Opinion
No. 01-09-00350-CR
Opinion issued June 3, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the County Criminal Court at Law No. 15, Harris County, Texas, Trial Court Cause No. 1538503.
Panel consists of Justices JENNINGS, HANKS, and BLAND.
MEMORANDUM OPINION
A jury found appellant, Kimberly Kay Benton, guilty of conducting a sexually oriented business without a permit. See TEX. LOC. GOV'T CODE ANN. § 243.003 (Vernon 2005); HARRIS COUNTY, REGS. SEXUALLY ORIENTED BUS. § V (1996). The parties reached an agreement as to appellant's punishment, and in accordance with that agreement, the trial court sentenced appellant to one year in jail, suspended the sentence, and placed her on community supervision for two years. In seven points, appellant argues that the trial court erred by denying her motions to quash and for new trial because the charging instrument failed to provide sufficient notice of the charged offense; instructing the jury on the definition of "adult cabaret;" denying her motion for new trial because the State failed to disclose Brady evidence, amounting to a denial of due process; and denying her motion to suppress her oral statement. We affirm.
BACKGROUND
In June 2008, appellant contacted Sergeant Chris Montemayor of the Vice Unit at the Harris County Sheriff's Office. Appellant identified herself over the phone as Kimberly Benton, the manager of "Joy of Houston," and inquired about the regulations pertaining to a sexually oriented business (S.O.B.). Specifically, appellant asked what type of clothing the female entertainers at Joy of Houston should be wearing to operate legally. Montemayor informed appellant that Joy of Houston had not been issued a S.O.B. permit, and accordingly, the entertainers needed to be clothed in a full bikini and there could not be any type of sexual activity. Appellant testified that, after the phone call, she directed the entertainers to wear bikinis, and the girls complied for about a "week and a half" but then stopped following her directions. At trial, Sergeant Montemayor explained that the Harris County regulations required a business to have a permit if it fell under the regulation's definition of "sexually oriented business." This included any business that featured persons in semi-nude or nude state, or live performances of specified sexual activities. Montemayor explained that a business must obtain a permit before operating as a S.O.B. by submitting an application with a $2500 processing fee and meeting all of the regulations. Joy of Houston did not submit an application for a S.O.B. permit. Furthermore, Montemayor informed Joy of Houston that the business could not meet the regulations to obtain a permit. Montemayor testified that, when he spoke with appellant over the phone, he informed her that the business could not be issued a S.O.B. permit because it was within 1500 feet of residential dwellings, in violation of the regulations. Additionally, the business was in violation of the S.O.B. regulations prohibiting other structures on the business's property. Specifically, several trailer homes were located on Joy of Houston's business property. The Vice Unit received complaints that Joy of Houston was operating as a S.O.B. On June 11, 2008, Sergeant Montemayor and two other officers went to Joy of Houston in an undercover capacity to investigate the complaints. Montemayor observed activity that required a S.O.B. permit, including women dancing on stage wearing "transparent pasties" and "thong underwear." Additionally, Montemayor saw "women conducting lap dances on gentlemen throughout the club." On July 17, 2008, the officers returned to raid the club. First, several undercover officers went inside the club and, again, observed conduct that required a S.O.B. permit. The officers testified that they observed women topless, in a semi-nude state, and dancing in a manner that simulated sexual acts. While undercover, Deputy Dan Kributr observed appellant, who he believed to be a manager, "walking around on the main floor" of the club standing at different locations and looking around just prior to the raid. Kributr testified that there appeared to be two managers working that day and informed the raid team of this observation prior to their entrance. Deputy Terrance Burks also testified that he saw appellant on the main floor of the club speaking with another person that he believed to be a manager. Burks testified that appellant was facing the stage while female entertainers were performing in a semi-nude state. Later on July 17, 2008, additional uniformed officers arrived to raid the club. Montemayor assembled a "large raid team" of approximately 40 to 50 officers in order to secure all the areas of the club. The Joy of Houston was a "rather large club" and Montemayor estimated that there would be around a hundred people inside. Montemayor testified that the raid was executed according to the department's standard procedure. The raid team made entry, secured the scene, turned the music off, gathered all the people together, and started separating the employees, dancers, and customers. The patrons were identified, checked for outstanding warrants, and then were allowed to leave. Appellant identified herself as the general manager when the officers were trying to separate the patrons from the employees. Montemayor was given the task of taking statements of management at the club. After giving her the statutory warnings, Montemayor interviewed appellant and obtained her written statement, which contained the statutory warnings on the face of the document. Appellant initialled each of the rights and signed at the end of the written statement. When the written statement was offered into evidence at trial, appellant's trial counsel said, "We have no objection." In the written statement, appellant identified herself as Kimberly Benton, and stated, in relevant part:I was hired June 1st 2008 by Don May, who was the general manager at the time. He is no longer with the company at this time. I started June 4th 2008 as the day manager. On June 5th the lawyer who represents Spiro, the owner, came to the club and spoke to us about the licensing issue. He advised that he had applied for the SOB license on behalf of the club and we were due to have an inspection by Vice. Until then the girls were to wear full bottom bikini' [sic] and showed me picture as an example of what they should wear.
I then called the Harris County Sheriffs [sic] Office Vice unit and spoke to Sergeant C Montemayor who advised that in order to operate legally without an SOB permit the girls would have to wear full bikini tops and full bottoms.
I then made the girls were [sic] full bikinis. This lasted for about a week and a half. The attorney called back two days later and stated that we had had our inspection and we needed to move the four trailers off the property and that it would be twenty five hundred dollars for the license. At that time I questioned him on the clothing issue and he stated to me and the owner that now that we had an application in, the girls could now wear latex over their areolas, any color but flesh, and full bottoms.Montemayor testified that Joy of Houston had not applied for a S.O.B. permit, as appellant claimed in her statement. Appellant and Jason Watson, another manager working on July 17, 2008, were arrested for violating the S.O.B. regulation following the raid. At trial, appellant testified that she was an "office manager" during the day and spent about 90% of the time in the office. She testified that she was only on the floor of the club about 10% of the time. Appellant explained the hierarchy of the management at the club and said the owner (Spiro), the general manager (Don May), and the club manager (Phillip Dickey) were all superior to her. Appellant testified that the office manager and floor manager were at the bottom of the hierarchy and were equal positions. Appellant admitted that, after she was hired, Don May (the general manager) left the company. Appellant testified that the owner did not hire someone in his place but denied taking over the general manager's duties. Appellant testified that she had a S.O.B. Manager license that was issued by the City of Houston. She offered the license as Defense Exhibit 3, which featured her name, photograph, and title "Manager." Appellant testified that she acquired the license when she was employed as the floor manager for Rick's Cabaret. She testified that she knew Rick's Cabaret had a valid S.O.B. license because it was posted on the wall. Appellant testified that she never saw a valid S.O.B. license posted at Joy of Houston.
Sufficiency of the Charging Instrument
In her first two issues, appellant argues that the trial court committed reversible error by denying her motion to quash the information and her motion for new trial because the information failed to provide her with adequate notice to prepare her defense and it did not allege sufficient facts to bar a subsequent prosecution for the same offense. Specifically, appellant argues the information failed to identify the type of "adult cabaret" she was charged with conducting.A. Standards of Review
The sufficiency of a charging instrument is a question of law and is reviewed de novo. Smith v. State, 297 S.W.3d 260, 267 (Tex. Crim. App. 2009). An accused's constitutional right to sufficient notice may be satisfied by means other than the language in the charging instrument. Id. (citing Kellar v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003)). "When a motion to quash is overruled, a defendant suffers no harm unless he did not, in fact, receive notice of the State's theory against which he would have to defend." Id.; see also art. 21.19 ("An indictment shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect of form which does not prejudice the substantial rights of the defendant"). We review a trial court's denial of a motion for new trial for an abuse of discretion. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007) (citing Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004)).B. Applicable Law
Both the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Texas Constitution require the State to give an accused notice before trial of the nature and cause of the accusation against him. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. A "charging instrument must convey sufficient notice to allow the accused to prepare a defense." State v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim. App. 2008). Chapter 21 of the Texas Code of Criminal Procedure requires that an information set forth the offense in "plain and intelligible words" and include "[e]verything . . . which is necessary to be proved." TEX. CODE CRIM. PROC. ANN. arts. 21.03, 21.21(7), 21.23; see also Barbernell, 257 S.W.3d at 250-51. "An information is sufficient if it charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment." Barbernell, 257 S.W.3d at 251 (citing TEX. CODE CRIM. PROC. ANN. arts. 21.11, 21.23). Specifically, with regard to what language must be included, the Court observed:[I]n most cases a charging instrument that tracks the statutory text of an offense is sufficient to provide a defendant with adequate notice. When a statutory term or element is defined by statute, the charging instrument does not need to allege the definition of the term or element. Typically the definitions of terms and elements are regarded as evidentiary matters. But in some cases, a charging instrument that tracks the statutory language may be insufficient to provide a defendant with adequate notice. This is so when the statutory language fails to be completely descriptive. The statutory language is not completely descriptive when the statutes define a term in such a way as to create several means of committing an offense, and the definition specifically concerns an act or omission on the part of the defendant.Id. (internal citations omitted). Adequacy of notice requires a two step inquiry. Id. at 255. First, we must identify the elements of the offense. Id. The Penal Code defines elements of an offense as the forbidden conduct, the required culpability, any required result, and the negation of any exception to the offense. TEX. PENAL CODE ANN. § 1.07(a)(22) (Vernon 2003). Second, "when the Legislature has defined an element of the offense that describes an act or omission, a court must ask whether the definitions provide alternative manners or means in which the act or omission can be committed." Barbernell, 257 S.W.3d at 255. After conducting the above inquiry in Barbernell, the Court of Criminal Appeals held that an information alleging driving while intoxicated (DWI) did not need to more specifically allege which variation of the definition of "intoxicated" the State intended to prove. Id. at 256. The Court observed that "intoxicated" was an element of the offense that had two definitions under the statute but held that "the definitions of `intoxicated' [were] purely evidentiary matters" that "d[id] not need to be alleged in a charging instrument to provide a defendant with sufficient notice." Id. The Court explained:
The State's choice between the method of proving intoxication does not in any sense determine what acts, conduct or behavior of the accused that the State will rely on. Rather, the choice concerns the type of evidence the State will rely upon to show particular conduct by the accused — driving or operating a vehicle — performed while a particular circumstance — intoxication — existed.Id. (citing George E. Dix Robert O. Dawson, 41 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 20.314 (2d ed. 2001)).
C. Analysis
On March 10, 2009, appellant was charged by amended information with violating the Harris County Regulations for Sexually Oriented Businesses. In relevant part, the amended information alleged:KIMBERLY KAY BENTON, hereafter styled the Defendant, heretofore on or about JULY 17, 2008, did then and there unlawfully intentionally and knowingly conduct business, to wit: ADULT CABARET as a Class I enterprise, namely THE JOY OF HOUSTON MEN'S CLUB, an ADULT CABARET in an unincorporated area of Harris County, Texas, without a valid sexually oriented business permit issued in accordance with the Regulations for Sexually Oriented Businesses in the Unincorporated Area of Harris County, Texas.Section 5 of the Harris County Regulations for Sexually Oriented Businesses provides that:
No person shall conduct business as either a Class I or Class II sexually oriented business enterprise . . . without a valid Sexually Oriented Business Permit (SOBP) issued in accordance with these regulations.HARRIS COUNTY, REGS. SEXUALLY ORIENTED BUS. § V (1996). The Regulations provide the following definition for "Enterprise":
[A] sexually oriented business enterprise is a commercial enterprise the primary business of which is the offering of a service or the selling, renting or exhibit of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer. This definition includes but is not limited to: sex parlors; nude studios; modeling studios; love parlors; adult bookstores; adult movie theaters; adult video arcades; adult movie arcades; adult video stores; adult motels; adult cabarets; escort agencies; and sexual encounter centers.(1) enterprises are classified as follows:
(i) Class I enterprises conduct business regularly at a specific location.
(ii) Class II enterprises are individuals who offer, for compensation, a service intended to provide sexual stimulation or sexual gratification to patrons at any location in the County, unless that individual is an employee of a Class I enterprise working at a location permitted under a Class I SOBP.Id. § IV(q) (1996). The sexually oriented business regulations define "adult cabaret" as:
[A] nightclub, bar, restaurant, or similar commercial establishment that features:
(1) persons who appear semi-nude or in a state of nudity as defined in this section;
(2) live performances which are characterized by the exposure of specified anatomical areas or specified sexual activities as defined in this section; or
(3) films, motion pictures, computer simulations, video cassettes, slides or other reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical area as defined in this section.Id. § IV(c) (1996). Unlike the driving while intoxicated allegation in Barbernell which left "intoxicated" undefined, in the present case, the term "adult cabaret" is not an element of the offense. See Barbernell, 257 S.W.3d at 255; see also HARRIS COUNTY, REGS. SEXUALLY ORIENTED BUS. § V. The Harris County Regulation prohibits, and appellant was charged with, conducting a Class I enterprise without a valid sexually oriented business permit. Accordingly, our analysis ends at the first step. See Barbernell, 257 S.W.3d at 255 (applying two step inquiry that first considers whether term is element of offense). Appellant relies on Flores v. State to support her argument that the information did not sufficiently allege the manner and means of the violation. See 33 S.W.3d 907, 919 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). In Flores, the court held that an information alleging that the appellant "unlawfully intentionally and knowingly act[ed] as [an] entertainer" in a sexually oriented enterprise without a permit did not set forth all of the material elements of the offense. Id. at 917-19. Flores applied the City of Houston Ordinance (not the Harris County Regulation applicable to the present case), which defined "entertainer" as "[a]ny employee of an enterprise who performs or engages in entertainment." Id. at 918. "Entertainment" was defined as "[a]ny act or performance . . . that involves the display or exposure of specified sexual activities or specified anatomical areas or engaging in any specified sexual activities whatever in the presence of customers." Id. The court justified that the charging instrument in Flores needed to provide the specific act the accused was alleged to have performed that constituted "entertainment." Id. at 919 (holding "[t]he display of specific sexual activities or exposure of specific anatomical areas refers to characteristics of the act or performance that criminalize the act or performance" and thus, are facts essential to give notice). However, the court in Flores expressly distinguished its holding from that in Kaczmarek, which found a charging instrument to be sufficient that alleged the operation of a sexually oriented enterprise. Id. n. 3 (citing Kaczmarek v. State, 986 S.W.2d 287 (Tex. App.-Waco 1999, no pet.)). The court explained that, in Kaczmarek, a manager was charged with operating a sexually oriented enterprise that provided "entertainment," but because "entertainment" in the charging instrument did not involve the defendant manager's conduct, it need not be stated with greater specificity. Id. Here, like Kaczmarek, appellant (a manager) is charged with operating a sexually oriented business, not performing entertainment like in Flores. Compare Flores, 33 S.W.3d at 919, and Kaczmarek, 986 S.W.2d at 265. The information in the present case tracks the language of the regulation and specifies the type of enterprise appellant was alleged to have been operating, namely an "adult cabaret." We therefore hold that appellant was provided with sufficient notice of the charges and the trial court's denial of appellant's motion to quash was appropriate. See Kaczmarek, 986 S.W.2d at 265. Furthermore, even if the trial court erred by denying the motion to quash, appellant suffered no harm because she was provided sufficient notice of the allegations from the offense report. See Smith, 297 S.W.3d at 267. In fact, appellant offered the offense report as an exhibit to her pretrial motion to quash. Appellant argued that she used the report to inform herself of the allegations against her and that the report only provided sufficient notice of one theory of adult cabaret: that the entertainers were in a "semi-nude state." Further, appellant argued that she "received no notice through either the charging instrument or the incident report" that she was charged with "conduct[ing a] business by featuring live performances involving specified sexual activities." However, appellant fails to point out the language in the very next paragraph of the offense report alleging that the dancers performed "by grinding their buttocks in the laps of customers, which simulated sexual acts[.]" Because appellant concedes that she used the report to inform herself of the allegations against her, she was provided sufficient notice of the State's allegations. Because we conclude that the trial court did not err in denying the motion to quash and that appellant was provided with sufficient notice of the charges, we hold that the trial court did not abuse its discretion by denying the motion for new trial on this issue. We overrule appellant's first and second issues.
Jury Charge
In her seventh issue, appellant argues that the trial court erred by providing the regulatory definition of "adult cabaret" in the jury charge, which "allowed the jury to make a finding of guilt on a theory not alleged in the information and not supported by the evidence." At the charge conference, appellant objected to the portion of the charge that provided the definition of "adult cabaret" as stated in the regulation. Trial counsel argued that parts 2 and 3 of the regulatory definition should not be included because the State only provided notice of allegations under part 1 of the definition and there was no evidence at trial that would fit under parts 2 or 3. The State agreed that there was no evidence of part 3 and agreed to that part being deleted from the definition in the charge. The court submitted a charge that included parts 1 and 2 of the regulation's definition of "adult cabaret." On appeal, appellant argues that the court erroneously included part 2.A. Standard of Review
"[A]n appellate court's first duty in evaluating a jury charge issue is to determine whether error exists." Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If error is found, the appellate court should conduct a harm analysis in light of whether the error was preserved. Id. B. Applicable Law A defendant is to be tried only on the crimes alleged in the charging instrument. See Abdnor v. State, 871 S.W.2d 726, 738 (Tex. Crim. App. 1994). The jury charge must not enlarge the offense alleged and authorize the jury to convict the defendant on a basis or theory permitted by the jury charge but not alleged in the indictment. See Fella v. State, 573 S.W.2d 548, 548 (Tex. Crim. App. 1978). "A trial court is statutorily obligated to instruct the jury on the law applicable to the case." Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009); see TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007). That statutory obligation requires that each statutory definition that affects the meaning of an element of the offense be communicated to the jury. Id. C. Analysis In the present case, appellant was charged by information with intentionally and knowingly conducting a Class I enterprise without a valid S.O.B. permit. The information specified that the type of S.O.B. was an adult cabaret. In the charge to the jury, the trial court provided the legal definitions from the regulation relating to the charged offense. The court's charge provided the regulatory definition of "adult cabaret," stating in relevant part:"Adult Cabaret" means a nightclub, bar, restaurant, or similar commercial establishment that features:
(1) persons who appear semi-nude or in a state of nudity as defined in this section; or
(2) live performances which are characterized by the exposure of specified anatomical areas or specified sexual activities as defined in this section[.]
The trial court also set forth the following definitions of "semi-nude" and "specific sexual activities":
"Semi-nude" means any state of dress which opaquely covers no more than a human buttock, anus, male genitalia, female genitalia or areola of a female breast.
"Specific Sexual Activities" includes any of the following:
(1) fondling or other erotic touching of human genitals, pubic region, buttocks, anus or female breasts, whether clothed or nude;
(2) sex acts, actual or simulated, including intercourse, oral copulation, or sodomy,
(3) masturbation, actual or simulated.Appellant contends that the inclusion of part 2 of the "adult cabaret" definition was erroneous for two reasons: (1) it allowed the jury to convict her on an unpled element, and (2) the element was not supported by the evidence. Here, the charging instrument did not allege conduct with such specificity as to limit the offense to one particular subpart of the "adult cabaret" definition. Appellant cites Castillo v. State for the proposition that the jury charge may not enlarge the alleged offense or permit the jury to convict the defendant for a crime different from that described in the charging instrument. 7 S.W.3d 253, 258 (Tex. App.-Austin 1999, pet. ref'd). The indictment in Castillo pled with specificity the precise way the appellant caused serious bodily injury to a child. Id. at 255. Castillo explained:
The State was not required to plead the precise way in which appellant [committed the charged offense]. By including a more specific description, the State undertook the burden of proving the specific allegations to obtain a conviction.Id. (citing Bohnet v. State, 938 S.W.2d 532, 535 (Tex. App.-Austin 1997, pet. ref'd)). Here, the State did not provide a more specific description in the information that would warrant narrowing the regulatory definition in the jury charge. See id. Because "adult cabaret" was defined in the regulation and that definition affected an element of the offense, the trial court did not err in providing the jury with the definition. See Villarreal, 286 S.W.3d at 329; see also TEX. CODE CRIM. PROC. ANN. art. 36.14. Lastly, appellant asserts that there was no evidence presented at trial of the activities falling under the second subpart of the "adult cabaret" definition. However, the record contains ample evidence, including officers' testimony that they observed women performing "lap dances," "gyrating," "hump[ing] the stage," "rubbing their bare breasts near or up against customer's faces." We overrule appellant's seventh issue.