Marion Thompson v. State ( 2001 )

No. 04-00-00348-CR

Marion THOMPSON,

Appellant

v.

The STATE of Texas,

Appellee

From the County Court at Law No. 3, Bexar County, Texas

Trial Court No. 106,192

Honorable Shay Gebhardt, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Alma L. López, Justice

Sarah B. Duncan, Justice

Delivered and Filed: January 17, 2001

AFFIRMED

A jury convicted appellant, Marion Thompson, of making unreasonable noise, under the Texas Disorderly Conduct statute, and assessed a $250 fine. Appellant raises numerous constitutional and procedural challenges to the trial court's judgment; however, we find that the appellant's constitutional rights were not violated and the trial court's errors, if any, were harmless. Therefore, we affirm.

BACKGROUND

On a Saturday morning in April 1998, appellant and fifteen others were protesting in front of an abortion clinic. The protesters were praying, preaching, and carrying signs. A female protester spoke through an electronic megaphone, and the appellant spoke through a large cardboard megaphone, similar to the type used by cheerleaders.

Eventually, someone inside the clinic called the police. By the time the police arrived, only five or six protesters remained. One of the officers, Robert Urdiales, told the appellant and the woman using the electronic megaphone they were causing a disturbance and he asked them to stop using their megaphones. The woman stopped using her megaphone, but continued her protest. She was not told to stop protesting. The appellant refused to stop using his megaphone, and he was arrested pursuant to the Texas Disorderly Conduct statute. See Tex. Pen. Code Ann. § 42.01(a)(5) (Vernon Supp. 2000). ⁽¹⁾ He was the only protester arrested.CONSTITUTIONALITY OF TEXAS PENAL CODE SECTION 42.01(a)(5)

Appellant asserts Section 42.01(a)(5) is unconstitutional, both prima facie and as applied to him, under the First Amendment to the United States Constitution and Article I, sections 6 and 8 of the Texas Constitution. As with any statute, we begin with the presumption of constitutionality. Tex. Gov't. Code Ann. § 311.121 (Vernon 1998).

Before addressing the substance of appellant's argument, we conclude that we need not address appellant's Texas constitutional claims. Appellant has proffered no argument or authority concerning the protection provided by the Texas Constitution or how that protection differs from the protection provided by the United States Constitution. State and federal constitutional claims should be argued in separate grounds, with separate substantive analysis or argument provided for each ground. Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App. 1993); Heitman v. State, 815 S.W.2d 681, 690-91 n. 23 (Tex. Crim. App. 1991). We will not make appellant's state constitutional arguments for him. Munoz, 851 S.W.2d at 252.

Whether Section 42.01(a)(5) is Overbroad

Appellant contends Section 42.01(a)(5) is overbroad because it denies him his constitutional right of free speech.

It is within the State's police power to protect the tranquility, quiet enjoyment, and well-being of the community. Reed v. State, 794 S.W.2d 806, 808 (Tex. App.--Houston [14th Dist.] 1990, pet. ref'd); Blanco v. State, 761 S.W.2d 38, 40 (Tex. App.--Houston [14th Dist.] 1988, no pet.). This right of the State is limited only by individual constitutional rights, such as First Amendment free speech. Blanco, 761 S.W.2d at 40. Consequently, in analyzing a facial challenge to the overbreadth of a law, we first determine if the statute reaches a substantial amount of constitutionally protected conduct. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S. Ct. 1186, 1191 (1982); Blanco, 761 S.W.2d at 40. The present statute does not. Blanco, 761 S.W.2d at 40.

Section 42.01(a)(5) punishes conduct that results in "unreasonable noise" in a public place or in or near a private residence. However, any such conduct that consists of speech or other communication is shielded from Section 42.01(a)(5) by a sister statute that creates a defense where any conduct consists of "speech or other communication, of gathering with others to hear or observe such speech or communication, or of gathering with others to picket or otherwise express in a nonviolent manner a position on social, economic, political, or religious questions . . . ." Tex. Penal Code Ann. § 42.04 (Vernon 1994). Section 42.04 requires that the actor "be ordered to move, disperse, or otherwise remedy the violation prior to his arrest if he has not yet intentionally harmed the interests of others which [Sections 42.01(a)(5) or 42.03] seek to protect." Id. Therefore, Section 42.04 effectively limits the reach of the unreasonable noise provision when constitutionally protected speech or conduct is at issue. Blanco, 761 S.W.2d at 40; Bowie v. State, 841 S.W.2d 963, 964 (Tex. App.--Beaumont 1992, no pet.); see also Reed, 794 S.W.2d at 808 (holding that Section 42.03 ("Obstructing Highway or Other Passageway") was not overbroad because of protection afforded by Section 42.04). Further, even without the speech defense of Section 42.04, courts have held that unreasonable noise is not protected speech. See Blanco, 761 S.W.2d at 40 and cases cited therein. Because Section 42.01(a)(5) does not threaten constitutional conduct or speech, appellant's overbreadth challenge must fail. Id. at 41 (holding that Section 42.01(a)(5) was not overbroad).

Whether Section 42.01(a)(5) is Vague

Appellant asserts the term "unreasonable noise" is vague because its meaning varies with each listener and invites arbitrary and discriminatory police enforcement.

A law that does not reach constitutionally protected conduct and therefore satisfies the overbreath test may nonetheless be challenged on its face as unduly vague, in violation of due process. Hoffman Estates, 102 S. Ct. at 1193. A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice that the statute forbids the contemplated conduct and if it encourages arbitrary and erratic arrests and convictions. Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 843 (1972). Though based on fairness, the vagueness doctrine "is not a principal designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited." Colten v. Commonwealth of Kentucky, 407 U.S. 104, 92 S. Ct. 1953, 1957 (1972).

Because we are limited to the use of words, we can never demand mathematical certainty from our language. Grayned v. City of Rockport, 408 U.S. 104, 92 S. Ct. 2294, 2300 (1972). While Section 42.01(a)(5) does not define "unreasonable noise," words not defined are to be given their plain meaning. Blanco, 761 S.W.2d at 42. "Noise" commonly means a loud, confused, or senseless outcry; a sound noticeably loud, harsh, or discordant; or a din or uproar of persons. Webster's Third New International Dictionary, 1533 (1981). "Unreasonable" is modified by intentionally or knowingly and is an objective, reasonable man standard. Blanco, 761 S.W.2d at 42. The intent requirement mitigates any possible vagueness and further narrows the meaning of the statute. Hoffmann Estates, 102 S. Ct. at 1193-94. This narrowness ensures that those of ordinary intelligence have reasonable opportunity to know what is prohibited and ensures that no discriminatory enforcement is likely to occur. Blanco, 761 S.W.2d at 41 (holding that Section 42.01(a)(5) was not vague); Bowie, 841 S.W.2d at 964-65 (same).

Further, Section 42.01(a)(5) does not allow for broad discriminatory or subjective enforcement. Although it does allow some degree of police judgment, that degree is confined to the reasonableness of the noise and the demonstrated intent of the violator. Blanco, 761 S.W.2d at 42; see also Grayned, 92 S. Ct. at 2302 (vagueness dispelled by ordinance's requirement that acts be "willfully done"). Any statute, save those of strict liability, necessarily involves police discretion for enforcement. Blanco, 761 S.W.2d at 42. The Texas Disorderly Conduct statute likewise involves police discretion in maintaining the public peace while guaranteeing to every citizen fair notice of proscribed conduct. Id.

The appellant had adequate notice that his continued use of the megaphone was prohibited. He had a clear choice between acting lawfully or unlawfully; he chose to continue using his megaphone. His conduct falls within the core of conduct proscribed by Section 42.01(a)(5). He cannot now claim lack of fair warning that he was at criminal risk.

DENIAL OF MOTION FOR CONTINUANCE

Appellant asserts the trial court erred in denying his motion for continuance because three witnesses violated subpoenas and did not appear. Appellant argues the trial court's denial of his motion for continuance is constitutional error because it violates his right of confrontation and right to compulsory process. Tex. R. App. P. 44.2(a) (Constitutional Error).

While nearly any error can be said to somehow involve a constitutional right, the error complained of here is not granting a continuance of trial. A motion for continuance is regulated by statute. See Tex. Code Crim. Proc Ann. art. 29.01, et. seq. (Vernon 1989 & Supp. 2000). Because the right to a continuance is a statutory right, not a constitutional right, harm analysis must be conducted under Rule 44.2(b). Under this appellate standard, reversal is required only if the appellant's substantial rights were adversely affected.

Granting or denying a motion for continuance is within the sound discretion of the trial court. See Article 29.01, et. seq.; Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996); Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). In order to establish an abuse of the trial court's discretion, an appellant must show that the denial of his motion resulted in actual prejudice. Janecka, 937 S.W.2d at 468. Appellant asserts he should have been allowed to question the other officers at the scene to establish why he was arrested and to contradict Urdiales' testimony that he "bumped" another officer. However, appellant has not established any specific harm arising from the trial court's denial of his motion for continuance. Appellant's conclusory statement that he was harmed because he was denied the right to present a defense does not establish that the trial court abused its discretion.

STATE'S QUESTIONS REGARDING CHOICE OF COUNSEL

The State asked the appellant why he would not enter a plea without counsel. Defense counsel objected, and the objection was sustained. When the State continued the line of questioning, defense counsel again objected. The trial court overruled the objection. Appellant argues, in a conclusory fashion, that the trial court's ruling amounted to constitutional error. Appellant offers no authority to support this contention, and has waived error. Tex. R. App. P. 38.1(h).

DIRECTED VERDICT

At the close of the State's case-in-chief, appellant asked for a directed verdict, which was denied. Appellant contends the State did not prove he intentionally and knowingly made unreasonable noise or that a person in a private residence actually heard the noise.

The standard for review applicable to a motion for directed verdict is the same as that used in reviewing the legal sufficiency of the evidence. Havard v. State, 800 S.W.2d 195, 199 (Tex. Crim. App. 1989). The reviewing court must consider all the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found beyond a reasonable doubt all the elements of the offense. Id.

Contrary to appellant's assertions, Section 42.01(a)(5) does not require proof that a homeowner actually heard the complained-of noise. Section 42.01(a)(5) requires only that the unreasonable noise be "in or near a private residence" that the defendant has no right to occupy. Officer Urdiales testified that the unreasonable noise occurred outside an abortion clinic that was located about 50 feet from a mobile home park. Urdiales said if he had been asleep inside one of the mobile homes, the noise would have awakened him. Urdiales participated in a demonstration with the prosecutor, using the appellant's megaphone, to show the jury the level of noise made by the appellant. The clinic's administrator testified the noise was so loud inside the clinic that the doctor had to speak louder to be heard by the patients, and one of the patients put her hands over her ears.

The State also produced evidence that the appellant intentionally and knowingly made unreasonable noise. Urdiales told appellant that he was making unreasonable noise and asked him to stop using the megaphone. Appellant refused.

The evidence was sufficient for a rational trier of fact to have found beyond a reasonable doubt that appellant intentionally and knowingly made unreasonable noise at or near a private residence.EXPERT TESTIMONY

Defense counsel called Ruben Castillo, a City of San Antonio Code Compliance officer as an expert witness. The trial court did not allow Castillo to testify as an expert. On appeal, appellant contends that because the jury was not allowed to hear Castillo's testimony, he was denied the opportunity to demonstrate that an objective measurement of noise decibels could have been taken at the time of his arrest.

The admissibility of evidence under Texas Rules of Evidence 403 ⁽²⁾ and 702 ⁽³⁾ is determined by the trial court, and that determination will not be reversed on appeal unless the trial court abused its discretion. Ortiz v. State, 834 S.W.2d 343, 346-47 (Tex. Crim. App. 1992); see also Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991). The question of whether a witness offered as an expert possesses the required qualifications rests largely in the trial court's discretion. Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995). Absent a clear abuse of that discretion, the trial court's decision to admit or exclude testimony will not be disturbed. Id. The threshold determination for a trial court to make regarding the admission of expert testimony is whether that testimony will help the trier of fact understand the evidence or determine a fact in issue. Duckett v. State, 797 S.W.2d 906, 910 (Tex. Crim. App. 1990). The party proffering the expert witness bears the burden of showing that the witness is qualified on the specific matter in question. Penry, 903 S.W.2d at 766.

Defense counsel attempted to lay a foundation for Castillo's expertise regarding noise. However, Castillo's testimony indicated that his expertise lay in reading noise decibel levels, not in noise generally. Because there was no decibel level reading in this case, and Section 42.01(a)(5) does not contain such a requirement, the trial court did not abuse its discretion in determining Castillo's testimony was not relevant and would not assist the jury.

THE STATE'S QUESTIONS

The appellant asserts the trial court erred in allowing the State to (1) accuse him of being a stalker, (2) question him about an unrelated subsequent event, and (3) ask him whether he owned or had ever used a gun. Appellant contends the trial court's rulings were error because the sole purpose behind the State's questions was to "infuriate the jury," thus denying him a fair trial.

A reviewing court should disregard the erroneous admission of evidence if the overwhelming evidence indicates that the erroneous evidence did not adversely affect the jury's verdict, or had only a slight effect on the jury's verdict. Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989). However, "it is the effect of the error and not the other evidence that must dictate the reviewing court's judgment." Id. at 588. In exercising its judgment, the Harris Court instructed the reviewing court to consider: (1) the source of the error, (2) the nature of the error, (3) whether or to what extent it was emphasized by the State, (4) the probable collateral consequences of the error, (5) how much weight a juror would probably place on an error, and (6) whether declaring the error harmless would encourage the State to repeat it with impunity. Id. at 587.

Here, there was ample evidence to support the jury's verdict. The source of the error, if any, was the trial court because the alleged error was brought to the court's attention by defense counsel's objections. There is little likelihood the error will be repeated with impunity given that the prosecutor never mentioned the so-called "stalking" incident or appellant's ownership of a gun during closing argument. After looking at the record as a whole, we conclude that any potential impact of the testimony was, at best, slight. Consequently, any error committed by the trial court in admitting the evidence was harmless.

THE JURY CHARGE

The appellant asserts the trial court erred in denying his request for jury instructions (1) on his rights under the United States and Texas Constitutions regarding free speech, free exercise of religion, and assembly; (2) informing the jury of an "unreasonable noise presumption"; ⁽⁴⁾ and (3) allowing the jury to consider why certain witnesses were unavailable at trial.

Appellant argues, in a conclusory fashion, that the trial court's rulings amounted to reversible error. Appellant offers no authority to support this contention, and has waived error. Tex. R. App. P. 38.1(h).

CONCLUSION

We overrule appellant's points of error and affirm the trial court's judgment.

Tom Rickhoff, Justice

DO NOT PUBLISH

1. Section 42.01(a)(5) makes it a crime if an individual, intentionally or knowingly, "makes unreasonable noise in a public place other than a sport shooting range, as defined by Section 250.001, Local Government Code, or in or near a private residence that he has no right to occupy." Tex. Pen. Code Ann. § 42.01(a)(5) (Vernon Supp. 2000).

2. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403.

3. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Tex. R. Evid. 702.

4. The appellant requested the following instruction: "A person is presumed to have made 'unreasonable noise' if after he receives notice from a magistrate or a peace officer, he makes a noise that exceeds 85 decibels."