McGregor v. State

Full title: VINCENT EDWARD McGREGOR, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 2, 2003

No. 05-02-00995-CR (Tex. App. Apr. 2, 2003)

Opinion

No. 05-02-00995-CR.

Opinion Filed April 2, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.

Appeal from the County Criminal Court of Appeals No. 1, Dallas County, Texas, Trial Court Cause No. MA01-73578-D. Affirmed.

Before Justices WRIGHT, BRIDGES, and RICHTER.

OPINION

Opinion By Justice RICHTER

Based on the parties' stipulation of evidence and pursuant to a Dallas city ordinance, the trial court convicted Vincent Edward McGregor of operating a sexually oriented business without a valid license. The trial court assessed punishment at thirty days confinement, probated for twelve months, and a $500 fine. In three points of error, appellant contends the court erred in overruling his motion to quash the information because the ordinance is overly broad and unconstitutional. We affirm.

Background

At issue is Dallas City Code chapter 41A. The City of Dallas adopted this ordinance pursuant to local government code chapter 243, which authorizes municipalities to regulate sexually oriented businesses. See Tex. Local Gov't Code Ann. § 243.003 (Vernon 1999); Dallas, Tex., Code ch. 41A, § 41A-1(b) (2000). The ordinance makes it an offense to operate a sexually oriented business without a valid license. Dallas, Tex., Code ch. 41A, § 41A-4. Although violations of municipal ordinances are generally punishable as Class C misdemeanors, pursuant to local government code chapter 243, a violation of Dallas City Code Chapter 41A is punishable as a Class A misdemeanor. See Tex. Local Gov't Code Ann. §§ 54.001(b), 243.010(b); Tex. Pen. Code Ann. § 12.41(3) (Vernon 2003); Dallas, Tex., Code ch. 41A, § 41A-21(a). Under section 41A-21(b) of the ordinance, a culpable mental state is not required to prove the offense. Dallas, Tex., Code ch. 41A, § 41A-21(b). The ordinance defines "sexually oriented business" as "an adult arcade, adult book bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center." Id. § 41A-2(27). The ordinance also provides definitions for each of the enterprises falling within the definition of "sexually oriented business." The charge against appellant stemmed from his operation of an adult arcade. Under the ordinance, an adult arcade is defined as

any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of "specified sexual activities" or "specified anatomical areas."

Id. § 41A-2(2). Before trial, appellant filed a motion to quash the information and, subsequently, an amended motion. In the amended motion, appellant asserted two grounds. First, appellant contended the charged offense was not "enabled" by local government code chapter 243 because the ordinance's definition of "adult arcade" was broader than the chapter 243 definition of a "sexually oriented business." Appellant maintained that, as a result, the trial court, a county court of criminal appeals, lacked jurisdiction over the offense because the offense was punishable not as a Class A misdemeanor, but as a Class C misdemeanor, jurisdiction of which lies exclusively in the municipal court. See Tex. Code Crim. Proc. Ann. art. 4.14(a) (Vernon Supp. 2003) (concerning jurisdiction of municipal court); Tex. Gov't Code Ann. § 25.003 (Vernon Supp. 2003) (concerning jurisdiction of statutory county courts). Appellant also argued, as his second ground for quashing the indictment, that the ordinance's dispensation of the scienter requirement was unconstitutional under the First and Fourteenth Amendments of the United States Constitution as well as Article 1, section 8 of the Texas Constitution. Appellant maintained any ordinance "which may tend to work a substantial restriction on the freedom o[f] speech and of the press" requires a culpable mental state. The trial court rejected appellant's arguments and denied the motion. Appellant was subsequently convicted and this appeal ensued.

Discussion

We review a trial court's ruling on a motion to quash under an abuse of discretion standard. Smith v. State, 895 S.W.2d 449, 453 (Tex.App.-Dallas 1995, pet. ref'd). A trial court abuses its discretion if it acts without reference to any guiding principles, or acts arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). In his first point, appellant challenges the court's rejection of his jurisdictional complaint that the offense was not "enabled" by the local government code because the ordinance's definition of "adult arcade" is broader than the local government code's definition of "sexually oriented business." Chapter 243 defines "sexually oriented business" as

a sex parlor, nude studio, modeling studio, love parlor, adult bookstore, adult movie theater, adult video arcade, adult movie arcade, adult video store, adult motel, or other commercial enterprise the primary business of which is the offering of a service or the selling, renting, or exhibiting of devices of any other items intended to provide sexual stimulation or sexual gratification to the customer.

Tex. Local Gov't Code Ann. § 243.002 (Vernon 1999). The various enterprises within that definition are not defined. Appellant maintains there is a material difference between the local government code's definition of "sexually oriented business" and the ordinance's definition of "adult arcade." Specifically, appellant notes chapter 243 limits the definition of "sexually oriented business" to commercial enterprises whose primary business deals with items intended to provide sexual gratification to its customers. By contrast, the ordinance's definition of "adult arcade" encompasses " any place to which the public is permitted or invited" to view sexually gratifying images. Appellant maintains the language "any place" makes the ordinance's definition broader and therefore outside the scope of what the local government code permits. We disagree. Although the language "any place" by itself may be broad, the definition of "adult arcade" continues with the language "wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time . . ." This language narrows the scope of "any place." When taken in conjunction with the remaining language of the definition — "where the images so displayed are distinguished or characterized by the depicting or describing of `specified sexual activities' or `specified anatomical areas'" — and the City of Dallas's intent to adopt the ordinance pursuant to the local government code, the language provides for what the code allows: the regulation of "businesses dealing in items providing sexual gratification." See Wende v. Bd. of Adjustment, 27 S.W.3d 162, 169 (Tex.App.-San Antonio 2000), (cardinal rule of construction of statutes and ordinances is to discern and give effect to enacting body's intent), rev'd on other grounds, 92 S.W.3d 424 (Tex. 2002); Mayo v. State, 877 S.W.2d 385, 390 (Tex.App.-Houston [1st Dist.] 1994, no pet.) (finding Houston ordinance providing for the regulation of enterprises which "deal in items providing sexual gratification" to be within scope of local government code). Because the ordinance does what the code permits, it is not overly broad, and an offense under it is properly punishable as a Class A misdemeanor and prosecuted in a statutory county court. Accordingly, the trial court did not abuse its discretion in rejecting appellant's jurisdictional complaint based on the breadth of the ordinance. We overrule appellant's first point of error. In his second point of error, appellant challenges the court's rejection of his argument that the ordinance is unconstitutional because it dispenses with a culpable mental state. In support of this proposition, appellant cites several United States Supreme Court and Texas Court of Criminal Appeals cases. However, appellant fails to analyze these authorities and apply them to the facts at hand. His entire argument under this point is contained in two short paragraphs as follows:

Sec. 41A-21 of the Dallas City Code dispenses with the scienter requirement in violation of the First Amendment and the Fourteenth Amendment of the United States Constitution, and Art. 1, Sec. 8 of the Texas Constitution. The United States Supreme Court, in case after case, clearly holds that "an ordinance's elimination of the scienter requirement `which may tend to work a substantial restriction on the freedom o[f] speech and of the press' violates the First and Fourteenth Amendments of the United States Constitution. Smith v. People of the State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (U.S. Cal., 1959); U.S. v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (U.S. Cal., 1994); Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (U.S. Cal., 1973); New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (U.S.N.Y., 1982); Hamling v. U.S., 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (U.S. Cal., 1974); Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (U.S. Ohio, 1990).

Any ordinance which even remotely raises the possibility of restricting First Amendment protected free speech must contain a scienter requirement. A failure renders such ordinance unconstitutional and unenforceable, in fact a similar Houston ordinance includes a scienter requirement. See also Mayo v. State, supra; Flores v. State, supra; Smith v. State, supra, and Haddad v. State, supra.

A brief to this Court must contain more than summary statements. See generally Tex. R. App. P. 38.1(h). It must include substantive analysis and, when an appellant asserts both federal and state constitutional claims, it must provide separate argument for each. See Heitman v. State, 815 S.W.2d 681, 690 n. 23 (Tex.Crim.App. 1991); Walder v. State, 85 S.W.3d 824, 827 (Tex.App.-Waco 2002, no pet.). A brief which fails to do so, such as appellant's, is inadequate and presents nothing for review. See Walder, 85 S.W.3d at 827. We overrule appellant's second point. In his third point of error, appellant relies on the arguments presented in his first two points to generally assert the court abused its discretion in denying his motion to quash. Having concluded both those points are without merit, we conclude this point also lacks merit. We affirm the trial court's judgment.