Opinion
NO. 03-14-00538-CR
03-30-2016
Gary Don Ray, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF MCCULLOCH COUNTY, 452ND JUDICIAL DISTRICT
NO. 5840, HONORABLE ROBERT R. HOFMANN, JUDGE PRESIDINGMEMORANDUM OPINION
A jury convicted appellant Gary Don Ray of criminal trespass of a habitation, and the trial court assessed punishment at 270 days' confinement and a $4,000 fine. See Tex. Penal Code §§ 12.21, 30.05. In one issue, appellant contends that the evidence presented at trial is insufficient to support his conviction. We will affirm the trial court's judgment.
BACKGROUND
The record shows that appellant was upset about a bill he received for medical care at the local hospital in Brady, Texas, and that he went to the hospital on September 13, 2013, to address the issue. At the hospital, he spoke with Tim Jones, the chief operating officer of the Heart of Texas Healthcare System. The Heart of Texas Healthcare System in Brady contracted with the McCulloch County Hospital District to lease and operate the hospital. Jones testified that during his discussion with appellant, appellant became agitated, and when Jones ultimately told appellant that appellant would be responsible for payment of the bill, appellant asked, "Are you sure you want to do that?" and made a hand gesture as if he were pointing a gun. Jones testified that, at the time of the confrontation, he was aware of a previous situation in approximately March 2013 in which appellant displayed a firearm to a city councilman. After appellant left that day, Jones contacted the police chief and informed him about the confrontation. Jones also spoke with board members of the hospital about the incident. He also began paying closer attention to appellant's web site, webitch4u.com, and noticed that appellant began writing about the hospital, directing complaints toward Jones and hospital board members and using "derogatory, threatening words" and words like "war," "gore," and "blood."
On the morning of September 27, 2013, the registration clerk at the hospital notified Jones that appellant had entered the building. Jones tried to find appellant but was unable to do so. Jones believed that appellant went into a restricted area, but he did not see appellant that day and was only able to confirm that appellant was at the hospital when he later reviewed the hospital's surveillance camera. Appellant testified that he was at the hospital that morning to buy a hamburger at the hospital cafeteria. After Jones confirmed that appellant had left the hospital that day, he contacted several hospital officials, hospital board members, and the police chief. By that time, Jones was aware of emails appellant had sent to city officials that caused Jones further concern about appellant. Specifically, he testified that he was aware of an email appellant sent to a city councilwoman in 2012 making statements that he had a handgun and that he would kill her if she lied to him. Jones was also aware of an email appellant sent to another city official in which appellant stated that he had a concealed-handgun permit and that he never had a gun far away from him. The emails mentioned by Jones in his testimony—as well as other similar emails or blog entries—were admitted into evidence at trial, and appellant admitted he wrote them but denied that he intended to threaten actual violence.
The police chief testified that when contacted by hospital officials about appellant after appellant entered the hospital on September 27, he suggested that the hospital issue a criminal-trespass warning to appellant. After Jones and other hospital officials then consulted with the hospital's attorney, they issued the trespass warning, which was hand-delivered to appellant by a police sergeant later in the day on September 27. The warning directed appellant not to enter the hospital unless it was for a medical emergency. The sergeant who delivered the warning to appellant testified that the police department "frequently" got requests for criminal-trespass warnings and delivered them to the people being warned.
Appellant returned to the hospital on October 2, 2013, and was arrested. He testified that he returned as an act of "civil disobedience." He was released on bond the same day, and he returned to the hospital again the following day, on October 3, 2013, when he was arrested a second time. Appellant testified that he went back to the hospital on October 3 for the same reason he went on October 2—civil disobedience—and that he "was going to keep going out there until somebody explained to [him] why [he] couldn't go to a hospital [he paid] taxes for."
At the close of trial, the jury convicted appellant of criminal trespass, and the trial court sentenced appellant to 270 days in jail and a $4,000 fine. This appeal followed.
DISCUSSION
Appellant challenges the sufficiency of the evidence to support his conviction for criminal trespass. He frames his legal-sufficiency challenge as follows: "The lack of a policy to determine who should be excluded from a public hospital violates [a]ppellant's procedural due process rights. Therefore, a judgment of acquittal must be rendered because the evidence is legally insufficient to support a conviction for criminal trespass." Specifically, appellant argues that the hospital in Brady is a "quasi-governmental entity" due to the Heart of Texas Healthcare System's contract with the McCulloch County Hospital District to lease and operate the hospital. Thus, appellant argues, the act of excluding appellant from the hospital was a "state action" requiring the hospital to satisfy the due-process requirements of the United States Constitution by having a proper policy in place regarding the exclusion of people from the building before issuing a criminal-trespass warning. See U.S. Const. amend. XIV.
In making his argument, appellant relies heavily on Anthony v. State, 209 S.W.3d 296 (Tex. App.—Texarkana 2006, no pet.), a case in which the city of Henderson had an unwritten policy providing its police officers the authority to ban people from public parks at the officers' discretion. Id. at 301. Pursuant to the unwritten policy, an officer gave the defendant in that case a notice to stay out of a city park. Id. When the defendant returned, he was arrested, prosecuted, and convicted for criminal trespass. Id. On appeal, the defendant challenged the constitutionality of the unwritten trespass policy. Id. He did not challenge the constitutionality of the criminal-trespass statute, which is section 30.05 of the Texas Penal Code. See Tex. Penal Code § 30.05. The Anthony court held that the unwritten policy was unconstitutional because it violated procedural due process and was unconstitutionally vague. Anthony, 209 S.W.3d at 310-11. The court then concluded that because the unwritten policy was void and because the officer's exclusion of the defendant was done solely pursuant to the policy, the defendant, as a member of the public, had effective consent to be in the park during the normal hours of operation. Id. at 310. Thus, the court held, the evidence was insufficient to support the effective-consent element of criminal trespass. Id.
We find the facts in the case before us distinguishable from those in Anthony. In Anthony, the defendant was excluded from a city park, while in this case, appellant was excluded from a private health-care system that leased a hospital building from a county hospital district. At least in the First Amendment context, public parks have particular significance that is not shared by hospitals. See Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 205 (Tex. 1981) ("The rights to picket and demonstrate in public places, particularly streets, sidewalks, and parks, are extended first amendment protection."). Further, in Anthony, the police officer excluded the defendant from the park pursuant to an unwritten policy authorizing officers to exclude people from city parks at any time and for any reason. Here, the hospital did not have a policy of exclusion but rather excluded appellant pursuant to a standard criminal-trespass warning after appellant made a threatening gesture and threatening remarks to hospital and city officials and after the hospital CEO consulted with hospital officials, hospital board members, the police chief, and the hospital's lawyer. Although a police sergeant delivered the trespass warning to appellant, the sergeant testified that the police department "frequently" got requests for such warnings and delivered them to the people being warned. He testified that the police department issued and delivered the warnings as long as there was good reason for the requesting party to want to exclude the other person from the requesting party's property. Anthony is also distinguishable from this case because the criminal-trespass warning in Anthony banned the defendant from the city park indefinitely and for all purposes. In this case, the criminal-trespass warning allowed appellant to enter the hospital for emergency medical treatment, one of the important functions of a hospital. In addition, Jones testified that he and other officials held a meeting on September 30, 2013, three days after appellant received the criminal-trespass warning, to discuss options for safely providing appellant with routine medical treatment, but they did not have a chance to implement a particular plan before appellant returned to the hospital and was arrested.
We also disagree that the hospital's lack of a policy in this case is an issue that is properly before us in this appeal. A cause of action for a violation of a person's constitutional rights is a civil proceeding, see, e.g., 42 U.S.C. § 1983, unless the challenge is to the constitutionality of a statute that authorized a person's indictment or conviction in a criminal prosecution. See, e.g., State v. Johnson, 475 S.W.3d 860, 862-63 (Tex. Crim. App. 2015) (addressing challenge to constitutionality of flag-destruction statute under which defendant charged); Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013) (addressing challenge to provision of online-solicitation-of-minor statute under which defendant indicted); Martinez v. State, 323 S.W.3d 493, 496 (Tex. Crim. App. 2010) (addressing challenge to criminal-street-gang statute that authorized defendant's conviction under penal code). Appellant makes no argument that the criminal-trespass statute is unconstitutional, either facially or as applied to him. He argues only that the hospital's lack of a policy prior to issuing the criminal-trespass warning violated his procedural-due-process rights. To the extent that the Anthony court held that the constitutionality of the city of Henderson's policy was properly before that court in a criminal prosecution for criminal trespass, we respectfully disagree. Because we find Anthony distinguishable from this case, and because we disagree that the constitutionality of the hospital's lack of a policy is before us in this criminal proceeding, we will address the sole issue before us on appeal, which is whether the evidence presented at trial is sufficient to support appellant's conviction. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
When reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences that can be drawn from it, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Temple, 390 S.W.3d at 360. In our analysis, we assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We consider only whether the jury reached a rational decision. See Isassi, 330 S.W.3d at 638 ("Our role on appeal is restricted to guarding against the rare occurrence when a factfinder does not act rationally." (quoting Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009))).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "A hypothetically correct jury charge is one that 'accurately sets out the law, is authorized by the [charging instrument], does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.'" Id. (quoting Malik, 953 S.W.2d at 240). The law as authorized by the charging instrument means the statutory elements of the charged offense as modified by the factual details and legal theories contained in the charging instrument. See Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013).
A person commits the offense of criminal trespass if he enters or remains on or in the property of another without effective consent and after receiving notice that the entry was forbidden. See Tex. Penal Code § 30.05(a)(1); Salazar v. State, 284 S.W.3d 874, 876 (Tex. Crim. App. 2009). Written or oral notice, fencing, signs forbidding entry, purple paint marks on trees or posts, and crop cultivation all effectively place a person on notice that entry is forbidden. See Tex. Penal Code § 30.05(b)(2). In this case, the State's charging instrument stated, in relevant part, that:
On or about the 3rd day of October, 2013, A.D., in McCulloch County, Texas, Gary Don Ray did then and there intentionally or knowingly enter a habitation, namely Heart of Texas Health Care System, Brady, Texas 78625, without the effective consent of the said Tim Jones, acting for Heart of Texas Health Care System, and the said defendant had notice that the entry was forbidden.Thus, in this case, the hypothetically correct jury charge would require the State to prove beyond a reasonable doubt that appellant intentionally or knowingly entered the Heart of Texas Health Care System, a habitation, without the effective consent of Tim Jones, the system's CEO, and appellant had notice that entry was forbidden.
In reviewing the evidence in the light most favorable to the verdict, we conclude that the evidence presented is sufficient to support the jury's findings on all of the essential elements of criminal trespass. Specifically, there is ample evidence that, after engaging in threatening behavior, appellant received notice that he was forbidden from entering the hospital unless his purpose was for emergency-medical care because appellant testified that he received a written criminal-trespass warning at his home on September 27, 2013; a police sergeant testified that he hand-delivered the warning to appellant at appellant's home on that day; and the criminal-trespass warning, which was admitted into evidence at trial and contained appellant's signature, stated that appellant was not to enter the hospital unless he had a medical emergency. The evidence was also sufficient to show that appellant did not have effective consent to enter the hospital when he returned on October 2 and October 3, 2013, because the hospital CEO, Jones, testified that neither he nor any other hospital official gave appellant consent to enter the hospital on those dates after having explicitly warned him not to enter except for emergency-medical treatment. Further, appellant did not testify, nor does he contend on appeal, that anyone gave him consent to enter the hospital on October 2 or October 3.
We note that because we have already concluded that the constitutionality of the hospital's lack of a policy in this case is not properly before us in this appeal, we depart from the Anthony court's reasoning with respect to the effective-consent element of criminal trespass. --------
The evidence proving that appellant intentionally entered the hospital knowing that he did not have consent and that the entry was forbidden is also sufficient. Appellant testified that he received the written trespass warning notifying him not to enter the hospital except for a medical emergency but did so anyway on October 2 and October 3 because he was "protesting" and engaging in "civil disobedience." The officers who arrested appellant on both dates testified that before arresting him each time, they asked him whether the purpose of his visit to the hospital was for emergency care or treatment, and appellant answered each time that it was not. The State also presented sufficient evidence that the hospital was a habitation because Jones testified that the hospital provided rooms for patients to stay overnight, and the penal code defines "habitation" as a structure that is adapted for the overnight accommodation of people. See id. § 30.01(1).
Finally, the State also provided sufficient evidence to establish that the hospital was owned by "another" as required by the criminal-trespass statute. The State can meet this burden by proving that the complainant—in this case, Jones—has a greater right to possession of the property than the defendant. See id. § 1.07(a)(35)(A); Arnold v. State, 867 S.W.2d 378, 379 (Tex. Crim. App. 1993); Azadpour v. State, No. 08-11-00309-CR, 2013 WL 2368812, at *3 (Tex. App.—El Paso May 29, 2013, no pet.) (not designated for publication). "Possession means actual care, custody, control, or management." Tex. Penal Code § 1.07(a)(39). Jones testified that he was the CEO of the Heart of Texas Healthcare System in Brady and that he was in charge of managing the day-to-day operations of the hospital. Appellant had the right to enter the hospital to seek medical care, but that right did not include making threatening gestures and comments directed at hospital officials. See Azadpour, 2013 WL 2368812, at *3 (affirming defendant's criminal-trespass conviction for remaining in municipal court after being told to leave and stating that defendant "certainly has a right to enter the building for the purpose of transacting business with the municipal courts, but that right does not include interfering with the municipal court clerk or creating a disturbance"). Because Jones had a greater right to possession of the hospital than appellant, the evidence is sufficient to establish ownership. See Tex. Penal Code § 1.07(a)(35)(A); Arnold, 867 S.W.2d at 379; Azadpour, 2013 WL 2368812, at *3 (police officer who maintained security in municipal court building had greater right to possession of building than defendant).
Considering all the evidence detailed above in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements of the offense of criminal trespass beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Temple, 390 S.W.3d at 360. Accordingly, we overrule appellant's sole issue.
CONCLUSION
Having overruled appellant's sole issue, we affirm the trial court's judgment of conviction.
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Field, and Bourland Affirmed Filed: March 30, 2016 Do Not Publish