Rossi's testimony established that he and appellant discussed two forms of sexual conduct, namely sexual contact and sexual intercourse. The definition of the term sexual intercourse does not by statute include the intent to arouse or gratify the sexual desire of any person. In its charge to the jury, the court used the term sexual conduct.
When this Court reviews the sufficiency of the evidence, it will consider the evidence in the light most favorable to the jury's verdict. The State thus proved solicitation to engage in a form of sexual conduct, sexual intercourse, which does not statutorily include the intent to arouse or gratify the sexual desire of any person. We find the evidence sufficient to support appellant's conviction.
In her first ground of error, appellant contends the court erred in failing to grant her motion to quash the information in this cause. The information alleges in pertinent part that on October 2, 1979, appellant did:
". . . in a public place knowingly solicit A.F. Rossi to engage with the Defendant in sexual conduct for hire."
The motion to quash complained that the information was insufficient to give appellant notice of the offense with which she was charged due to the numerous statutory meanings of the term "sexual conduct." See V.T.C.A. Penal Code, Sec. 43.01(4). On original submission, a panel of this Court concluded that the trial court erred in overruling appellant's motion to quash.
It is necessary to reexamine the panel's conclusion in light of our opinions in Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.) and Ferguson v. State, 622 S.W.2d 846 (Tex.Cr.App.). In Thomas, the defendant filed a motion to quash his theft indictment. The motion complained that the terms "owner" and "without effective consent" were vague and indefinite due to the numerous statutory meanings of the terms. This Court found no error in the court overruling the motion to quash because the information sought was essentially evidentiary. It was further held that the terms "owner" and "effective consent" are not vague and indefinite because they are statutorily defined. Finally, the Court noted that the term "owner" did not go to an act or omission of the defendant.
In Ferguson, the defendant maintained the court erred in denying his motion to quash an indictment alleging the delivery of heroin. The defendant argued that he was entitled to notice of which type of delivery the State would rely upon to prove the allegations of the indictment. This Court found that the court erred in denying the motion to quash and stated:
"In the present case, while 'delivery' is statutorily defined, the statute does not present a single definition. Rather, the definition allows three different and distinct ways of establishing the accused's criminal conduct. This is not like the situation of requesting the type of 'owner' to be alleged, for in that situation, as was stated above, the specific allegation would not affect the defendant's defense preparations. Here, however, 'delivery' is the very heart of the offense. Which type of 'delivery' the State will attempt to prove would be critical to the appellant's defense. The 'delivery' is the act by the appellant which constitutes the criminal conduct.
". . . it is clear that even though an act or omission by a defendant is statutorily defined, if that definition provides for more than one manner or means to commit that act or omission, then upon timely request, the State must allege the particular manner or means it seeks to establish."
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. Under such circumstances the information will be dismissed. See Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.).
The State's motion for rehearing is denied.
TEAGUE, J., concurs in result.
DALLY, J., dissents.