# Adams v. State > Court of Criminal Appeals of Texas · February 5, 1986 · 707 S.W.2d 900 URL: https://www.frixlaw.com/law-library/cases/9777206 ## Case - **Full name:** Martin Luther ADAMS, Jr., Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** February 5, 1986 - **Citations:** 707 S.W.2d 900; 1986 Tex. Crim. App. LEXIS 1209 - **Precedential status:** Published - **Opinion:** Dissent by Teague - **Judges:** Tom G. Davis - **Cited by:** 270 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9777206 ## How later opinions describe it (automated extraction) - stating that the important question in determining whether a defendant’s substantial rights were prejudiced is whether a defendant had notice adequate to prepare his defense. ## Opinion text TEAGUE, Judge, dissenting. Notwithstanding the fact that the majority opinion gives lip-service to the constitutional and statutory requirements that an accused person is entitled to know from the face of the charging instrument what criminal wrong he is accused of committing, it, nevertheless, holds that in deciding whether a motion to quash the charging instrument has merit, it is no longer necessary to judge the motion solely in light of what the charging instrument states. In order to reach this holding, it is necessary for the majority opinion to expressly overrule this Court’s well-written opinion of Jeffers v. State, 646 S.W.2d 185 (Tex.Cr.App.1983), which is less than three years old. To such holding and action by the majority opinion, I am compelled to file this dissenting opinion. The record reflects that on the day in question an undercover vice officer with the Corpus Christi Police Department went to the place of business operated by Martin Luther Adams, hereinafter referred to as the appellant, and, after the officer obtained a total of sixteen quarters in exchange for four $1 bills, he then viewed two motion pictures in separate coin-operated machines, apparently inserting eight quarters in one machine and eight quarters in the other machine. Later that day, the officer and other members of the police department returned to the place of business where they seized one motion picture from each of the two coin-operated machines in which the undercover officer had put his sixteen quarters. Based upon the above, the appellant was charged with promoting obscenity, “knowing the content and character of certain material, to-wit: one (1) motion picture”, he exhibited the film to the undercover police officer. Prior to trial, the appellant’s attorney, on behalf of the appellant, filed a motion to *906 quash the charging instrument, asserting that because the appellant was not told which movie film he was accused of exhibiting he was entitled to more notice, i.e., the attorney wanted to know exactly which of the two motion pictures that had been seized by the police the State intended to rely on for conviction so that he, the attorney, could adequately prepare a possible defense to the charge. The motion to quash was denied by the trial judge. Prior to going to trial, the appellant was never told which film he was going to be prosecuted for exhibiting to the undercover vice officer. Thereafter, the appellant was tried and convicted by a jury. Of course, while being tried, but much like the jury learned, the appellant learned during the trial which of the two films he was being tried for exhibiting to the undercover vice officer. In Jeffers v. State, supra, which was a well-written opinion by Judge Odom, a majority of this Court correctly overruled this Court’s panel opinion of Craven v. State, 613 S.W.2d 488 (Tex.Cr.App.1981), which was authored by Judge Clinton, on which panel were Judges W.C. Davis and Dally. Craven had held that before a defendant could complain about the overruling of a motion to quash the charging instrument, he had to show harm, and “a determination of the kind of prejudice a defect of form may have engendered simply cannot be made without reviewing a statement of facts.” (490). In Jeffers v. State, supra, however, a majority of this Court held that “The test for deciding the sufficiency of an indictment in the face of a motion to quash for insufficient notice is to examine the indictment from the perspective of the accused ... The sufficiency of the indictment to give adequate notice must be determined in light of the presumption of innocence ... While a statement of facts may shed additional light on the basis that was urged in a motion to quash, it is not prerequisite to reaching the merits of the issue.” (189). For emphasis, the majority opinion further stated: “To require evidence reflected in a statement of facts to establish insufficient notice is to ignore the requirement that notice appear on the face of the indictment. Examination of the indictment, not the evidence, is the ultimate test. Craven v. State, supra, is overruled.” (189). Those voting in favor of Jeffers, supra, in addition to Judge Odom, were Presiding Judge Onion, and Judges Tom Davis, Teague, and Miller. Judge Clinton filed a dissenting opinion, which was joined by Judges W.C. Davis, McCormick, and Campbell. Since that date, Judge Odom has been succeeded by Judge White. In his dissenting opinion, Judge Clinton held firm to what he had stated in Craven v. State, supra. Today, his side prevails. Who knows what tomorrow will bring? What those persons who like Craven v. State, supra, overlook is the simple fact that a defendant in Texas does not have a general right to discover evidence in the possession of the great State of Texas, even if the evidence is the defendant’s own statements. This Court in Quinones v. State, 592 S.W.2d 933, 940 (Tex.Cr.App.1980), held that Art. 39.14, V.A.C.C.P., the “discovery” statute, “makes it clear that the decision on what is discoverable is committed to the discretion of the trial court.” Thus, in Texas, except for very limited exceptions, an accused person, prior to trial, is entitled to receive only a piece of paper — the charging instrument — and nothing more. In this instance, prior to trial, the trial judge permitted the appellant’s counsel to view both of the movies that the police had seized. In light of the fact that even after the appellant’s counsel saw the two movies he did not know on which one his client was going to be tried, I say: “Big Deal”, as far as this going to the merits of the motion to quash. I write this opinion to pay tribute to what this Court’s majority stated and held in Jeffers v. State, supra, which the aggressive and assertive majority of this Court says has been on the books too long (less than three years) and should now be sent to Davey Jones’ locker where this Court *907 discards some of its better opinions, regardless of whether they are “toddlers” or “senior citizens.” In light of our present law, as to what information an accused person is entitled to receive prior to trial, I find that the holdings in Jeffers v. State, supra, have served the administration of criminal justice well. Cases which have followed Jeffers v. State, supra, are the following: Miller v. State, 647 S.W.2d 266 (Tex.Cr.App.1983) (Held, the indictment failed to specify the manner and means by which the defendant damaged and destroyed property. “Appellant’s motion to quash entitled him to the allegation of facts sufficient to bar a subsequent prosecution for the same offense and sufficient to give him precise notice of the offense with which he was charged. We conclude that the trial court erred in overruling appellant’s motion to quash.”); Barnhart v. State, 648 S.W.2d 696 (Tex.Cr. App.1983) (Held, unless a fact is essential to give the accused notice of what he is accused of committing, charging instrument need not plead the evidence that State will rely upon to prove its case. Word “sodomy” need not be more specifically pled.); Inman v. State, 650 S.W.2d 417 Tex.Cr.App.1983) (Held, need not more particularly describe the word automobile); Smith v. State, 658 S.W.2d 172 (Tex.Cr.App.1983) (Identical contention as in Jeffers v. State, supra. Note, however, that Judge Clinton filed a concurring opinion in which he continued to subscribe to Craven, supra, and in which his staunch followers, Judges W.C. Davis, McCormick, and Campbell joined); Doyle v. State, 661 S.W.2d 726 (Tex.Cr.App.1984) (Held, indictment charging retaliation that did not state the nature of the threat made and the name of the public servant threatened subject to motion to quash); (Jones v. State, 672 S.W.2d 798 (Tex.Cr.App.1984) (Motion to quash, to be sufficient, must be specific); Castillo v. State, 689 S.W.2d 443 (Tex.Cr.App.1985) (Arson indictment subject to motion to quash on the ground that it did not allege the manner in which the defendant did “start a fire”); Nethery v. State, 692 S.W.2d 686 (Tex.Cr.App.1985) (Term “peace officer” need not be defined). Under Jeffers v. State, supra, the rule was quite simple: If the motion to quash challenges the charging instrument on the ground that it does not provide sufficient notice, which implicates fundamental constitutional protections of adequate notice and due process, see Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977), the charging instrument must be examined from the perspective of the accused. “It is not sufficient to say that the accused knew with what offense he was charged; rather, we must inquire as to whether the face of the indictment sets forth in plain and intelligible language sufficient information to enable the accused to prepare his defense. Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976).” Haecker v. State, 571 S.W.2d 920, 921 (Tex.Cr.App.1978). If the language of the involved criminal statute is itself completely descriptive of the offense, the charging instrument is sufficient if it follows or tracks the statutory language. However, if the language of the statute is not completely descriptive, then merely tracking the statutory language is insufficient, and in that instance the charging instrument is subject to a motion to quash. Of course, in making the decision, it is necessary to judge each motion to quash, in light of what the charging instrument states, on its own merits. Occasionally, it may even be necessary to ascertain what the obvious intent of the Legislature was when it enacted the particular criminal statute. Today’s decision changes all of the above. In place of the above, the majority substitutes the following test to answer the following question: Whether a defendant had notice adequate to prepare his defense? The majority opinion advises us that the first step in answering this question, but only the first step, is to decide whether the charging instrument failed to convey some requisite item of “notice”. The majority opinion advises us that the next step is to decide whether, in the con *908 text of the case, this had an impact on the defendant’s ability to prepare a defense, and, finally, how great an impact. The majority opinion holds: “Appellant does not [now] explain how his ignorance of which film the state would introduce against him hindered his defense when his counsel knew the content of both films, knew that both depicted similar behavior, and still did not present a defense based on the content of the material, the error in not granting the appellant’s motion to quash was harmless.” Such reasoning clearly represents the kind that has an affectation for putting the cart before the horse, and then saying: “See, the cart is really before the horse”, but the complaint way back was “But, the cart should not be before the horse, the horse should be before the cart.” I find that the test that the majority opinion uses in this cause is substantively the same test that was used in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984). However, is this the same test as the reasonable possibility test that is found in Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967), and Schneble v. Florida, 405 U.S. 427 , 92 S.Ct. 1056 , 31 L.Ed.2d 340 (1972)? Given the peculiar facts and circumstances of this case, I agree that it would be difficult, if not impossible, to say that the appellant was harmed by the trial judge’s error in not granting his attorney’s motion to quash. But, what about the not so peculiar and unusual case? The case where there is no discovery? The case where the trial has lasted several weeks after which the evidence is closed and the defendant’s attorney then jumps up and reurges his motion to quash? Must the trial judge then conduct a mental retrospective hearing on the motion to quash? What if he doesn’t? Is the trial judge now required to enter findings of fact and conclusions of law on this issue? What if he doesn’t? When will the members of the bench and bar now know that error in refusing a motion to quash constitutes reversible error? Perhaps in the future, we will learn, much like Lot’s wife did, at the moment when the event occurs. I respectfully dissent to the majority of this Court turning the law on its head. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9777206. Public record. Not legal advice.