No. 05-08-00707-CR
Opinion Filed May 8, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the County Court at Law No. 3, Collin County, Texas, Trial Court Cause No. 003-81453-06.
Before Justices FITZGERALD, LANG, and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice LANG.
Amanda Jean Florance, pro se, appeals two county court judgments in her appeal from the municipal court by trial de novo. The first judgment from which she appeals is one acquitting her of the offense of failure to appear in trial court cause no. 003-81451-06. The second judgment is one convicting her of consumption of alcohol by a minor in trial court cause no. 003-81453-06. The second judgment was rendered after a jury found Florance guilty of consumption of alcohol by a minor, a Class C misdemeanor, and the county court assessed her punishment at a fine in the amount of $75. Florance raises nine issues on appeal arguing: (1) this case is a civil appeal and, as a result, the municipal court never had jurisdiction; (2) her right to due process is violated by article 45.0215 of the Texas Code of Criminal Procedure, which requires parents of minors subject to municipal and justice court proceedings to be summoned before the court accepts a not guilty plea; (3) her right to due process is violated by article 4.03 of the Texas Code of Criminal Procedure, which provides that courts of appeals do not have jurisdiction over cases appealed from an inferior court to the county court, in which the fine imposed by the county court does not exceed one hundred dollars, unless the sole issue is the constitutionality of the statute on which the conviction is based; (4) her right to due process is violated by Texas Rule of Appellate Procedure 25.2(d), which requires the trial court to certify the defendant's right of appeal; (5) section 106.04 of the Texas Alcoholic Beverage Code is unconstitutional because it is vague and over broad, invades her right to privacy, it is codified outside the penal law without a commercial nexus, and fails to require a culpable mental state; (6) the evidence is insufficient because there is no evidence to prove a commercial nexus or public context to the offense and no evidence of mens rea; (7) her right to due process was violated by the trial court's instructions to the jury because those instructions failed to include the culpable mental state; (8) the police seized her without probable cause or an arrest warrant and failed to give her the Miranda warnings before administering the breathalyzer test; and (9) the county court erred when it entered a judgment of acquittal in the failure to appear case because both the municipal court and county court did not have jurisdiction and should have ordered the case dismissed. In addition, Florance argues we should also consider each issue challenging a statute to include an independent issue seeking a declaratory judgment. We conclude this case should be reclassified as an appeal of a criminal conviction. This Court does not have jurisdiction to review Florance's issue appealing the county court's judgment in trial court cause no. 003-8145106, acquitting her in the failure to appear case. Florance's issue appealing the county court's judgment in trial court cause no. 003-8145106 is dismissed. Also, because the county court assessed her punishment at a fine in the amount of $75, this Court does not have jurisdiction to review Florance's issues other than her challenge to the constitutionality of the statute on which her conviction is based, i.e., section 106.04 of the Texas Alcohol and Beverage Code. We conclude that statutory section is not unconstitutional. The county court's judgment in trial court cause no. 003-81453-06 is affirmed.
I. CLASSIFICATION OF THE APPEAL
As a preliminary matter, we must address the classification of this appeal. The State argues this case was improperly reclassified as a civil appeal of a juvenile proceeding. The State contends that, although Florance was a minor at the time of the offense, she was charged with a Class C misdemeanor punishable by a fine only and tried in a criminal court. Also, the State argues the case was never transferred to juvenile court, so the special provisions for juvenile proceedings do not apply. In her first issue, Florance argues this Court properly reclassified this case as a civil appeal and, as a result, the municipal court should have dismissed the case for lack of jurisdiction. See also In re A Purported Lien or Claim Against Taylor, 219 S.W.3d 620, 621 (Tex.App.-Dallas 2007, no pet.), cert. denied Florance v. Taylor, 128 S.Ct. 317 (2007). A. This Court Reclassified the Criminal Appeal as a Civil Appeal on its Own Motion
This appeal was belatedly filed with this Court due to the county clerk's inadvertent failure to transmit the notice of appeal when it was filed. The notice of appeal was filed in July 2006 and signed by both Florance and her father, Richard John Flroance, Jr., but was not received by this Court until May 2008. Based on the information in the notice of appeal and the docketing statement, the appeal was docketed as a criminal appeal. On June 16, 2008, this Court abated the appeal and ordered the county court to make certain findings regarding indigence, appellate counsel, and the record. On July 25, 2008, this Court reinstated the appeal and adopted the county court's findings derived after a hearing that: (1) Florance was tried in cause nos. 003-81451-06 and 003-81453-06; (2) a verdict of not guilty was returned in trial court cause no. 003-81451-06, but Florance filed a notice of appeal anyway; (3) the notice of appeal also referenced trial court cause no. 003-81453-06 for which a finding of guilty was entered; (4) Florance desired to prosecute the appeal; (5) Florance is not indigent; (6) Florance requested and paid for the reporter's record; (7) the court reporter tendered the record to this Court, but it was returned to her when no notice of appeal was filed with this Court; (8) Florance had not yet formally requested or paid for the clerk's record; and (9) Florance had not yet retained counsel and is not eligible for court-appointed counsel. Also, after reviewing the record of the county court's hearing, this Court noted that Florance told the county court she was sixteen at the time of the offense of consumption of alcohol by a minor for which she was convicted and fined. Also, Florance was twenty years of age at the time of that hearing. In light of the county court's findings and the information contained in the reporter's record, this Court directed the Clerk of this Court to change the style of the case to " In the Matter of A.F., A Minor," to identify the appeal as a civil appeal, rather than a criminal appeal, and to list Richard Florance as the contact person for the appeal. B. Appeal Classified as Criminal or Civil?
We now review the matter of classification by examining the following considerations. First, although Florance was sixteen years of age at the time of the offense, the municipal court's judgment in trial court cause no. 2005007697 was styled "State v. Florance, Amanda Jean," and states she entered a plea of not guilty, the jury found her guilty of the offense of consumption of alcohol by a minor, a Class C misdemeanor, and the municipal court assessed her punishment at a fine in the amount of $305. Compare Tex. Code Crim. Proc. Ann. art. 37.07 § 1(b) (Vernon Supp. 2008), 42.01 § 1 (Vernon 2006), with Tex. Fam. Code Ann. § 54.03(f) (Vernon 2008). Similarly, in the appeal by trial de novo, the county court's judgment in trial court cause no. 003-81453-06 was styled "The State of Texas vs. Amanda Jean Florence [sic]," and states she entered a plea of not guilty before the jury, the jury found her guilty of the misdemeanor offense of consumption of an alcoholic beverage by a minor, and the county court assessed her punishment at a fine in the amount of $75. Compare Tex. Code Crim. Proc. Ann. art. 37.07 § 1(b), 42.01 § 1, with Tex. Fam. Code Ann. § 54.03(f). The judgment acquitting Florance of the offense of failure to appear in trial court cause no. 003-81451-06 was styled "The State of Texas vs. Amanda Jean Florence [sic]," and states she entered a plea of not guilty before the jury and the jury found her not guilty. Compare Tex. Code Crim. Proc. Ann. art. 37.07 § 1(b), 42.01 § 1, with Tex. Fam. Code Ann. § 54.03(f). Second, municipal courts have jurisdiction of prosecutions for violations of section 106.04 of the Texas Alcoholic Beverage Code. See Tex. Code Crim. Proc. Ann. art. 4.14(b) (Vernon 2005); see also Op. Tex. Att'y Gen. No. DM-427 (1996); Op. Tex. Att'y Gen. No. JM-380 (1985). The parties do not allege and there is nothing in the record indicating Florance was previously convicted of two or more misdemeanors punishable by fine only, which would have required the transfer of her case to the juvenile court. See Tex. Fam. Code Ann. § 51.08(b)(1). Further, there is nothing suggesting the municipal or county courts in their discretion transferred or intended to transfer Florance's cases to juvenile court. See id. § 51.08(2). Third, the municipal court, county court, and the State have not treated the records in this case as confidential, e.g., they use Florance's full name on documents. See Tex. Fam. Code Ann. §§ 58.005, 58.007(a). Nor does the record show there has been a motion or order sealing the records in this case. See id. § 58.003(a). Finally, during the appeal by trial de novo in the county court, Florance stated she was eighteen years old and she represented herself. Compare Tex. Code Crim. Proc. Ann. art. 1.051 (Vernon 2005), 45.060, 45.0215(a), (b), 45.057(e), 45.0215(b) (Vernon 2006), with Tex. Fam. Code Ann. §§ 51.09, 51.10(b). Florance's father wanted to ask questions and assist her in the trial. The State objected to her father's participation on the ground that it constituted the unauthorized practice of law without a license. The county court told Florance's father he would not be permitted to ask questions of witnesses or advocate on his daughter's behalf. Although the record shows Florance was sixteen at the time of the offense, it does not show how old Florance was at the time of her trial in the municipal court. Also, the record does not contain a reporter's record for the municipal court proceedings, so there is nothing in the record showing the type of representation Florance received during those proceedings, except that the municipal court's judgment states "the defendant appeared without counsel." We conclude these proceedings are criminal. Accordingly, we reclassify this case as an appeal of a criminal proceeding. Issue one is decided against Florance. II. JURISDICTION
First, in issue nine, Florance argues the county court erred when it entered a judgment of acquittal in the failure to appear case because both the municipal court and county court did not have jurisdiction and should have ordered the case dismissed. The State responds that judgments of acquittal do not present a legal issue for the courts of appeal to resolve. A defendant in a criminal case has the right to appeal a judgment of conviction. See Tex. R. App. P. 25.2(a)(2) (defendant has right to appeal and trial court shall enter certification of defendant's right to appeal each time it enters judgment of guilt or other appealable order); see also Florance v. State, No. 05-08-00724-CR, 2008 WL 2426719, *1 (Tex.App.-Dallas Jun. 17, 2008, pet. ref'd) (mem. op.) (not designated for publication) (as a general rule, an appellate court may consider appeals by criminal defendant only after conviction), cert. denied 129 S.Ct. 1355 (2009); cf. Tex. Code Crim. Proc. Ann. art. 44.01 (Vernon Supp. 2008) (describing State's right to appeal); Tex. R. App. P. 25.2(a)(1) (same). Accordingly, we do not have jurisdiction to review issue nine, where Florance challenges her judgment of acquittal in the failure to appear case. Second, Florance argues we should consider each issue challenging a statute to include an independent issue seeking a declaratory judgment. A defendant may not seek declaratory relief regarding the constitutionality of the enforcement of criminal laws. See In the Matter of A.F., No. 05-05-01435-CV, 2006 WL 1728035, *2 (Tex.App.-Dallas Jun. 13, 2006, pet. denied) (mem. op.) (citing Franklin v. Kyle, 899 S.W.2d 405, 409 (Tex.App.-Waco 1995, no pet.)), cert. denied A.F. v. Texas, 549 U.S. 1208 (2007). Accordingly, we do not have jurisdiction to review Florance's declaratory judgment claims. Third, in issues six through eight, Florance directly appeals her judgment of conviction for consumption of alcohol by a minor. In issues two through four, Florance challenges the constitutionality of articles 45.0215 and 4.03 of the Texas Code of Criminal Procedure and Texas Rule of Appellate Procedure 25.2(d). The States argues the county court assessed Florance's punishment at a fine in the amount of $75 and an intermediate court of appeals has jurisdiction over criminal appeals from the county courts only if the fine imposed exceeds $100. The courts of appeals have appellate jurisdiction in all criminal cases except those in which the death penalty has been assessed. See Tex. Code Crim. Proc. Ann. art. 4.03 (Vernon 2005). However, that jurisdiction does not embrace any case which has been appealed from an inferior court to the county court in which the fine imposed by the county court does not exceed $100, unless the sole issue is the constitutionality of the statute on which the conviction is based. See id. Accordingly, we do not have jurisdiction to review issues six through eight, which challenge Florance's judgment of conviction because the trial court assessed her punishment at a fine in the amount of $75. See id. Also, although Florance challenges the constitutionality of various statutes and rules in issues two through four, we do not have jurisdiction to review those issues because they challenge the constitutionality of statutes and rules other than the statute on which she was convicted. See id. We have jurisdiction only to review the constitutionality of the statute on which Florance's judgment of conviction is based, i.e., section 106.04 of the Texas Alcoholic Beverage Code. See id. Accordingly, we will address issue five. In issue five, Florance argues section 106.04 of the Texas Alcoholic Beverage Code is unconstitutional because it is vague and over broad, invades her right to privacy, it is codified outside the penal law without a commercial nexus, and it fails to require a culpable mental state. The State responds the statute clearly proscribes minors from consuming alcohol, the statute does not invade her right to privacy because the State has a legitimate interest in preventing minors from consuming alcohol, and the statute is not required to have a culpable mental state because it plainly dispenses with the requirement and does not restrict freedom of speech. Section 106.04 of the Texas Alcoholic Beverage Code provides: (a) A minor commits an offense if he consumes an alcoholic beverage.
(b) It is an affirmative defense to prosecution under this section that the alcoholic beverage was consumed in the visible presence of the minor's adult parent, guardian, or spouse.
(c) An offense under this section is punishable as provided by Section 106.071.
(d) A minor who commits an offense under this section and who has been previously convicted twice or more of offenses under this section is not eligible for deferred disposition. For the purposes of this subsection:
(1) an adjudication under Title 3, Family Code, [footnote omitted] that the minor engaged in conduct described by this section is considered a conviction of an offense under this section; and
(2) an order of deferred disposition for an offense alleged under this section is considered a conviction of an offense under this section.
Tex. Alco. Bev. Code Ann. § 106.04 (Vernon 2007). A. Standard of Review
When a reviewing court is confronted with an attack on the constitutionality of a statute, it presumes the statute is valid and the legislature has not acted unreasonably or arbitrarily. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App. 1978); see also State v. Florance, No. 05-07-00088-CR, 2007 WL 2460088, *3 (Tex.App.-Dallas Aug. 31, 2007, pet. dism'd) (not designated for publication). The burden rests on the individual who challenges the statute to establish its unconstitutionality. Ex parte Granviel, 561 S.W.2d at 511; see also Florance, 2007 WL 2460088 at *3. In the absence of contrary evidence, a reviewing court presumes the legislature acted in a constitutionally sound fashion. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App. 2002); see also Florance, 2007 WL 2460088 at *3. If a statute does not substantially implicate constitutionally protected conduct or speech, it is valid unless it is impermissibly vague in all applications. State v. Holcombe, 187 S.W.3d 496, 499 (Tex.Crim.App. 2006) (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)), cert. denied, 549 U.S. 824 (2006); see also Florance, 2007 WL 2460088 at *3. B. Section 106.04 is Not Vague or Over Broad
Florance argues section 106.04 is vague and over broad because according to her, the statute provides no notice or fair warning that persons will be held criminally responsible for conduct they could not reasonably understand to be proscribed. The State responds that section 106.04 is not vague because it unambiguously provides it is an offense for a minor to consume alcohol and section 106.01 defines a minor as a person under the age of twenty-one. See Tex. Alco. Bev. Code Ann. §§ 106.01, 106.04. A reviewing court must make a two-part inquiry to determine if a criminal statute is void for vagueness. It requires a criminal statute to define the offense: (1) with sufficient specificity that ordinary people can understand what actions are prohibited; and (2) in a manner that does not permit arbitrary and discriminatory enforcement. See Holcombe, 187 S.W.3d at 499; see also Florance, 2007 WL 2460088 at *4. Either the lack of notice or lack of guidelines for law enforcement is an independent ground for finding a statute void for vagueness. Adley v. State, 718 S.W.2d 682, 685 (Tex.Crim.App. 1985). We conclude section 106.04 is not void for vagueness or over broad. It is specific in its terms. It does not substantially implicate constitutionally protected conduct or speech. Also, it is not defined in such a manner that permits arbitrary and discriminatory enforcement. See also Gillum v. State, 788 S.W.2d 443, 446 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd) (section 106.04 does not discriminate between married and unmarried minors or violate equal protection clause). C. Section 106.04 Does Not Invade the Right to Privacy
Florance argues section 106.04(b) is unconstitutional because it violates her right to privacy. She claims the statute is necessarily limited to a "public context," but that "public element" is missing from the offense. Also, she argues the exception to the offense for minors in the visible presence of a consenting adult parent, guardian, or spouse, shows the statute violates the right to privacy because it should not matter whether the consumption is in close proximity to a consenting parent. See Tex. Alco. Bev. Code Ann. § 106.04(b). Florance acknowledges the "State has a legitimate purpose in addressing public intoxication of minors (and adults)." (Emphasis in orig.) However, relying on Lawrence v. Texas, she contends "where residents may defend themselves by use of firearms in their private residences, and where citizens may have engage [sic] in 'not for profit' homosexual acts in their private residences, it stands to reason that residents and citizens may expect privacy within a residence regarding 'not for profit' consumption of alcohol." See Lawrence v. Texas, 539 U.S. 558 (2003). The State responds a public element is not required because there are many offenses that may occur in the privacy of a residence, e.g., murder and possession of a controlled substance. An individual's right to privacy has been recognized by both federal and Texas courts. The United States Supreme Court has construed the United States Constitution to confer a limited right of privacy for individuals to make certain fundamental decisions or to engage in certain conduct. See City of Sherman v. Henry, 928 S.W.2d 464, 469 (Tex. 1996). The right to privacy affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Lawrence, 539 U.S. at 573-74. An implicit right of privacy under the Texas Constitution has also been acknowledged by the Texas Supreme Court. See Billings v. Atkinson, 489 S.W.2d 858 (Tex. 1973). The Texas Supreme Court has stated the right to privacy has been defined as the right of an individual to be left alone, to live a life of seclusion, and to be free from unwarranted publicity. Id. at 859. We do not agree with Florance that the authority she cites can be stretched to encompass her contention that criminal offenses must have a "public context" or contain a "public element," rendering section 106.04 of the Texas Alcoholic Beverage Code unconstitutional. See Miller v. State, 458 S.W.2d 680, 684 (Tex.Crim.App. 1970) (statute prohibiting possession of marijuana not unconstitutional, no right to privately possess and enjoy controlled substance in private residence); accord Leary v. United States, 544 F.2d 1266, 1270 (5th Cir. 1977) (same). We agree with the State that there are many criminal offenses that may be committed in a private residence, to name only a few, e.g., murder, sexual assault, burglary of a habitation, and possession of a controlled substance. We cannot agree with Florance that because such offenses occurred in a private residence, their enforcement is an unconstitutional invasion of the right to privacy. Accordingly, we conclude section 106.04 is not unconstitutional because it does not invade Florance's right to privacy. D. Offense of Consumption of Alcohol by a Minor May Be Codified Outside the Penal Code
Florance argues section 106.04 is codified outside the penal code without a commercial nexus. She claims "[n]o offense codified outside the penal code exists without a commercial nexus" and it is legally impossible for a minor to contract. There is no requirement that a penal offense be codified within the Texas Penal Code. See Morton v. State, 935 S.W.2d 904, 906 (Tex.App.-San Antonio 1996, no pet.). The fact that a statute is codified somewhere other than the Texas Penal Code is not a dispositive indication of whether the statute may be prosecuted as a criminal offense. See id. Accordingly, we conclude section 106.04 is not unconstitutional because it is codified outside of the Texas Penal Code. E. Section 106.04 Is Not Required to Have Mens Rea Element
Florance argues section 106.04 is unconstitutional because a criminal offense must require a culpable mental state. She claims section 106.04 does not expressly dispense with the culpable mental state. As a result, she argues section 6.02 of the Texas Code of Criminal Procedure applies and, pursuant to section 1.08, alcohol-related offenses require a mens rea of at least criminal negligence. In her reply brief, she argues "if there is no mens rea, there is simply no definition of a crime. There may be civil/commercial liability without a mens rea element, but there is no criminal liability without it." (Emphasis in orig.). She claims that without a mens rea element, the State has made breach of contract a criminal offense. The State responds that not all crimes require a culpable mental state. The State argues that section 106.04 is a malum prohibitum offense and, as such, requires no mental state. 1. Applicable Law
A strict liability statute is based on the principle that a person who commits an act in violation of the law may be held criminally liable even though he might be innocent of any criminal intent. See State v. Walker, 195 S.W.3d 293, 298 (Tex.App.-Tyler 2006, no pet.). If a statute plainly dispenses with a culpable mental state as an element of the offense, it is a strict liability statute. See Walker, 195 S.W.3d at 298. Many strict liability offenses are Class C misdemeanors, a conviction for which does not impose any legal disability or disadvantage. Aguirre v. State, 22 S.W.3d 463, 472 (Tex.Crim.App. 1999). Where no mental state is specified in a statute, section 6.02 of the Texas Penal Code provides a default rule that, unless the definition of the offense "plainly dispenses with any mental element," if a mental state is not specified in a statute, "intent, knowledge, or recklessness suffices to establish criminal responsibility." Tex. Penal Code Ann. § 6.02 (Vernon 2005); see Robledo v. State, 126 S.W.3d 150, 153 (Tex.App.-Houston [1st Dist.] 2003, no pet.). The Texas Court of Criminal Appeals has established guidelines for determining whether a statute dispenses with a culpable mental state. See Aguirre, 22 S.W.3d at 472. First, the statute is examined to determine whether it contains an affirmative statement that the conduct is a crime though done without fault. Id. at 471. Silence about whether a culpable mental state is an element of an offense leaves a presumption that one is required. See Lomax v. State, 233 S.W.3d 302, 304 (Tex.Crim.App. 2007); Aguirre, 22 S.W.3d at 472. Second, in the absence of an express intent to dispose with the requirement of a culpable mental state, the statute is examined to determine whether such an intent is manifested by other features of the statute. See Lomax, 233 S.W.3d at 304; Aguirre, 22 S.W.3d at 472. These features include: (1) the language of the statute; (2) the nature of the offense as either malum prohibitum or malum in se; (3) the subject of the statute; (4) the legislative history of the statute; (5) the seriousness of harm to the public; (6) the defendant's opportunity to ascertain the true facts; (7) the difficulty in proving a culpable mental state; (8) the number of prosecutions expected; and (9) the severity of the punishment. Aguirre, 22 S.W.3d at 472-76. 2. Application of the Law to the Facts
In order to address Florance's issue, we must first ascertain whether section 106.04 is a strict liability offense or requires a culpable mental state. Then, we must determine whether the absence of a culpable mental state in section 106.04 renders the statute unconstitutional. Section 106.04 does not contain an affirmative statement that the conduct is a crime though done without fault. As a result, to determine whether section 106.04 requires a culpable mental state, we must examine whether such an intent is manifested by other features of the statute. First, we examine the language of section 106.04. That section states "a minor commits an offense if he consumes an alcoholic beverage." Tex. Alco. Bev. Code Ann. § 106.04(a). It clearly omits a culpable mental state. When considering the language of a statute, the omission of a culpable mental state is a clear implication of the legislature's intent to dispense with a mental element in that section. See Lomax, 233 S.W.3d at 304; Aguirre, 22 S.W.3d at 473. If any section of the statute prescribes a mental state while another section omits a mental state, it is presumed the legislature intended to dispense with a mental element in that section. Aguirre, 22 S.W.3d at 473. Other sections in chapter 106 of the Texas Alcoholic Beverage Code prescribe a mental state. See Tex. Alco. Bev. Code Ann. §§ 106.03, 106.06 (criminal negligence). This factor weighs against requiring a culpable mental state. Second, we examine the nature of the offense proscribed in section 106.04. Strict liability is associated with civil violations that incur only a fine and criminal offenses characterized as malum prohibitum. Aguirre, 22 S.W.3d at 472; see also State v. Howard, 172 S.W.3d 190, 193 (Tex.App.-Dallas 2005, no pet.). Mala prohibita offenses are acts that are crimes merely because they are prohibited by statute, although they are not necessarily immoral. See Howard, 172 S.W.3d at 193. By contrast, mala in se offenses are acts that are inherently immoral and require a culpable mental state. See id. The implication is that a strict liability offense must be malum prohibitum. Aguirre, 22 S.W.3d at 473. Because a violation of section 106.04 cannot be considered inherently immoral, it is a malum prohibitum offense. This factor weighs against requiring a culpable mental state. Third, we examine the subject of the section 106.04. Strict liability statutes are traditionally associated with laws protecting the public health, safety, or welfare, as to the element of a child's age in statutes that protect children, and laws designed to protect children. See id. at 473, 475; Grice v. State, 162 S.W.3d 641, 647 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd) (laws designed to protect children). The class of public safety statutes courts have found to impose strict liability comprises statutes that punish dangerous activities which may result in serious physical injury or death to members of the public. See id. at 475 n. 47. Section 106.04 regulates the consumption of alcohol by minors and is designed to protect children. This factor weighs against requiring a culpable mental state. Fourth, we examine the legislative history of section 106.04, its title, and context. The only significant legislative history for this statute is the addition of an affirmative defense and to move the prescribed punishment to section 106.071. The statute is titled "Consumption of Alcohol by a Minor." It is found in chapter 106 which is titled "Provisions Relating to Age." This factor weighs against or is at least neutral regarding whether a culpable mental state is required. Fifth, we examine the seriousness of the harm to the public which may be expected to follow from the forbidden conduct. See Aguirre, 22 S.W.3d at 476. Generally, the more serious the consequences to the public, the more likely the legislature intended to impose liability without regard to fault. See Walker, 195 S.W.3d at 299. In most strict liability offenses, the statutes protect unwitting and unwilling members of the public from the noxious and harmful behavior of others in situations in which it would be difficult for members of the public to protect themselves. See id. Such statutes involve serious risk to the public, including serious physical injury or death. See id. Section 106.04 is designed to protect minors from the risks associated with the consumption of alcohol. These risks could conceivably include intoxication and alcohol poisoning, among other things, which could result in serious injury or death to the minor or members of the public. This factor weighs against requiring a culpable mental state. Sixth, we examine Florance's opportunity to ascertain the true facts. A minor would have little difficulty in determining he was consuming alcohol and his incentive to ascertain he was consuming alcohol would seem high given its intoxicating effects. Even if his beverage were "spiked," in most situations, it is possible for the minor to detect the alcohol and immediately cease consuming the beverage. We would have difficulty saying a minor is not in a position to prevent the violation. Further, it is well-known that persons under the age of twenty-one may not purchase or consume alcohol in this state. This factor weighs against requiring a culpable mental state. Seventh, we examine the difficulty prosecutors would have in proving a mental state for this type of crime. See Aguirre, 22 S.W.3d at 476. The greater the difficulty in proving a mental state, the more likely legislators intended to create a strict liability offense to ensure more effective law enforcement. Id. A defendant's intentions or culpable mental state can be inferred from circumstantial evidence, such as his words, acts, and conduct. See Walker, 195 S.W.3d at 300 (citing Smith v. State, 965 S.W.2d 509, 518 (Tex.Crim.App. 1998); Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App. 2004)). Because intent may be inferred from a defendant's words, actions, and conduct, proving a mental state in this statute is no more difficult than proving a mental state in another offense. See Walker, 195 S.W.3d at 300. This factor weighs in favor of requiring a culpable mental state. Eighth, we examine the number of prosecutions expected. The fewer the expected prosecutions, the more likely the legislature meant to require the prosecutors to go into the issue of fault. Aguirre, 22 S.W.3d at 476. The greater the number of prosecutions, the more likely the legislature meant to impose liability without regard to fault. Id. Neither Florance nor the State attempted to argue the number of prosecutions for this offense. Based on the information and arguments before us, this factor is neutral. Finally, we examine the severity of the punishment for an offense under section 106.04. The greater the punishment, the more likely some fault is required. Id. The presumption against strict liability becomes stronger for offenses punishable by confinement. See Robledo, 126 S.W.3d at 153. Conversely, the lighter the punishment, the more likely the legislature meant to impose liability without fault. Id. An offense under section 106.04 is a Class C misdemeanor. See Tex. Alco. Bev. Code Ann. §§ 106.04(c), 106.071(b). An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500. Tex. Penal Code Ann. § 12.23. Conviction of a Class C misdemeanor does not impose any legal disability or disadvantage. Id. § 12.03(c). However, if it is shown the minor has previously been convicted at least twice of an offense, the offense is punishable by a fine of not less than $250 or more than $2,000, confinement in jail for a term not to exceed 180 days, or both. Id. § 106.071(c). In most cases, a violation of section 106.04 is punishable by fine only. Punishment by confinement is a possibility only after two prior convictions for the offense. This factor weighs against requiring a culpable mental state. A majority of the factors we have considered weigh against requiring a culpable mental state and demonstrate a violation of section 106.04 is a strict liability offense. Accordingly, we conclude the absence of a required culpable mental state does not render section 106.04 unconstitutional. We need not address Florance's other arguments in issue five that offer discussion regarding the "Law of the Sea," the failure of the United States Treasury Department to circulate gold and silver coins, the benefit of clergy, or parens patri Æ . See In re Purported Lien or Claim Against Taylor, 219 S.W.3d at 623 (declined to address Richard Florance's irrelevant arguments regarding "maritime liens," " in rem matters," and perfection of liens). IV. MODIFICATION OF JUDGMENT
Although neither Florance nor the State has raised the issue, we note the county court's judgment in trial court cause no. 003-81453-06 is styled "The State of Texas vs. Amanda Jean Florence." However, Florance spells her last name with an "a," not an "e." The case in the county court was an appeal by trial de novo from the municipal court judgment. The municipal court judgment in trial court cause no. 2005007697 is styled "State v. Florance, Amanda Jean" and correctly spells her last name. We have the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information before us to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). Accordingly, we modify the style of the case of the county court's judgment in trial court cause no. 003-81453-06, which reads "The State of Texas vs. Amanda Jean Florence," and replace it with "The State of Texas vs. Amanda Jean Florance." V. CONCLUSION
This appeal is reclassified as an appeal of a criminal conviction. We vacate the portion of this Court's July 25, 2008 order that directed the Clerk of the Court to change the style of the case to " In the Matter of A.F., A Minor," to identify the appeal as a civil appeal, rather than a criminal appeal, and to list Richard Florance as the contact person for the appeal. We direct the Clerk of the Court to change the style of the case to " Amanda Jean Florance v. The State of Texas," to identify the appeal as a criminal appeal, rather than a civil appeal of a juvenile proceeding, and to list Amanda Florance as the contact person for the appeal. This Court does not have jurisdiction to review Florance's issue appealing the county court's judgment in trial court cause no. 003-81451-06, acquitting her in the failure to appear case. Florance's issue appealing the county court's judgment in trial court cause no. 003-81451-06 is dismissed. Also, this Court does not have jurisdiction to review Florance's declaratory judgment claims, her challenges to the judgment of conviction against her in trial court cause no. 003-81453-06 because the county court assessed her punishment at a fine in the amount of $75, or her challenges to the constitutionality of various statutes and rules other than the statute on which her conviction was based. Section 106.04 of the Texas Alcoholic Beverage Code is not unconstitutional. It is not void or over broad. It does not invade Florance's right to privacy. It is not unconstitutional because it is codified outside the Texas Penal Code or because it does not require a culpable mental state. The county court's judgment in trial court cause no. 003-81453-06 is modified to correctly spell Florance's last name. The county court's judgment in trial court cause no. 003-81453-06 is affirmed as modified.