Opinion
No. 05-09-00636-CR
Opinion issued January 25, 2010. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the County Criminal Court of Appeals Dallas County, Texas Trial Court Cause No. MC-06-R0014-D.
Before Chief Justice WRIGHT and Justices RICHTER and FILLMORE.
MEMORANDUM OPINION
Rooselvelt Johnson was convicted in the municipal court of the City of DeSoto for violation of a traffic ordinance. The county criminal court of appeals affirmed the judgment and appellant timely appealed that judgment to this Court. See Tex. Gov't Code Ann. §§ 30.00014(a), 30.00027(b) (Vernon 2004 Supp. 2009). In five issues, appellant contends generally that the county criminal court of appeals erred in (1) prosecuting him for a traffic code violation because the complained-of action is permissible as a nonconforming use under the zoning code and (2) failing to quash the complaint. We overrule appellant's issues and affirm the county criminal court of appeals' judgment. The narrow issue before this Court and addressed in appellant's first three issues is whether an exemption under the zoning code may be applied to an ordinance under the traffic code. Appellant contends the nonconforming use provision in the zoning code exempts him from the provision in the traffic code prohibiting him from parking his tow truck in his driveway. We disagree. Section 12.606 of DeSoto's traffic code provides, in pertinent part, as follows:
(b) On Property in Certain Zoning Districts. It shall be unlawful for any person to leave, park, or stand the following vehicles upon any street, alley, or public or private property within any single-family or multi-family dwelling residential zoning district:
(1) road-tractor, tractor-trailer, truck-tractor;
(2) motor vehicle, truck, bus, van, trailer, semi-trailer, or similar vehicle with a gross vehicle weight rating (GVWR) in excess of fourteen thousand, five hundred (14,500) pounds.DeSoto, Tex., Ordinance 1422-01 (June 5, 2001). It is undisputed that when section 12.606 was enacted, nothing in the zoning code prohibited appellant from parking his tow truck on his private property. Under the zoning code, use is defined as the "purpose for which land or buildings are or may be occupied in a zoning district." DeSoto, Tex., Ordinance1221-97 (Aug. 19, 1997). Section 36 of the zoning ordinance is titled Use Regulations. Section 36.1 states "The use of land and/or buildings shall be in accordance with those listed in the following Use Charts. No land or building shall hereafter be used and no building or structure shall be erected, altered, or converted other than for those uses specified in the zoning district in which it is located. . . ." The zoning ordinance contains eleven charts detailing various categories of uses. The uses set forth in the charts focus solely upon the purpose for owning/renting the land and/or dwelling. Moreover, a person requesting the addition of a new or unlisted use must submit information to the Director of Planning detailing the "nature of the use and whether the use involves dwelling activity, sales, services, or processing." Section 36.1(D). The zoning code defines a nonconforming use as a "use of land lawfully occupied at the time of the effective date of this ordinance or amendments thereto, but which does not conform to the use regulations of the district in which it is situated." Section 7.3(a) of the zoning code permits a nonconforming use to continue. Appellant must get over two hurdles. First, he must show that parking his tow truck in his driveway was a use of his property within the meaning of the zoning code. Second, he must show that the nonconforming use provision in the zoning code applies to a restriction in the traffic code. The evidence does not support appellant's assertion that parking his tow truck was a use of his property. It is true that the zoning code does not prohibit appellant from parking his tow truck in his driveway. That does not, however, transform parking his tow truck in his driveway as use within the meaning of the zoning code. As used in the zoning code, use involves the purpose for which land or a dwelling is occupied. Appellant did not own his residence for the purpose of parking his tow truck on the premises. Thus, parking his tow truck in his driveway was not a use within the meaning of the zoning code. As such, the nonconforming use provision is inapplicable. Even assuming appellant could show that parking his tow truck was a use within the meaning of the zoning code, he could not get past the second hurdle. Appellant does not cite and we have not found any case allowing a nonconforming use provision in a zoning code to be grafted onto an ordinance in a different code. We conclude use of his driveway to park his tow truck is not a use under the zoning code. We further conclude that the nonconforming use provision in the zoning code is not applicable to a traffic code ordinance. Accordingly, we overrule appellant's first three issues. In his fourth issue, appellant contends the trial court erred in failing to quash the complaint. Specifically, he contends the facts alleged in the complaint do not state a claim because the complained of use was lawful under the zoning code. In light of our disposition of appellant's first three issues, this assertion has no merit. We overrule appellant's fourth issue. In his fifth issue, appellant contends the trial court erred in failing to quash the complaint because it was too vague. Specifically, appellant contends the complaint was vague because it failed to specify whether the offense occurred on public or private property. We review a trial court's decision on a motion to quash a complaint for an abuse of discretion. Kassem v. State, 263 S.W.3d 377, 384 (Tex. App.-Houston [1st Dist.] 2008, no pet.). A trial court abuses its discretion if it acts without reference to guiding rules or principles, or acts arbitrarily or unreasonably. Id. A complaint is a sworn allegation charging the accused with the commission of an offense. Tex. Code Crim. Proc. Ann. art. 45.018(a) (Vernon 2006). A complaint is sufficient if it shows the accused has committed an offense against the law of the state. Tex. Code Crim. Proc. Ann. art. 45.019(a)(4) (Vernon 2006). A complaint does not require the same particularity that is necessary in an indictment or information. Vallejo v. State, 408 S.W.2d 113, 114 (Tex. Crim. App. 1966); Schmitz v. State, 952 S.W.2d 922, 924 (Tex. App.-Fort Worth 1997, pet. ref'd). A complaint that tracks the statutory language prohibiting conduct is sufficient to charge a criminal offense. State v. Edmond, 933 S.W.2d 120, 127 (Tex. Crim. App. 1996); Kassem, 263 S.W.3d at 385. The complaint charged that appellant "did leave, park, or stand a road-tractor, tractor-trailer, truck-tractor, or a motor vehicle, truck bus, van, trailer, or similar vehicle with a gross vehicle weight rating (GVWR) in excess of fourteen thousand five hundred pounds upon a street, alley, or public or private property in a single-family or multi-family dwelling residential district at, 1218 Essex Drive . . ." The language in the complaint tracks the statutory language. Accordingly, we hold that the complaint sufficiently charged appellant with a criminal offense. See Edmond, 933 S.W.2d at 127; Kassem 263 S.W.3d at 385. We overrule appellant's fifth issue. We affirm the county criminal court of appeals' judgment.
See (1) Section 36.2 Primary Residential Uses; (2) Section 36.3 Accessory and Incidental Uses; (3) Section 36.4 Utility, Service and Other Uses; (4) Section 36.5 Recreational and Entertainment Uses; (5) Section 36.6 Educational, Industrial and Special Uses; (6) Section 36.7 Transportation Related Uses; (7) Section 36.8 Automobile and Related Uses; (8) Section 36.9 Office and Professional Uses; (9) Section 36.10 Retail and Service Type Uses; (10) Section 36.11 Commercial Type Uses; and (11) Section 36.12 Light Industrial and Related Uses.