Opinion
NO. PD-0099-23
03-27-2024
Jemadari Chinua WILLIAMS, Appellant v. The STATE of Texas
Stephen B. Harpold, Kerrville, for State. Mark Bennett, Houston, Jemadari Chinua Williams, for Appellant.
ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS KERR COUNTY
Stephen B. Harpold, Kerrville, for State.
Mark Bennett, Houston, Jemadari Chinua Williams, for Appellant.
Keller, P.J., delivered the opinion of the Court in which Hervey, Richardson, Keel, Slaughter and McClure, JJ., joined.
Appellant’s indictment alleged all of the statutory methods of committing the offense of aggravated promotion of prostitution. He filed a motion to quash, alleging that the State was required to specify which of several alternative ways of committing the offense the State would rely upon. Quoting from State v. Ross, the court of appeals concluded that the State was required, upon timely request by the defense, to modify the indictment to allege which of the statutory methods the State sought to establish. We conclude that the court of appeals erred. The State is not required to elect between alternative statutory methods of committing an offense alleged in an indictment.
573 S.W.3d 817 (Tex, Crim. App. 2019).
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.
I. BACKGROUND
A. Trial
Appellant was indicted for aggravated promotion of prostitution. The indictment alleged that he "did then and there knowingly own, invest, in, finance, control, supervise, or manage a prostitution enterprise that used at least two prostitutes," This indictment tracked the language of the statute.
See Tex, Penal Code § 43.04.
Tex. Const. art. I, § 10.
Emphasis added.
Tex. Code Crim. Pro. Ann. art. 21.02.
Id. § 43.04(a) ("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,") (emphasis added).
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).
Appellant filed a pretrial motion to quash, arguing that the indictment failed to notify him which of the six possible methods of committing aggravated promotion of prostitution he was charged with. In his motion, he claimed that "when a statute defines the manner or means of commission in several alternative ways, an indictment will fail for lack of specificity if it does not identify which of the statutory means it addresses."
The motion also argued that the statutory terms themselves needed to be defined. It contended that this was true because some of the terms can have the same meaning in ordinary usage ("invest in" or "finance"; "control," "supervise," or "manage") and needed to be defined further to comport with the "specific reason" the legislature included the term so as to give Appellant adequate notice.
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").
During argument in the trial court, defense counsel acknowledged that the words comprising the six methods of committing the offense "can be very interchangeable." He nevertheless argued that the State needed to "narrow this down and specify which manner and means out of the six possible options," Defense counsel continued:
Does he own it? Does he control it? Does he supervise it or does he manage it? Or is it all of the above? They don’t state that, and that lacks specificity for my client to be able to defend against this indictment sufficiently.
Emphasis added.
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").
Defense counsel concluded, "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’s fundamentally unfair to my client." Defense counsel never claimed in the motion to quash or in argument before the trial court that the six methods of committing aggravated promotion of prostitution were separate offenses.
Defense counsel also argued, consistent with his motion, that the interchangeability of some of the statutory terms in ordinary language meant that the terms should be defined further.
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.").
The State responded that the indictment tracked the statutory language. The trial court denied the motion to quash, and Appellant was convicted.
B. Appeal
Appellant represented himself on appeal. One of his claims was that the trial court erred in denying the motion to quash. Omitting citations, the following is his entire argument:
Everything should be stated in an indictment which is necessary to be proved. The office and purpose of an indictment are to notify one of the offenses with which he is charged and the elements thereof, that he may properly prepare his defense. A defendant’s right to notice undergirds the indictment requirements. An indictment that fails to specify the manner and means of committing the offenses is subject to a motion to quash. Nothing must be left to inference, or intendment, nor can it be added by intendment, and an "open-file" policy does not remedy deficiencies in an indictment. In a long line of cases, Texas courts have held that when the legislature defines the commission of an offense by more than one means, then the State is obliged to go beyond merely tracking the statutory language and specify in the charging instrument which of those means it intends to prove at trial, in order to satisfy the notice requirement. Where the State failed to specify which of the six means of committing the offense in its indictment, the trial court erred in denying Appellant’s motion to quash.
* * *
A motion to quash must be granted if the facts sought are essential to giving notice to the defendant of the acts or omissions charged. A pleading will supply adequate notice only if, in addition to setting out the elements of the offense, it also alleges specific manner and means of commission that the State intends to rely on at trial. Appellant’s motion to quash should have been granted.
Appellant’s initial brief to the court of appeals.
Id. at 848.
Appellant’s reply brief to the court of appeals.
Id. at 851.
As may be seen, Appellant’s argument referred to the "manner and means" and the "six means" of committing the offense. Appellant did not claim that the six methods of committing aggravated promotion of prostitution were separate offenses.
In response, the State again argued that the indictment tracked the language of the statute. And the State argued, "Because it included all six possible manner and means of committing the aggravated promotion of prostitution, the indictment gave sufficient notice to Appellant such that he could prepare a defense."
In addressing Appellant’s claim, the court of appeals quoted the following maxim from Ross: "[I]f the prohibited conduct is statutorily defined to include more than one manner or means of commission, then the State must, upon timely request, allege the particular manner or means it seeks to establish." The court of appeals construed that maxim to mean that the State had to pick one of the methods allowed by statute and alleged in the indictment. It so held solely as a matter of notice and did not hold that the different statutory methods of commission were different offenses. Concluding that the trial court should have granted Appellant’s motion to quash, the court of appeals reversed the conviction and remanded the case with instructions to dismiss the indictment.
Williams v. State, 668 S.W.3d 59, 66 (Tex. App.—San Antonio October 19, 2022) (op. on mot. for reh’g) (quoting Ross, 573 S.W.3d at 820).
Id.
Id. at 66-67 ("We conclude the prohibited conduct in section 43.04(a) is statutorily defined to include more than one manner or means of commission; that is, one can commit the offense by owning, investing in, financing, controlling, supervising, or managing a prostitution enterprise …. [B]ecause section 43.04(a) is statutorily defined to include more than one manner or means of commission, the statutory language is not ‘completely descriptive’ of the offense, and the trial court should have granted Williams’s motion to quash.").
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.").
Id. at 66.
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 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).
Id. at passim.
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.").
Id. at 68-69.
7 R.R. 21.
II. ANALYSIS
A. Separate offenses
[1] Understanding the State’s brief to implicitly raise the issue, Appellant argues in his brief that the six methods of committing aggravated promotion of prostitution are separate offenses. But he did not raise this claim at the trial court or in the court of appeals. To the contrary, his claim before both courts treated the six methods as alternative manners and means, and his argument was that there was a notice problem with the indictment not being specific enough. Because he did not timely raise the separate-offenses issue to the trial court (failing in fact, to raise it at all), that issue has been forfeited. Even if it had not been forfeited at trial, the issue is not properly before us because Appellant did not raise it in the court of appeals, and that court did not resolve the issue on its own. Consequently, we will assume that the six methods of committing aggravated promotion of prostitution are alternative methods of committing the same offense.
Tex, Code; Crim. Proc, art. 1.14(b) ("If a defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding."). See also Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990). Contrary to the claim in Judge Yeary’s dissent, Appellant did not raise at trial a claim that the different methods of committing aggravated promotion of prostitution were different offenses. Our conclusion that he failed to do so is not based solely on an isolated reference to "manner and means" but is based on the entirety of his argument to the trial court. The whole thrust of his contention was that the charging instrument was not specific enough, not that it involved the misjoinder of multiple offenses within a single count. And contrary to the dissent’s contention, our holding creates no risk of resolving this case incorrectly or muddling our jurisprudence. Appellant forfeited the claim that the dissent wishes to reach, so reversible error cannot be predicated on that claim. Requiring a court of appeals to address a non-jurisdictional claim that was never before it would seem more likely to muddle our jurisprudence.
Ferguson, 622 S.W.2d at 851.
See Osorio-Lopez v. State, 663 S.W.3d 750, 757 (Tex. Crim. App. 2022) (We generally review only issues addressed by the court of appeals; an exception exists when there is a remaining issue and the proper resolution of that issue is clear); Martell v. State, 663 S.W.3d 667, 672 (Tex. Crim. App. 2022) (An appellee, as the "winner" in the trial court, may raise claims supporting the trial court’s ruling for the first time on discretionary review); Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 2012) ("[A]ppellate courts may review unassigned error—a claim that was preserved in the trial court but was not raised by either party on appeal.’’). Appellant acknowledges that the court of appeals’s discussion assumed that the six methods were simply mere statutory manners that did not create separate offenses. This presents another obstacle to reviewing a "separate offenses" claim. Appellant did not raise this claim on appeal, so the court of appeals had no obligation to address it, and because the court of appeals did not err in failing to address the claim, there is no basis for us to remand the case to it to do so. Judge Yeary’s dissent does not address the fact that the "separate offenses" claim was not raised in the court of appeals.
Id.
B. Specificity of the Indictment Allegations
Turning now to what the court of appeals did decide, we conclude that it misconstrued the quotation in Ross. This is perhaps understandable given how rare it has been for the maxim at issue to decide the outcome of a ease. The statement that the State must specify the particular statutory method on which it will rely appears to be dicta in every case in the last three decades other than in cases that have been overruled. In dicta, the actual proposition of law has been stated loosely. To understand the full context of the maxim, one needs to look at how statutory definitions are generally treated and at how Ferguson v. State developed this maxim as an exception to that treatment.
See Ross, 573 S.W.3d at 821 (observing that the statute at issue "is not statutorily defined to incude more than one manner or means of commission" so "that requirement is not implicated in this case"); State v. Jarreau, 512 S.W.3d 352, 355 (Tex. Crim. App. 2017) (although it said that State must allege the method of delivery, the issue in the case was whether the State had to specify the device or drug definition of "dangerous drug," and it did not); State v. Barbernell, 257 S.W.3d 248, 255-56 (Tex. Crim. App. 2008) (holding that State did not have to allege method of intoxication, overruling State v. Carter, 810 S.W.2d 197 (Tex. Crim. App. 1991) and by implication Saathoff v. State, 891 S.W.2d 264, 266 (Tex. Crim. App. 1994), which followed Carter, and State v. Flores, 896 S.W.2d 198 (Tex. Crim. App. 1995), which followed Saatthoff).
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.
622 S.W.2d 846, 849-51 (Tex. Crim. App. 1981) (op. on State’s mot. for reh’g).
See Ross, 573 S.W.3d at 820 n.15 (citing Saathoff, 891 S.W.2d at 266); Saathoff, 891 S.W.2d at 266 (citing Ferguson, 622 S.W.2d at 851); Ferguson, supra.
[2, 3] When a statutory term or element is further defined by statute, the charging instrument does not ordinarily need to allege the definition. "Typically the definitions of terms and elements are regarded as evidentiary matters." But there is an exception to the general rule when the definition of the statutory term or element includes more than one manner or means of commission. That exception was articulated in Ferguson.
Barbemell, 257 S.W.3d at 251.
Id.
See id. at 251 & n.31; supra at n. 10.
In Ferguson, the indictment alleged that the defendant did "unlawfully, intentionally and knowingly deliver to Jerry Powell, a controlled substance, namely Heroin." The definition of the term "delivery" included "three different and distinct" statutorily possible meanings. But the indictment failed to specify a particular kind of delivery. The Court explained that, when an act or omission is statutorily defined and "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." Then the Court indicated that the indictment would have been fine if all of the manner and means had in fact been alleged:
Id. at 850.
Id. at 849.
Id. at 851.
We are aware of the State’s argument that the State could allege all three types of delivery through disjunctive or conjunctive pleadings. The appellant, they contend, would be on no greater notice in the present case where only "delivery" was alleged. We do not agree …. [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.
Id. (ellipsis and brackets added).
[4, 5] The maxim articulated by Ferguson and later recited by Rom developed as an exception to the general rule that statutory definitions do not have to be included in a charging instrument. Even in that context, it can, at most, require that the State allege more detail in a charging instrument; it would never require the State to abandon a manner and means in the charging instrument. As long as the charging instrument specifies all the manner and means upon which the State is permitted to rely, there is no notice problem.
The judgment of the court of appeals is reversed, and the case is remanded to address Appellant’s remaining points of error.
Yeary, J., filed a dissenting opinion.
Newell, J., filed a dissenting opinion in which Walker, J., joined.
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. 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 113; 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.1a Majority Opinion at 111, 114–15; see 622 S.W.2d 846, 851 (Tex. Crim. App. 1980) (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) 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 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: 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 resolution of any outstanding issue is clear).
Because the Court does not, I respectfully dissent.
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."1b Section 10 of Article 1 of the Texas Constitution states 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."2b Article 21.02(7) of the Code of Criminal Procedure requires that a charging instrument set forth the offense "in plain and intelligible words."3b
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.4b But tracking the language of the statute may be insufficient if the statutory language is not "completely descriptive of an offense."5b 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 manner or means it seeks to establish.6b 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 ease before charging every possible theory.
Notably, we rejected the argument in Ferguson v. Stats that the State can reflexively allege every possible statutory manner and means disjunctively.7b 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.8b The State argued that a defendant would be on no greater notice than if the State had only alleged "delivery" without listing any statutory definitions.9b 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.10b
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.11b 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.12b How is the 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.13b
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 for you to utilize that would make me have to pick which one of those."14b
This was the State’s approach in Ferguson, and we rejected it.15b 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.16b 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.17b 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 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 possi- ble 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.