Opinion
No. 05-07-00480-CR
Opinion Filed December 7, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Criminal Court of Appeals No. 2 Dallas County, Texas, Trial Court Cause No. MB06-94407-M.
Before Justices MOSELEY, LANG, and MAZZANT.
OPINION
Kevin Eugene Griffin appeals the trial court's judgment convicting him of criminal trespass. Punishment was assessed by the trial court at three days' confinement. In his sole issue on appeal, appellant contends the "criminal trespass policy" of Dallas Area Rapid Transit ("DART") violated his constitutional rights to "travel, association, and loiter," and the trial court "erred in determining the policy did not." For the reasons below, we affirm the trial court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mike Schmidt testified at trial that while employed as a DART police officer on November 13, 2006, he observed appellant at DART's West Transfer Center bus stop. Schmidt stated that because appellant was "loitering" for at least an hour and "wasn't using the bus or catching the bus," he issued appellant a written criminal trespass warning. According to Schmidt, the criminal trespass warning banned appellant from the DART West Transfer Center for one year, or until November 13, 2007. The warning also informed appellant in writing that returning to the West Transfer Station before the warning expiration date would constitute criminal trespass. Officer Andrew Moss of the DART Police Department testified that on November 16, 2006, he observed appellant loitering at the West Transfer Station for approximately thirty-five minutes. Moss testified appellant was "sitting around talking from person to person" and "really didn't show any intention to ride any kind of services that DART provides." Moss testified he asked appellant what he was doing, and appellant stated he was "waiting on a friend." According to Moss, at that point, his partner, Schmidt, recalled he had recently issued a criminal trespass warning to appellant. Moss ran a "routine computer check," which showed appellant had been issued a criminal trespass warning and had an active warrant for escape from the Texas Youth Commission. Appellant was taken into custody for his warrant for escape and was also charged with criminal trespass. Appellant filed a pretrial motion titled "Defendant's Motion to Hold the Texas Criminal Trespass Statute Unconstitutional." In that motion, appellant argued his prohibition "from riding the local transportation system without fear of being re-arrested . . . violates his constitutional rights to free speech, freedom of association and freedom to travel." In addition, appellant asserted DART's "policies enforcing the criminal trespass statute are inherently vague" and permit selective law enforcement, thus denying due process. Further, appellant contended "the [DART] criminal trespass policy is administered in an unequal or arbitrary manner making it unjust and constitutionally overbroad." At trial, appellant pleaded not guilty respecting the criminal trespass charge. Appellant testified he is on parole for assault and is required to report to his parole officer at least once a week. He stated he needs to use public bus transportation to get to his meetings with his parole officer. Further, appellant testified he needs to ride the bus to get to the place where he "do[es] music." He testified all bus routes to the locations he needs to reach involve transferring at the West Transfer Center. Appellant testified he had on occasion, prior to arrest for criminal trespass, spent "about an hour at the most" talking to people at the West Transfer Station because he has no job and nothing else to do. He testified his "main reason" for being at the bus station was "pretty much" to catch a bus. Appellant introduced into evidence general order number 05-04 of the DART Police Department, which provides in part: III. POLICY A. It is the policy of the [DART Police Department] that a criminal trespass warning may only be issued under either of the following conditions:1. The person has committed any violation of law (including a city ordinance) on DART's property.
2. The person is on DART's property for purposes other than to utilize public transportation services. To establish this requirement, the person must (1) admit to being on DART's property for purposes other than to utilize public transportation services, or (2) be observed failing to utilize public transportation services after having had opportunities to do so.B. An officer must have specific articulable facts which, taken together with rational inferences from those facts, lead the officer to conclude that the person is on the property for purposes other than to utilize public transportation services. In addition, general order number 05-04 provides that if a verbal or written criminal trespass warning has been issued under either of the conditions in section III and the person fails or refuses to comply with the warning, an officer may arrest and/or file a charge for criminal trespass against the person who has reentered or remained on DART's property. Moss testified it is unusual for passengers at the West Transfer Station to wait more than thirty minutes for a bus. He stated DART has a policy prohibiting loitering at transfer stations because "when [there are] people sitting around at the station, usually what that leads to would be violent crimes, narcotics dealing and gang activity." Moss stated that "No Loitering" signs are posted at the transfer stations. However, "loitering" is not defined on the signs. Moss testified that although he was not aware of an official policy for appealing a criminal trespass warning, he had heard such warnings had been overturned in the past if "brought up to management, the Chief Lieutenant." Vanessa Pathak, appellant's sister, testified she is appellant's guardian. She testified that since appellant's arrest for criminal trespass, she has had to miss work to drive him "where he needs to go." She testified appellant does not have a driver's license and cannot afford transportation other than DART. After the parties' closing arguments, the following ensued:
[COURT]: Is there any reason at this time why I should not assess guilt or innocence and then punishment in this case?
[APPELLANT'S COUNSEL]: Just because under our [pretrial] Motion it's an unconstitutional statute. I have to say that for appeal.
[COURT]: Okay. Are you suggesting that I shouldn't rule at this time?
[APPELLANT'S COUNSEL]: Well, I am just saying for the Motion that we filed that is the reason. We would say that this is-we are still saying that is an unconstitutional statute.
[COURT]: Okay. I don't agree with that assessment of your attorney, and I'm going to find you guilty of the offense of criminal trespass.The trial judge assessed punishment at three days' confinement. Appellant filed a motion for new trial "for the reason that the verdict is contrary to the law and evidence." The record is silent respecting disposition of that motion. This appeal followed.
II. APPLICABLE LAW
Section 30.05 of the Texas Penal Code, titled "Criminal Trespass," provides that a person commits the offense of criminal trespass if he enters or remains in a building or on property of another without "effective consent" and he: (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so. Tex. Pen. Code Ann. § 30.05(a) (Vernon Supp. 2007).III. ANALYSIS
In his sole issue, appellant asserts:[DART] has banned the Appellant from using its public transportation downtown transfer station for a year under DART's criminal trespass policy, does the Appellant's [sic] have a constitutional right to travel, association and loiter and does DART's policy violate those constitutional rights, and did the Court erred [sic] in determining the policy did not.The State asserts appellant "does not challenge the legal or factual sufficiency of his conviction." In addition, the State argues "DART's criminal trespass policy does not violate due process and is not vague." We conclude that we need not decide appellant's issue in disposing of this appeal because, on this record, the alleged unconstitutionality of the DART policy as it is asserted does not affect the validity of appellant's criminal trespass conviction. In support of his argument on appeal, appellant relies heavily on Anthony v. State, 209 S.W.3d 296 (Tex.App.-Texarkana 2006, no pet.). Anthony involved a defendant who was excluded by police from a public park and, upon return to the park, was arrested and convicted pursuant to section 30.05 of the Texas Penal Code. Id. at 302. On appeal, the defendant in Anthony not only challenged the constitutionality of the unwritten policy relied upon by police to exclude him from the park, but also challenged the legal and factual sufficiency of the evidence to support his conviction. Id. at 309. The Texarkana Court of Appeals determined that the unwritten policy challenged by the defendant was unconstitutional, and concluded the police therefore lacked authority to ban the defendant from the park under that policy. Id. at 310. Thus, the court reasoned, the defendant, as a member of the public, had effective consent to be in the park during ordinary hours of operation. Id. Accordingly, the court concluded, the evidence was legally insufficient to support the defendant's conviction. Id. However, in the case before us, appellant does not challenge the legal or factual sufficiency of the evidence to support his conviction. Unchallenged evidence in the record shows that on November 13, 2006, appellant was present for at least an hour at the DART West Transfer Station and was not using DART services. On that date, appellant was given a criminal trespass warning that banned him from the West Transfer Station for one year. On November 16, 2006, despite the criminal trespass warning, appellant was again present at the West Transfer Station with no intent to use DART services. Thus, unchallenged evidence in the record establishes that on November 16, 2006, appellant was without effective consent to be at the West Transfer Station and had notice his entry was forbidden. See Tex. Pen. Code Ann. § 30.05(a). Appellant does not explain or address how the alleged unconstitutionality of the DART policy at issue would affect the validity of his criminal trespass conviction. Cf. Anthony, 209 S.W.3d at 310. The Texas Rules of Appellate Procedure do not allow appellate courts to "reach out and reverse the trial court on an issue that was not raised." State v. Bailey, 201 S.W.3d 739, 744 (Tex.Crim.App. 2006); see also Gerron v. State, 97 S.W.3d 597, 597 (Tex.Crim.App. 2003). Further, although the record shows appellant filed a pretrial motion titled "Defendant's Motion to Hold the Texas Criminal Trespass Statute Unconstitutional," that motion did not cite or attack the constitutionality of section 30.05 of the Texas Penal Code, the statute under which appellant was charged and subsequently convicted. See Tex. Pen. Code Ann. § 30.05. Moreover, appellant does not assert a challenge to the constitutionality of section 30.05 on appeal. We conclude appellant's issue on appeal raises no basis for reversal of the trial court's judgment. Therefore, in the absence of any showing to the contrary, we presume the trial court's judgment is valid. See Murphy v. State, 200 S.W.3d 753, 759 (Tex.App.-Texarkana 2006), aff'd, No. PD-1297-06, 2007 WL 3276328 (Tex.Crim.App. Nov. 7, 2007) (citing Thompson v. State, 108 S.W.3d 287, 292 (Tex.Crim.App. 2003)).