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In The Court of Appeals Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-05-00133-CR ______________________________
LAMAR ANTHONY, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law Rusk County, Texas Trial Court No. 2004-09-518CR
Before Morriss, C.J., Ross and Carter, JJ. Opinion by Justice Ross
O P I N I O N
Lamar Anthony, Jr., was convicted by a Rusk County jury for trespassing in a city park. The City of Henderson has an unwritten policy delegating to its police officers the authority to ban persons from public parks at the officers' discretion. (1) Shortly after being given notice to remain out of Yates Park (2) by Police Sergeant Bryan Pool, Anthony was observed by Officer Chad Bradley, also a Henderson police officer, in the parking lot adjoining Yates Park. When Bradley informed Pool of his observation, Pool arrested Anthony for criminal trespass. The information filed, charging Anthony with that misdemeanor offense, alleged that Anthony trespassed on property owned by Greg Smith, the city manager of Henderson. After the jury found Anthony guilty, the trial court assessed punishment at ten days' confinement in the county jail.
Anthony appeals, raising four points of error. In his first point, Anthony contends the trespass policy of Henderson, on its face, violates the Due Process Clause of the United States Constitution. He contends, in his second and third points, that the trespass policy is both facially unconstitutional and unconstitutional as applied because it violates the First Amendment to the United States Constitution. Last, Anthony contends the evidence is legally and factually insufficient because the State failed to prove Smith owned Yates Park.
We will first address Anthony's allegation that the unwritten policy violates the Due Process Clause. Although we reject Anthony's substantive due-process argument, we agree the unwritten policy violates procedural due process and is unconstitutionally vague. Because the unwritten policy violates the Due Process Clause, we find it unnecessary to determine whether the policy also violates the First Amendment, either facially or as applied to Anthony. We then address the sufficiency of the evidence and conclude that, even if the State was required to prove ownership of Yates Park, the evidence that Greg Smith had a greater right of possession was sufficient. But because the unwritten policy is unconstitutional, Anthony had effective consent to be at the park during its regular hours of operation. Therefore, the evidence is legally insufficient to support Anthony's conviction for criminal trespass.
I. Factual Background
The evidence showed that, after information was received that Derek Anthony, (3) a suspect wanted on felony drug charges, was "in a vehicle that was inside Yates Park," several members of the Henderson Police Department were dispatched to that location. Apparently, at about the same time, Anthony rode with his cousin, Chris Hill, to Yates Park where they intended to play basketball. Officer Amber Tyson detained Hill's vehicle in the parking lot of the park just before Pool arrived.
Pool testified that, when he arrived at the scene, Anthony was engaged in a conversation with Tyson and was "being a little loud" and did not appear to be willing to cooperate. According to Pool, Anthony was "making a statement, such as, . . . 'ya'll are always coming down here in our park harassing us and picking on us. Why can't ya'll just leave us the fuck alone and go to Lake Forest Park and do something over there.'" Because a crowd of approximately ten to fifteen people had gathered, Pool testified he was becoming concerned for the safety of the officers. Pool also testified that Anthony was interfering with the officers' search for the suspect and that he felt Anthony may have been creating a diversion to allow the suspect to escape. Pool further testified he turned toward Anthony and "explained to him, '[l]ook, this is a city park. I am a representative of the City. Therefore, I have a right to say who comes in this park and who doesn't come in this park.'" Pool testified that, because of his past experience with Anthony, he did not believe Anthony respected authority or understood what he had just said, so he told him: "You get your ass out of this park and you don't come back. If you do, I will take you to jail."
On cross-examination, Pool admitted he told Anthony to leave the park after Anthony had informed Hill that the police did not have a warrant to search his car. Pool denied, however, that he told Anthony to leave the park because Anthony had advised Hill of his legal rights. Pool further testified that, when a person receives what the City describes as a "criminal trespass warning," there is no set time limit for that warning to expire, and it is effective "from now on."
Anthony and Hill testified to a similar, although slightly different, series of events. Anthony denied being loud when conversing with Tyson and, in fact, denied even talking to Tyson. Hill testified that Tyson merely requested to see Hill's driver's license and proof of insurance. Anthony testified that, when Pool requested to look in the car's trunk, he asked Pool, "What do you want to search the car for?" According to Anthony, Pool responded, "That's none of your business, you need to get out of my park."
Approximately ten to fifteen minutes later, the police department received an anonymous call that Derek was possibly in a truck that was in Yates Park. Police officers were again dispatched to the park. There, Officer Bradley detained a pickup truck in the middle of the parking lot of the park. The driver of that truck was Stephanie Anthony. Bradley testified Anthony was in the truck when Bradley initiated contact with Stephanie. Stephanie testified that, just before she was detained by Bradley, Anthony had gotten in the truck with her and she intended to drive him home. However, when Bradley arrived, Anthony exited the truck and left the park. Because Bradley was not aware Anthony had been given a warning to remain out of the park, he let Anthony leave.
When Pool arrived in response to the second call, he observed Anthony standing in the entrance to the parking lot of Yates Park. Anthony was in the process of getting into Hill's car. Pool detained Anthony and then asked Bradley whether Anthony had been in the park. Bradley confirmed that he had, and Pool then arrested Anthony. Pool testified that, because he was not certain where the property line of the park was located, he did not personally observe Anthony in the park. (4) It is uncontested that Anthony was at the park during the park's regular hours of operation. (5)
Smith testified Yates Park is owned by the City of Henderson. Although Smith testified he did not personally own the park, he did testify the City of Henderson has a greater right of possession than Anthony and that he (Smith) manages all "day to day operations" of the City. Smith also testified he had delegated to the city police officers the authority to issue what the City describes as "criminal trespass warnings." The City's unwritten policy delegates to individual officers the authority to issue warnings, banning individuals from the park. The determination of who is banned is made on a case-by-case basis and left to the discretion of the individual officer. The City has no written criteria to guide the officers in exercising their discretion. Smith testified that, if it was brought to his attention that an officer was being arbitrary or capricious, he would overrule the officer's decision. (6) When asked whether the appeal procedure was in writing, Smith testified, "[n]ot to my knowledge." Smith also testified he has never had anyone "appeal" a warning.
II. The Unwritten Policy Violates the Due Process Clause
The Due Process Clause of the United States Constitution provides that a State shall not "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV. When an attack on the constitutionality of a statute or regulation is presented for determination, we begin with the presumption that the statute or regulation is valid. See Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978); Morris v. State, 833 S.W.2d 624, 627 (Tex. App.--Houston [14th Dist.] 1992, pet. ref'd). A party challenging a statute on the basis that the statute violates the Due Process Clause of the Fourteenth Amendment bears the burden of demonstrating the scheme's unconstitutionality. Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 198 (2001); Granviel, 561 S.W.2d at 511.
Before we can delve into the merits of Anthony's due-process arguments, we must first decide two preliminary issues. First, we must decide whether the due-process arguments are preserved. After concluding that a facial due-process challenge can be raised for the first time on appeal, we will address whether Anthony had a protected liberty or property interest in Yates Park. Delving into the merits, we then address whether the unwritten policy violates substantive due process, is unconstitutionally vague, or violates procedural due process.
A. Facial Challenge Can be Raised for the First Time on Appeal
The State contends Anthony failed to preserve error on his due-process argument. After the State rested, and again at the conclusion of trial, Anthony requested a directed verdict. (7) Although Anthony did challenge the constitutionality of the unwritten policy, the State contends Anthony failed to advance the same due-process arguments raised on appeal. Anthony's due-process argument, though, only presents a facial challenge to the City's criminal trespass rule. An appellant does not waive error if he or she fails to raise a facial constitutional challenge to a statute at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990); Curry v. State, 186 S.W.3d 39, 42 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd); Bryant v. State, 47 S.W.3d 80, 84 (Tex. App.--Waco 2001, pet. ref'd); see Rabb v. State, 730 S.W.2d 751, 752 (Tex. Crim. App. 1987). A facial challenge claims that a statute is "invalid in toto -- and therefore incapable of any valid application." Steffel v. Thompson, 415 U.S. 452, 474 (1974). Even if Anthony failed to argue to the trial court that the unwritten policy violated the Due Process Clause, Anthony can still raise a facial challenge to the unwritten policy on appeal.
B. There is a Protected Liberty or Property Interest
Both substantive and procedural due process require a protected liberty or property interest to be deprived by state action. The first inquiry in every due-process challenge is whether the complaining party has been deprived of a protected interest in "property" or "liberty." See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999); Mathews v. Elridge, 424 U.S. 319, 332 (1976). The United States Supreme Court has held that "the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty." Williams v. Fears, 179 U.S. 270, 274 (1900); see Papachristou v. Jacksonville, 405 U.S. 156, 164 (1972); Kent v. Dulles, 357 U.S. 116, 126 (1958); Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002) (Constitution protects right to travel locally through public spaces and roadways). Anthony argues he has both a liberty and property interest in Yates Park. Regardless of whether Anthony had a property interest in Yates Park as a member of the public, Anthony clearly had a liberty interest in the park. However, Anthony's liberty interest, as explained below, is not a fundamental right.
C. The Unwritten Policy Does Not Violate Substantive Due Process
In a substantive due-process analysis, we determine (1) whether the plaintiff had a protected liberty interest, and (2) if the government deprived him or her of that interest capriciously and arbitrarily. See Foucha v. Louisiana, 504 U.S. 71, 80 (1992); Dallas County v. Gonzales, 183 S.W.3d 94, 111 (Tex. App.--Dallas 2006, no pet.). Anthony argues that the policy denies a fundamental right. Denial of a fundamental right would require a compelling governmental interest. However, if there is no fundamental right, substantive due process merely requires a rational relationship between the regulation and the right being destroyed.
1. There Is No Fundamental Right
If a fundamental right is involved, the State must show a compelling interest. Substantive due process forbids the government to infringe certain "fundamental" liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. See, e.g., Collins v. Harker Heights, 503 U.S. 115, 125 (1992); Bowers v. Hardwick, 478 U.S. 186, 191 (1986). Anthony contends the unwritten policy deprives him of his constitutional rights of free speech, freedom of association, and right to travel. In addition, Anthony contends the freedom to loiter or associate for innocent purposes is part of the liberty protected by the Due Process Clause.
Anthony has failed to cite controlling authority that his liberty interest in the park is a "fundamental right." Anthony does cite Fears, 179 U.S. at 274; Papachristou, 405 U.S. at 164; and Kent, 357 U.S. at 126, for this proposition. However, merely having a liberty or property interest guaranteed by the Constitution is not equivalent to having a fundamental right. Not all rights secured by the Federal Constitution are fundamental rights but, only "those which lie at the heart of the relationship between the individual and republican form of nationally integrated government." 16A Am. Jur. 2d Constitutional Law § 397 (1998) (citing Kalodimos v. Vill. of Morton Grove, 470 N.E.2d 266 (Ill. 1984)).
We note that, in a plurality decision of the United States Supreme Court, Justices Stevens, Ginsburg, and Souter suggested that the freedom to loiter for innocent purposes is a fundamental right. See Chicago v. Morales, 527 U.S. 41, 53-54, n.20 (1999) (Stevens, J., joined by Souter, J., and Ginsburg, J.) (plurality of United States Supreme Court held: "Freedom to loiter for innocent purposes is part of the 'liberty' protected by the Due Process Clause" and suggesting there is fundamental right to loiter for innocent purposes). However, a plurality opinion has limited precedential value. See Moore v. State, 969 S.W.2d 4, 9 (Tex. Crim. App. 1998). While we agree, as discussed above, that Anthony had a liberty interest in the park, we are not convinced Anthony had a fundamental right to use the park. See Cent. Tex. Nudists v. County of Travis, No. 03-00-00024-CV, 2000 Tex. App. LEXIS 8136 (Tex. App.--Austin 2000, pet. denied) (not designated for publication) (age restriction on clothing-optional public park did not violate fundamental right); see also Doe v. City of Lafayette, 377 F.3d 757, 772 (7th Cir. 2004) (convicted sex offender had no fundamental right to loiter in public park).
2. Policy Is Constitutional Under the Rational Relationship Test
The State argues that the policy has a rational relationship to the right being denied. The test of whether a regulation which does not affect a fundamental right violates substantive due process is whether the government was acting in pursuit of permissible state objectives and, if so, whether the means adopted were reasonably related to accomplishment of these objectives. Reno v. Flores, 507 U.S. 292 (1993); Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 291 (5th Cir. 2001); Simi Inv. Co. v. Harris County, 236 F.3d 240 (5th Cir. 2000). Maintenance of order in a public park is a legitimate state objective, and there is a rational relationship between a policy allowing exclusion from the park of individuals who breach the peace and the maintenance of order in a public park. The regulation does not violate substantive due process.
D. Policy Is Unconstitutionally Vague
Also included in due process is the vagueness doctrine. Anthony argues the unwritten policy is inherently vague and the "vague statutory language permits selective law enforcement." There is also a denial of due process where inherently vague statutory language permits selective law enforcement. Smith v. Goguen, 415 U.S. 566, 576 (1974). In order to satisfy constitutional due-process requirements, the statute or regulation must provide adequate notice of the required or prohibited conduct. Freeman United Coal Mining Co. v. Fed. Mine Safety & Health Review Comm'n, 108 F.3d 358, 362 (D.C. Cir. 1997); see Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); Papachristou, 405 U.S. at 162; State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006). Although the regulation must give fair warning--in light of common understanding and practices--of the prohibited conduct, the regulation is not required to be mathematically precise. Grayned, 408 U.S. at 110; Ex parte Anderson, 902 S.W.2d 695, 698 (Tex. App.--Austin 1995, pet. ref'd). The regulation, though, must be defined with "sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not permit arbitrary and discriminatory enforcement." Holcombe, 187 S.W.3d at 499.
The unwritten policy at issue here is not premised on a violation of specific park rules. The policy delegates complete discretion to the police officer, and there are no guidelines for the exercising of that discretion. (8) A reasonable person would not have fair warning of what conduct would violate that regulation. Not only are the policy's prohibitions not clearly defined, the policy presents substantial risk of arbitrary and discriminatory enforcement. While there is no evidence Pool used this policy in a discriminatory manner, the policy presents significant risk it could be used in such a manner. The unwritten policy is unconstitutionally vague.
E. The Unwritten Policy Violates Procedural Due Process
In addition, Anthony contends the unwritten policy violates his right to procedural due process. At a minimum, due process requires a person who may be deprived of a liberty or property interest to be provided notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Mathews, 424 U.S. at 333; Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 930 (Tex. 1995); see Zinermon v. Burch, 494 U.S. 113, 127 (1990); cf. Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex. 2001) (due course of law under the Texas Constitution). Anthony contends the policy of the City, which allows police officers to exercise unfettered discretion to ban persons from public property intended for use by the general public, is a violation of the right to procedural due process.
In analyzing a claim of deprivation of procedural due process, we apply a two-part test: (1) whether the plaintiff had a liberty or property interest entitled to procedural due process; and (2) if so, what process is due. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982); Than, 901 S.W.2d at 929. In determining what process is required, we utilize a flexible standard that depends on the practical requirements of the circumstances. Mathews, 424 U.S. at 334; Than, 901 S.W.2d at 930.
This flexible standard includes three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Than, 901 S.W.2d at 930; see Mathews, 424 U.S. at 335.
The State argues the City has properly delegated authority to police officers and it must be presumed, in the absence of evidence to the contrary, that the officers are expected to exercise that discretion within the bounds of their duties under Article 2.13 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 2.13 (Vernon 2005). However, a police officer's exercise of duties and powers under that provision must be pursuant to policies and procedures that do not violate the due process of law. Here, the City's unwritten policy includes no guidelines to the police officer in exercising his or her discretion to ban a person from the park, and it contains no guidelines or procedures for the "appeal" process. As such, it is procedurally deficient and denies due process.
Further, under the unwritten policy, the decision to exclude a person from the park is made before the person has a chance to present any evidence in his or her favor and without any evidence being presented against him or her. Due process is ordinarily absent if a party is deprived of his or her property or liberty without evidence having been offered against him or her in accordance with established rules. In re Application of Eisenberg, 654 F.2d 1107, 1112 (5th Cir. 1981). Further, due process ordinarily includes the right to confront witnesses. Wolff v. McDonnell, 418 U.S. 539, 559 (1974); but see Brock v. Roadway Express, Inc., 481 U.S. 252, 262 (1987). Most important, due process requires a neutral and detached hearing body or officer. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973).
The State argues, without citing any authority, that, because Anthony was arrested less than fifteen minutes after receiving the warning, Anthony's due-process rights were not violated. The State further argues that the appeal process satisfies any possible due process concerns. In some circumstances, the United States Supreme Court has held that a statutory provision for a post-deprivation hearing, or a common-law tort remedy for erroneous deprivation, satisfies due process. Zinermon v. Burch, 494 U.S. 113, 128 (1990). "[W]here a State must act quickly, or where it would be impractical to provide predeprivation process, postdeprivation process satisfies the requirements of the Due Process Clause." Gilbert v. Homar, 520 U.S. 924, 930 (1997). Even if it would be impractical to provide predeprivation process, the City's appeal process is not adequate. While a temporary order pending a hearing may be adequate, (9) the decision in this case is a final ex parte determination. An appeal is inadequate because the decision has already been made without the ability to present evidence for or against the deprivation. An appeal will not cure the failure to provide a neutral and detached adjudicator. Ward v. Monroeville, 409 U.S. 57, 61 (1972). Further, Anthony was not informed of the appeal procedure. While Pool did not explicitly state his decision was final, his statements left an impression of finality. Pool, himself, testified he viewed the decision as effective from that point on. Last, there are no procedures in the appeal process for the presentation of evidence for or against a violation.
After weighing the three factors, we conclude the City's unwritten policy does not meet the requirements of procedural due process. Although the fiscal and administrative burdens may weigh against a due-process violation, this factor is greatly outweighed by the other factors. Due process requires state procedures to provide proper procedural safeguards before a claimant's property or liberty interest is destroyed. See Thoyakulathu v. Brennan, 192 S.W.3d 849, 854 (Tex. App.--Texarkana 2006, no pet.). The unwritten policy fails to provide an opportunity to be heard at a meaningful time and in a meaningful manner. The policy does not provide for a hearing or a neutral magistrate. Under the unwritten policy, a person is deprived of his or her property or liberty without evidence having been offered against him or her or the opportunity to present evidence on his or her own behalf. "The Due Process Clause of the Fourteenth Amendment was intended to prevent government 'from abusing [its] power, or employing it as an instrument of oppression.'" DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196 (1989). Although there is no evidence Pool intended to exercise his discretion in an oppressive manner, the unwritten policy contains insufficient checks to prevent such discretion from being exercised in an oppressive manner. The unwritten policy fails to afford procedural due process.
F. The Unwritten Policy Is Not Susceptible to a Narrowing Construction
If a reasonable construction can be ascertained which will render the statute constitutional, we must uphold the statute. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979); Ex parte Anderson, 902 S.W.2d 695, 698 (Tex. App.--Austin 1995, pet. ref'd); State v. Fry, 867 S.W.2d 398, 400 (Tex. App.--Houston [14th Dist.] 1993, no pet.). If a statute is "susceptible to a narrowing construction consistent with its language and apparent purpose," the statute should not be invalidated. Olvera v. State, 806 S.W.2d 546, 552 (Tex. Crim. App. 1991). "However, a court may not assume the legislative prerogative and rewrite a statute in order to save it if the statute is not readily subject to a narrowing construction." Id. Without completely rewriting the policy, there is no reasonable interpretation of the unwritten policy that would be constitutional. We are unable to sever the unconstitutional portion of the unwritten policy, and the unwritten policy is not susceptible to a narrowing construction.
G. Summary
We reject the State's argument that Anthony was required to raise due process at the trial court level and hold that Anthony had a protected liberty interest in Yates Park. Although we reject Anthony's argument that the unwritten policy violates substantive due process, we conclude the unwritten policy fails to meet the requirements of procedural due process and is unconstitutionally vague. We sustain Anthony's first point of error. (10)
III. The Evidence Is Legally Insufficient
Anthony also alleges that the evidence is legally and factually insufficient to support a conviction for criminal trespass. He contends that there was no evidence the park was owned by Smith and that the concept of a "greater right to possession" does not apply to criminal trespass. See, e.g., Palmer v. State, 764 S.W.2d 332, 334 (Tex. App.--Houston [1st Dist.] 1988, no pet.). In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Although we reject Anthony's argument that the State failed to prove ownership of the park, the evidence is legally insufficient because Anthony had effective consent to be in the park.
A. Proof of a Greater Right of Possession Is Sufficient
Under the Texas Penal Code, the offense of criminal trespass does not require the State to prove ownership of the property trespassed on, but merely requires proof the property belonged to "another." Tex. Penal Code Ann. § 30.05(a) (Vernon Supp. 2006). In this case, though, the State alleged in the information that Smith owned the property being trespassed on. Anthony contends that the State was required to prove this allegation and that the State's proof of a greater right of possession is insufficient.
The Texas Court of Criminal Appeals has held the phrase "the owner thereof" may be substituted for the statutory word "another." State v. Kinsey, 861 S.W.2d 383, 384 (Tex. Crim. App. 1993). Assuming the State was required to prove Smith was the owner, (11) proof of a greater right of possession is sufficient. The Texas Court of Criminal Appeals has also held the definition of "owner" under the former subsection 1.07(a)(24) (12) of the Texas Penal Code is applicable to trespass cases where the State alleges ownership. Langston, 855 S.W.2d at 720 n.7; Arnold, 867 S.W.2d at 379. Therefore, in criminal trespass cases where the State alleges ownership, subsection 1.07(a)(35), the current section, is applicable and the State may establish ownership by proving, beyond a reasonable doubt, that the complainant had a greater right to possession of the property than the defendant. See Arnold, 867 S.W.2d at 379; see also Tex. Penal Code Ann. § 1.07(a)(35). The State introduced evidence that Smith had a greater right of possession. Thus, the evidence of ownership is sufficient even if the State was required to prove ownership.
B. Anthony Had Effective Consent To Be in the Park
The State contends Pool's authority to exclude persons from the park is not relevant to the validity of the criminal trespass conviction. We disagree. Because Pool lacked authority to exclude a person from the park, the evidence is legally insufficient to support the effective consent prong of criminal trespass. Section 30.05 of the Penal Code provides:
(a) A person commits an offense if he enters or remains on or in property, including an aircraft or other vehicle, of another without effective consent or he enters or remains in a building of another without effective consent and he:
(1) had notice that the entry was forbidden; or
(2) received notice to depart but failed to do so.
Tex. Penal Code Ann. § 30.05(a). As discussed above, the unwritten policy violates the Due Process Clause. Pool's authority to exclude Anthony from the park is based solely on the unwritten policy. Because the unwritten policy is void, Pool lacked authority to exclude Anthony from the park under this policy. Thus, Anthony, as a member of the public, had effective consent to be in the park during the ordinary hours of operation. The evidence is legally insufficient.
IV. Conclusion
Although the City's unwritten policy does not violate substantive due process, the policy clearly violates procedural due process and is unconstitutionally vague. Because the unwritten policy of the City of Henderson gives police officers unfettered discretion to determine who should be excluded from Yates Park and fails to provide for any hearing, the policy, on its face, violates procedural due process. Further, the unwritten policy is unconstitutionally vague since the policy fails to give adequate notice of what conduct is prohibited. Because the unwritten policy relied on by Pool is unconstitutional, Pool lacked authority to ban Anthony from Yates Park under such policy. The evidence, therefore, is legally insufficient to support a conviction for criminal trespass.
For these reasons, we reverse the judgment of conviction and render a judgment of acquittal.
Donald R. Ross
Justice
Date Submitted: October 4, 2006
Date Decided: November 30, 2006
Publish
1. Under the Texas Local Government Code, the City of Henderson has the authority to adopt rules concerning the management of a park owned by the city. Section 331.007 of the Local Government Code provides that parks "shall be open for the use of the public under rules prescribed by the governing body of the park . . . ." Tex. Loc. Gov't Code Ann. § 331.007 (Vernon 2005); see also Tex. Loc. Gov't Code Ann. § 331.005 (Vernon 2005). For the purposes of this appeal, we will assume the unwritten policy qualifies as a rule under the Local Government Code.
2. Yates Park is a public park owned by the City of Henderson.
3. We refer to Lamar Anthony by his surname, Anthony. But because there are two other Anthonys--Derek and Stephanie--in this Factual Background, we refer to them (beyond their first mention) by their given names. Pool testified Derek was either a cousin or a brother to Anthony. Anthony referred to Stephanie as his aunt.
4. We note that Anthony contends his arrest was illegal because Pool did not personally observe Anthony in the park. See Tex. Code Crim. Proc. Ann. art. 14.01 (Vernon 2005); see also McGee v. State, 105 S.W.3d 609, 614 (Tex. Crim. App. 2003). It is unnecessary for us to determine whether a warrantless arrest was permissible. Even if the arrest was illegal, an acquittal is not required. It has long been the rule in Texas that an illegal arrest does not render a conviction void where the conviction is not tainted by the illegality of the arrest. Johnson v. State, 548 S.W.2d 700, 706 (Tex. Crim. App. 1977); Frazier v. State, 481 S.W.2d 857, 859 (Tex. Crim. App. 1972); Brennan v. State, 140 S.W.3d 779, 780 (Tex. App.--Houston [14th Dist.] 2004, pet. ref'd). The appropriate sanction for an illegal arrest is the exclusion of evidence associated with that illegal arrest. Brennan, 140 S.W.3d at 780. Anthony does not contend there is any evidence which should have been suppressed due to the allegedly illegal arrest.
5. Pool testified the hours of Yates Park were 7:00 a.m. to midnight. He further testified that he issued the warning at approximately 5:57 p.m. The record is not clear when Anthony was arrested, but the State contends it was approximately fifteen minutes after receiving the warning to stay out of the park.
6. Pool testified he never informed Anthony he could appeal Pool's decision to the city manager.
7. In addition, Anthony filed a motion for judgment notwithstanding the verdict (j.n.o.v.). All of Anthony's issues are preserved in his motion for j.n.o.v., but, as the State correctly points out, a motion for j.n.o.v. is not available in criminal cases. See Tex. Code Crim. Proc. Ann. art. 42.01, § 1(7) (Vernon Supp. 2006); State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996); Dunn v. State, 176 S.W.3d 880, 885 (Tex. App.--Fort Worth 2005, no pet.). Further, the substance of the motion does not indicate it should be construed as a motion for new trial.
8. The State cites Allen v. State, No. 12-01-00079-CR, 2003 Tex. App. LEXIS 2188 (Tex. App.--Tyler Mar. 12, 2003, no pet.) (mem. op., not designated for publication) (apartment complex parking lot), and State v. Jackson, 849 S.W.2d 444, 446 (Tex. App.--San Antonio 1993, no pet.) (apartment complex), for the proposition that a property owner may delegate to security guards or other agents the authority to deny entry to property. Because these cases involve private property, they are clearly distinguishable.
9. We note a person may be banned, without a court-ordered injunction, from a public park under the care and control of the Texas Department of Parks and Wildlife for up to forty-eight hours. See Tex. Parks & Wildlife Code Ann. § 13.108 (Vernon 2002).
10. We note that Smith testified the unwritten policy in this case is substantially similar to the City of Henderson's trespass policy for property owned by the housing authority. We emphasize that this opinion does not decide the constitutionality of the City's trespass policy for property owned by the housing authority. We also emphasize this opinion does not decide whether a police officer could constitutionally order a person interfering with his or her duties to disperse. This opinion is limited to the constitutionality of the City's policy which allows a police officer to permanently ban a person from a public park at the officer's unfettered discretion.
11. We note the State contends it was not required to prove ownership. The Texas Court of Criminal Appeals has held, when the State alleges an owner of the property--which is not a necessary allegation to prove the offense of criminal trespass--the State is required to prove that allegation. Langston, 855 S.W.2d 718, 721 (Tex. Crim. App. 1993); see also Arnold v. State, 867 S.W.2d 378, 379 (Tex. Crim. App. 1993) (trespass at courthouse). However, since Langston and Arnold were decided, the Texas Court of Criminal Appeals has mandated sufficiency of the evidence must be analyzed under the hypothetically correct jury charge. Gharbi v. State, 131 S.W.3d 481, 483 (Tex. Crim. App. 2003) (allegation which is not statutory element or "an integral part of an essential element of the offense" does not have to be included in hypothetically correct jury charge); see Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002) (allegation which is not statutory element does not have to be included in hypothetically correct jury charge); see also Gollihar v. State, 46 S.W.3d 243, 256 (Tex. Crim. App. 2001) (explicitly overruling surplusage law and Burrell exception). However, it is not necessary for us to determine what impact, if any, the hypothetically correct jury charge doctrine has on the holdings of Langston and Arnold.
12. In 1993, the Legislature renumbered the former subsection 1.07(a)(24) as subsection 1.07(a)(35) without a substantive change to the text of the subsection. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3589 (codified at Tex. Penal Code Ann. § 1.07(a)(35) (Vernon Supp. 2006).
ps friends in the past. But, on December 17, 2008, Johnson shot and killed Robinson. Johnson was convicted by a jury for Robinsons murder and was sentenced to imprisonment for a period of ninety-nine years and fined $10,000.00. We affirm the trial courts judgment.
I. FACTUAL BACKGROUND
Johnson testified on his own behalf and gave the following account: Robinson called Johnson twice on the day Robinson was killed. When told by Johnson to stop calling, Robinson announced that he was outside Johnsons house. Johnson was alarmed because he did not give Robinson his telephone number and had moved to a new home. Johnson went outside and saw Robinson walking into his yard. When asked by Robinson why Johnson had been ignoring him, Johnson replied that he did not want to speak with Robinson and turned to go back in the house.[1] At that point, Robinson grabbed Johnsons wrist; Johnson pulled his wrist free, asked Robinson to leave, and went back inside. Robinson refused to leave. Alarmed at Robinsons refusal to leave, Johnson retrieved a gun from his mothers room and placed it in his coat pocket. When Johnson emerged from his home, Robinson was still outside and stated that he needed a few minutes to speak with Johnson. Johnson agreed, and the two met in a wooded area down the street from Johnsons house. Robinson and Johnson conversed in the front seat of Robinsons vehicle; Robinson indicated he had feelings for Johnson, and Johnson indicated that he wanted Robinson to leave him alone. During the course of this conversation, Johnson pulled the gun out of his jacket in order to frighten Robinson and in order to emphasize the point that he wanted Robinson to leave him alone. After that, both Johnson and Robinson exited the vehicle, and Johnson began walking back to his car. In the meantime, Robinson opened the back of his vehicle and was scrambling through some clothes or something in the back. Robinson then told Johnson that he was going to kill Johnson and his family. Johnson was looking at Robinson out of the corner of his eye and saw Robinsons arm raised. When Johnson turned around, he saw Robinsons arm go up and saw something in his hand, which he believed to be a gun.[2] Johnson panicked and accidentally fired at Robinson, killing him. Johnson fled, only to be arrested for Robinsons murder several months later.
II. ANALYSIS
On appeal, Johnson claims the jury in his case was not properly sworn, in violation of his right to a trial by jury under the United States and Texas Constitutions. Johnson further claims the punishment charge presents fundamental error because it permitted the jury to reject a finding of sudden passion, in the absence of unanimity, in violation of Article 37.07, Section 3(c) of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 37.07, § (3)(c) (Vernon Supp. 2010). We will examine each of Johnsons issues in turn.
A. Jury Oath
In his first three appellate points, Johnson claims that even though the record reflects the clerk read the oath to the jury, the jury never assented to the oath and thus was not sworn. This, claims Johnson, is a violation of (1) Article 35.22 of the Texas Code of Criminal Procedure; (2) his right to trial by jury under the United States Constitution; and (3) his right to trial by jury under the Texas Constitution.
Article 35.22 of the Texas Code of Criminal Procedure provides:
When the jury has been selected, the following oath shall be administered them by the court or under its direction: You and each of you do solemnly swear that in the case of the State of Texas against the defendant, you will a true verdict render according to the law and the evidence, so help you God.
Tex. Code Crim. Proc. Ann. art. 35.22 (Vernon 2006). The Texas Rules of Appellate Procedure create presumptions of regularity in lower court proceedings that require us to presume, among other things, that the jury was properly impaneled and sworn. Tex. R. App. P. 44.2(c). We presume the jury was properly impaneled and sworn, unless such matter was disputed in the trial court or the record affirmatively shows the contrary. See also Osteen v. State, 642 S.W.2d 169, 171 (Tex. Crim. App. 1982); Faison v. State, 59 S.W.3d 230, 237 (Tex. App.Tyler 2001, pet. refd). Here, there was no objection to a failure to administer the oath to the jury panel. Johnson maintains the record affirmatively demonstrates the jury was not properly sworn because it fails to reflect that the jury responded in the affirmative to the oath, citing the following excerpts from the record:
THE CLERK: You and each of you do solemnly swear that in the case of the State of Texas versus Ryan Johnson you will a true verdict render according to the law and the evidence, so help you God?
THE COURT: Please be re-seated. Ladies and gentlemen, youve been given a juror badge . . . .
Johnson contends that because an oath is commonly defined[3] as a solemn usu. formal calling upon God or a god to witness to the truth of what one says or to witness that one sincerely intends to do what one says,[4] the oath requires an affirmation or response on behalf of the jurors.
The State contends that the issue of whether the oath was administered has been mooted by the filing of a supplemental reporters record[5] which reflects that the clerk read the oath to the jury and that the jury was sworn as required by Article 35.22 of the Texas Code of Criminal Procedure. Given the affirmative showing in the supplemental reporters record that the jury in Johnsons case was, in fact, sworn, Johnsons first three points of error are overruled as moot. See Wilson v. State, 296 S.W.3d 140, 143 (Tex. App.Houston [14th Dist.] 2009, pet. refd). Even if the issue of whether the jury was sworn in accordance with Article 35.22 was not rendered moot in this instance, there is no affirmative showing in the record that the jury oath was not properly administered. Therefore, it must be presumed the jury was properly impaneled and sworn. See Tex. R. App. P. 44.2(c).
B. Jury Unanimity
In points of error four through six, Johnson maintains the punishment charge presents fundamental error by not requiring jury unanimity in finding no sudden passion in violation of (1) Article 37.07, Section 3(c) of the Texas Code of Criminal Procedure;[6] (2) the Texas Constitution; and (3) the United States Constitution. If the jury had found Johnson acted under the immediate influence of sudden passion[7] arising from adequate cause[8] when he killed Robinson, the crime would have been punished as a second-degree felony rather than a first-degree felony. Tex. Penal Code Ann. § 19.02 (Vernon 2003); Trevino v. State, 100 S.W.3d 232, 237 (Tex. Crim. App. 2003); Bradshaw v. State, 244 S.W.3d 490, 494 (Tex. App.Texarkana 2007, pet. refd).
A claim of jury charge error is reviewed under the two-pronged test set forth in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on rehg), overruled on other grounds by Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App. 1988). Under the first prong of the test, we are to determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error is determined to exist, we must determine whether sufficient harm resulted from the error to compel reversal. Id. at 744. We initially evaluate the question of error.
When the issue of sudden passion is raised and submitted, the jury must unanimously agree that the defendant either did or did not act under the immediate influence of sudden passion arising from an adequate cause. Sanchez v. State, 23 S.W.3d 30, 3334 (Tex. Crim. App. 2000); Newton v. State, 168 S.W.3d 255, 256 (Tex. App.Austin 2005, pet. refd). This requirement stems from the statutory requirement that the jury agree unanimously as to both the guilt or innocence of the defendant and the amount of punishment. Sanchez, 23 S.W.3d at 33 (quoting Tex. Code Crim. Proc. Ann. art. 37.07, § 3(c)).
The jury charge in this case provided, in pertinent part:
The punishment which you may assess is confinement in the Institutional Division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 5 years; unless you believe that the defendant caused the death under the immediate influence of a sudden passion arising from an adequate cause in which event you may assess confinement for not more than 20 years or less than 2 years. In addition, in either case, a fine not to exceed $10,000 may be imposed.
. . . .
Now if you believe by a preponderance of the evidence that the defendant caused the death of the deceased while under the immediate influence of sudden passion arising from an adequate cause, you will assess punishment at confinement for not more than 20 years nor less than 2 years and you may impose a fine not to exceed $10,000.
In the final paragraph, the charge in this case instructs the jurors that the verdict must be by a unanimous vote of all members of the jury. This charge is virtually identical to the charge given in Newton, 168 S.W.3d at 258.[9] The Austin Court of Appeals found this charge to be erroneous because the instruction did not condition the use of the five-to-life punishment range on a unanimous finding that the appellant did not act under the influence of sudden passion. Id. at 257. Instead, the harsher punishment range was made applicable in the absence of a finding in appellants favor. Id. The punishment charge in the instant case suffers from the same defect; the jury was never instructed that they were to impose first-degree felony punishment only if they unanimously agreed that Johnson did not act under the influence of sudden passion. As in Newton, this charge does not include a unanimity requirement directly relating to the selection of the proper punishment range, and as in Newton, the charge is erroneous.
The erroneous charge is not salvaged by the verdict forms, which are virtually identical to those submitted in Bradshaw, 244 S.W.3d 490.[10] Like Bradshaw, the verdict forms here do not condition the punishment range on the absence of a finding. The verdict forms here, as in Bradshaw, do not require the jury to provide an explicit affirmative or an explicit negative ruling on sudden passion.[11] The issue of sudden passion is subsumed in each question. In Bradshaw, this Court observed that the verdict forms do not prevent the charge from being erroneous because the jury is not asked to find a lack of sudden passion, but rather is merely instructed to assess the first-degree felony punishment range if it does not find Bradshaw acted with sudden passion. Id. at 497. As in Bradshaw, the verdict forms in this case do not prevent the charge from being erroneous.[12]
Here, the State concedes the punishment charge was erroneous because it theoretically allowed the jury to make a non-unanimous decision as to sudden passion. Because Johnson failed to raise his jury-unanimity objection at trial, we will reverse only if we find the charge error caused Johnson egregious harm. See Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008). Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). When charge error causes a jury to render a less-than-unanimous verdict on an issue on which unanimity is required, the charge error is egregiously harmful. See Ngo, 175 S.W.3d at 75052; Swearingen v. State, 270 S.W.3d 804, 812 (Tex. App.Austin 2008, pet. refd). The egregious harm standard requires a finding of actual, not merely theoretical, harm to the accused. Almanza, 686 S.W.2d at 174. Egregious harm is a difficult standard to meet and must be determined on a case by case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002).
Johnson contends that charge error has been found to be egregiously harmful by the Texas Court of Criminal Appeals where there was evidence of a lack of unanimity, citing Sanchez, 23 S.W.3d at 34. In this case, unlike Sanchez, in which the defendant presented evidence that the jury verdict was not unanimous, there is no evidence in this case that the jury verdict was not unanimous. Johnson acknowledges that this Court has previously held that where there is no evidence of a lack of unanimity by the jury, harm resulting from this type of an erroneous punishment charge is not egregious. Bradshaw, 244 S.W.3d at 498. Johnson nevertheless urges this Court to follow the holding of the Dallas Court of Appeals in London v. State, 325 S.W.3d 197 (Tex. App.Dallas 2008, pet. refd). There, the punishment charge on sudden passion provided: An affirmative (yes) answer on the issue submitted must be unanimous, but if the jury is not unanimous in reaching an affirmative answer, then the issue must be answered no.[13] This punishment charge affirmatively directed jurors to make a negative finding on the issue of sudden passion if they were unable to reach a unanimous decision on that issue.
As in Bradshaw, here (1) there was no affirmative direction to the jurors to make a negative finding on the issue of sudden passion in the absence of unanimity, (2) the charge contained a general instruction that the verdict must be unanimous, and (3) there is no evidence that the verdict was not unanimous. Under these circumstances, the argument that the verdict may not have been unanimous is theoretical only. The degree of harm demonstrated by an appellant must be actual, not merely theoretical. Almanza, 686 S.W.2d at 174; Bradshaw, 244 S.W.3d at 498. The error was not so egregious as to vitally affect a defensive theory or make the case for conviction or punishment clearly and significantly more persuasive.[14]
III. CONCLUSION
We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: January 11, 2011
Date Decided: January 26, 2011
Do Not Publish
[1]All of the witnesses agreed that Robinson was homosexual. Johnson testified that when he met Robinson, he thought Robinson was a female because he was dressed in female clothing and was called Sadera. After discovering that Robinson was a gay male, Johnson stated he discontinued seeing Robinson. Other witnesses testified that Robinson and Johnson were romantically involved.
[2]Robinson did not have a gun. The item he was holding was fingernail polish.
[3]Article 3.01 of the Texas Code of Criminal Procedure states that words, phrases, and terms used in the Code are to be taken and understood in their usual acceptation in common language, except where specially defined. Tex. Code Crim. Proc. Ann. art. 3.01 (Vernon 2005).
[4]Merriam-Websters Collegiate Dictionary 854 (11th ed. 2003).
[5]The supplemental reporters record reads:
THE CLERK: You and each of you do solemnly swear that in the case of the State of Texas versus Ryan Johnson you will a true verdict render according to the law and the evidence, so help you God?
(THE JURY WAS SWORN)
THE COURT: Please be re-seated. Ladies and gentleman, youve been given a juror badge . . . .
[6]Article 37.07, Section 3(c) of the Texas Code of Criminal Procedure provides:
If the jury finds the defendant guilty and the matter of punishment is referred to the jury, the verdict shall not be complete until a jury verdict has been rendered on both the guilt or innocence of the defendant and the amount of punishment. In the event the jury shall fail to agree on the issue of punishment, a mistrial shall be declared only in the punishment phase of the trial, the jury shall be discharged, and no jeopardy shall attach. The court shall impanel another jury as soon as practicable to determine the issue of punishment.
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(c).
[7]Sudden Passion means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation. Tex. Penal Code Ann. § 19.02(a)(2) (Vernon 2003).
[8]Adequate cause means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. Tex. Penal Code Ann. § 19.02(a)(1).
[9]The charge in Newton provided:
The punishment which you may assess is confinement in the Institutional Division of the Texas Dept. of Criminal Justice for life, or for any term of not more than 99 years or less than 5 years; unless you believe that the defendant caused the death under the immediate influence of a sudden passion arising from an adequate cause in which event you may assess confinement for not more than 20 years or less than 2 years. In addition, in either case, a fine not to exceed $10,000 may be imposed. The burden of proof is on the defendant to prove this issue by a preponderance of the evidence.
. . . .
Now if you believe by a preponderance of the evidence that the defendant caused the death of the deceased while under the immediate influence of sudden passion arising from an adequate cause, you will assess punishment at confinement for not more than 20 years nor less than 2 years and you may impose a fine not to exceed $ 10,000.
Id. at 25657.
The final paragraph of the charge in Newton instructed the jurors to select a foreperson to preside at your deliberations and to vote with you in arriving at a unanimous verdict. Id. at 257.
[10]The verdict forms in Bradshaw provided:
We, the jury, having found the defendant, Joe Bradshaw, guilty of murder, do further find that the defendant murdered Toy Bradshaw while under the immediate influence of sudden passion arising from an adequate cause and assess his punishment at confinement for ________ in the correctional Institutions Division of the Texas Department of Criminal Justice. (Any term of not more than 20 years or less than 2 years.) In addition, we assess a fine in the amount of $__________. ($0-10,000.00).
. . . .
We, the jury, having found the defendant, Joe Bradshaw, guilty of murder do not find that the defendant murdered Toy Bradshaw while under the immediate influence of sudden passion arising from adequate cause and assess his punishment at confinement for ________ in the correctional Institutions Division of the Texas Department of Criminal Justice. (Life or any term of not more than 99 years or less than 5 years). In addition, we assess a fine in the amount of $__________. ($0-10,000.00).
Bradshaw, 244 S.W.3d at 496.
[11]The verdict forms in this case provide as follows:
We, the jury, having found the defendant, RYAN PATRICK JOHNSON, guilty of Murder, as charged in the indictment, assess his punishment at confinement for ____ years in the Institutional Division of the Texas Department of Criminal Justice. (Any term of more than ninety-nine years or life or less than five years.) In addition, we assess a fine in the amount of $________. ($0-$10,000.00).
. . . .
We, the jury, having found the defendant, RYAN PATRICK JOHNSON, guilty of murder, do further find the defendant cause [sic] the death of the deceased under the immediate influence of sudden passion arising from an adequate cause. We therefore assess his punishment at confinement for _____ years in the Institutional Division of the Texas Department of Criminal Justice (Any term of not more than 20 years or less than 2 years.) In addition, we assess a fine in the amount of $ _______ ($0 - $10,000.00)
[12]In Barfield v. State, 202 S.W.3d 912, 917 (Tex. App.Texarkana 2006, pet. refd), this Court held that the submission of sudden passion as a special issue asking only whether [the jury] found Barfield acted under the immediate influence of sudden passion in conjunction with the general unanimity instruction was sufficient to guarantee a unanimous finding. Id. at 918.
[13]The punishment charge in London was identical to the punishment charge in Sanchez, which charge was determined by the Texas Court of Criminal Appeals to be erroneous. London, 325 S.W.3d at 207.
[14]The main defensive theory asserted by Johnson was self-defense. The jury was instructed on this defensive theory in the charge submitted to it during the guilt/innocence phase of the trial.
Document Info
Docket Number： 06-05-00133-CR
Filed Date： 11/30/2006
Precedential Status： Precedential
Modified Date： 9/7/2015