737 SW2D 379 - Laverne v. State

How this case has been cited

Cited by 4 later decisions — most recently April 2016

4 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1Stephen Miller, San Antonio, for appellant.

¶2Sam Millsap, Jr., Former Criminal Dist. Atty., Fred G. Rodriguez, Criminal Dist. Atty., Mark Dowd, Mary Lou Castillo, Charles Estee, San Antonio, for appellee.

¶3Before CADENA, C.J., and DIAL and CHAPA, JJ.

¶4

OPINION

¶5PER CURIAM.

¶6Appellant was convicted of prostitution and sentenced to forty days' confinement in the county jail.

¶7The evidence shows that appellant offered to commit a deviate sexual act upon Officer Scaramozi and then asked how much money Scaramozi had. Scaramozi told appellant that he had forty dollars and appellant replied, "that is enough." Such evidence is sufficient proof of an offer to engage in sexual conduct for a fee. Robinson v. State,643 S.W.2d 141 (Tex.Crim.App.1982).

¶8We agree, however, that the trial court erred by denying appellant's motion to quash. The information filed in this cause alleged that appellant knowingly and unlawfully offered "to engage Don Scaramozi in sexual conduct, namely: deviate sexual intercourse."

¶9The offense of prostitution encompasses an offer to engage in sexual conduct, which is defined to include "deviate sexual intercourse." TEX.PENAL *380 CODE ANN. § 43.01(1) (Vernon 1974). Deviate sexual intercourse is defined as "any contact between the genitals of one person and the mouth or anus of another person." TEX.PENAL CODE ANN. § 43.01(4) (Vernon 1974). When an offense is statutorily defined to include more than one means of commission, a defendant is entitled to specific information alleging which means of committing the offense the State intends to prove. Ferguson v. State,622 S.W.2d 846 (Tex.Crim.App.1981). 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 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); Contra, Lozano v. State,650 S.W.2d 137, 138 (Tex.App.Houston [14th Dist.] 1983, no pet.).

¶10The decision of the trial court is reversed and the information is dismissed.

¶11DIAL, Justice, dissenting.

¶12I 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.).