Vasquez v. State

Full title: ARTHUR ELISEO VASQUEZ, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Apr 10, 2007

No. 05-06-00486-CR (Tex. App. Apr. 10, 2007)

Opinion

No. 05-06-00486-CR

Opinion filed April 10, 2007.

On Appeal from the 416th District Court, Collin County, Texas, Trial Court Cause No. 416-81095-04.

Before Justices LANG, LANG-MIERS, and MAZZANT.

OPINION

DOUGLAS S. LANG Justice.

Appellant was convicted by a jury of "improper photography or visual recording" and the trial court assessed his punishment at two years' confinement and a $1,000 fine. In two issues, appellant argues the trial court erred when it: (1) overruled his motion to declare section 21.15 of the Texas Penal Code unconstitutionally overbroad, and (2) overruled his motion to suppress the evidence of the contents of the videotape seized without a warrant. For the following reasons, we affirm the judgment of the trial court.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 4, 2003, about 12:45 AM, Officer Pfahning of the Plano Police Department arrived at 1521 Belgrade Street in Plano, Texas in response to a phone call reporting a prowler. Upon arrival at that address, Officer Pfahning observed appellant, dressed in dark clothing, "leaning over, looking in the front window" of the house. He shined his flashlight on appellant and asked him what he was doing. Appellant stood up and tried to run. Officer Pfahning caught appellant and noticed "a silver object," later identified as a videocamera, in appellant's hand. Officer Pfahning detained appellant, placed him in handcuffs, and arrested him for disorderly conduct. Also, he seized appellant's video camera which contained a videotape inside. Appellant made statements to Officer Pfahning that "the camera contained other instances of him videotaping girls, just like he had done that night or was going to do that night, and he began to kind of sob and cry and state that, you know, he needed help." Further, he explained to Officer Pfahning that he became aroused during the videotaping process and he masturbated at home while he viewed the tape. Officer Pfahning stated he seized the camera as a search incident to arrest and because he "believed that it would give evidence to other instances of disorderly conduct or other offenses." Detective Epperson testified that when he arrived at work on the morning of November 4, 2003, he found Officer Pfahning's arrest report and a videocamera with a videotape inside on his desk. After reading the arrest report, without obtaining a warrant, he viewed the entire videotape, which was labeled "private shows." The defendant was in custody when Detective Epperson viewed the videotape. Detective Epperson stated the videotape contained numerous scenes of girls videotaped through their bedroom windows in various states of nudity. Then, Detective Epperson read appellant the Miranda warnings and interviewed him. Appellant voluntarily waived his Miranda rights and admitted videotaping multiple females through their bedroom windows. Later, appellant admitted to another Detective, Luke Grant, that he videotaped the females for the purpose of sexual gratification. Prior to trial, appellant filed a motion to suppress the contents of the videotape and a motion to declare section 21.15(b)(1) of the Texas Penal Code unconstitutional for overbreadth. The trial court denied both of his motions, stating in pertinent part:

"The Court is overruling the objection to the contents of the tape seized from the defendant. The Court finds it was lawfully seized and that the officers had the ability to view the contents of the tape without obtaining a warrant first, as it was in the lawful custody of the police authority and that there was no violation of the State or Federal Constitution in viewing that tape."

At trial, the videotape was played for the jury. The jury found appellant guilty of the offense of improper photography or visual recording under section 21.15(b)(1) of the Texas Penal Code. He now appeals.

II. CONSTITUTIONALITY OF STATUTE

In his first issue, appellant contends section 21.15(b)(1) of the Texas Penal Code is unconstitutional under the First Amendment to the United States Constitution because it is overbroad. First, he argues section 21.15(b)(1) is overbroad because it fails to narrow the prohibited conduct to "visually recording another person's genitalia or those areas of the body wherein a person would have a reasonable expectation of privacy." Second, he argues the statute, "fails to state that for such covert recording to be unlawful, the person being recorded must be in a place where that person would have a reasonable expectation of privacy." The State responds appellant has not met his burden in proving the statute is overbroad because he has not shown the statute reaches a "substantial" amount of constitutionally protected conduct or speech. We decide this issue against appellant.

A. Standard of Review and Applicable Law

The constitutionality of a criminal statute is a question of law which we review de novo. Owens v. State, 19 S.W.3d 480, 483 (Tex.App.-Amarillo 2000, no pet.); State v. Salinas, 982 S.W.2d 9, 10-11 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). When reviewing the constitutionality of a statute, we presume the statute is valid and the legislature has not acted unreasonably or arbitrarily in enacting the statute. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App. 2002); Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App. 1978). The burden rests on the party challenging the statute to establish its unconstitutionality. Rodriguez, 93 S.W.3d at 69. We are obliged to uphold a statute if we determine a reasonable construction which will render it constitutional. See Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App. [Panel Op.] 1979). An overbreadth attack on a statute is recognized only in the context of a First Amendment challenge. See generally Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984). Before a statute will be held unconstitutional on its face, the overbreadth must be substantial. See Members of City Council of City of Los Angeles, 466 U.S. at 800. "The concept of `substantial overbreadth' is not readily reduced to an exact definition." Id. However, a statute will not be invalidated for overbreadth merely because it is possible to imagine some unconstitutional applications. See Id. Rather, "there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court." Id. at 801. A statute that prohibits intentional conduct is rarely subject to a facial overbreadth challenge. Sullivan v. State, 986 S.W.2d 708, 712 (Tex.App.-Dallas 1999, no pet.).

C. Application of Law to Facts

Appellant was charged with violating Section 21.15(b)(1) of the Texas Penal Code, entitled "Improper Photography or Visual Recording," which provides in pertinent part:

(b) A person commits an offense if the person:

(1) photographs or by videotape or other electronic means visually records another:

(A) without the other person's consent; and

(B) with intent to arouse or gratify the sexual desire of any person. See Tex. Pen. Code Ann. § 21.15(b) (Vernon Supp. 2006).

Appellant argues section 21.15(b)(1) is unconstitutionally overbroad because it "embraces a substantial amount of protected activity and expression." He argues the "commonness of cameras and videocameras" and the fact that the conduct is in public "makes it reach a substantial amount of potentially protected conduct." We disagree. In attempting to meet his burden of showing the statute is unconstitutionally overbroad on its face, appellant identifies in his appellate brief various examples of "conduct that modern society tolerates" to which he asserts the statute could be applied unconstitutionally. He offers the examples of a person with a recognized "fetish," or someone "videotaping unknown people at one of Texas' many public beaches or lakes" to demonstrate the statute's overbreadth. The State responds appellant's arguments are without merit because the statute "would cover such recordings only if they were made with the non-constitutionally protected intent of gaining sexual arousal or gratification." The examples appellant cites in his brief do not appear in the record as having been presented to the trial court for consideration. Nevertheless, even had appellant presented these examples to the trial court, the examples are insufficient to meet appellant's burden to show the statute reaches a substantial amount of constitutionally protected conduct because, at best, these examples merely reflect instances where it is possible to imagine some unconstitutional applications. ¹ See Members of City Council of City of Los Angeles, 466 U.S. at 800. Further, and pivotal is that the statute requires both specific "intent" and "lack of consent" by the complainant. In order for one to commit the proscribed conduct under section 21.15(b)(1), one must have the specific intent to arouse or gratify the sexual desire of any person. Tex. Pen. Code Ann. § 21.15(b)(1)(B). A statute that prohibits intentional conduct is rarely subject to a facial overbreadth challenge. Sullivan, 986 S.W.2d at 712. Further, the statute requires the lack of consent by the complainant. See Tex. Pen. Code. Ann § 21.15(b)(1)(A). The plain language of the statute narrows the proscribed conduct, and therefore, does not reach a substantial amount of protected conduct. We are obliged to uphold a statute if we can determine a reasonable construction which will render it constitutional. See Ely, 582 S.W.2d at 419. Accordingly, we conclude appellant has not met his burden regarding his claim of unconstitutional overbreadth of section 21.15(b)(1). Appellant's first issue is decided against him.

III. MOTION TO SUPPRESS

In his second issue, appellant asserts the trial court erred when it denied his motion to suppress the contents of the videotape seized from appellant because no warrant was obtained prior to viewing the videotape. He argues the contents of the videotape should have been suppressed because he had a "high expectation of privacy in the seized videotape," and no exigent circumstances existed that would have permitted the officer to seize the videotape without a warrant. The State responds the trial court did not err because the videotape was seized during a lawful search incident to an arrest, and appellant had no reasonable expectation of privacy in the videotape. We cannot agree with appellant and decide this issue against him.

A. Standard of Review

A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. See Randolph v. State, 152 S.W.3d 764, 769 (Tex.App.-Dallas 2004, no pet.). This standard of review gives almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); Smith v. State, 176 S.W.3d 907, 913 (Tex.App.-Dallas 2005, pet. ref'd); Randolph, 152 S.W.3d at 769. A trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000); Randolph, 152 S.W.3d at 769.

B. Applicable Law

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. U.S. Const. amend. IV. Similarly, Article 1, § 9 of the Texas Constitution provides, in part, that a person shall be secure in their persons and houses from all unreasonable seizures and searches. Tex. Const. art. 1, 9. Searches or seizures conducted without a warrant are unreasonable per se under the Fourth Amendment, with a few specifically defined and well-established exceptions. See Katz v. U.S., 389 U.S. 347, 357 (1967); McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App. 2003). Any evidence seized in violation of the constitutions or laws of the United States or the State of Texas is inadmissible against the accused in a criminal trial. See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). Evidence seized incident to arrest is admissible if sufficient probable cause existed to justify the arrest. See McGee, 105 S.W.3d at 615. An officer may make a warrantless arrest for any offense that is committed in the officer's view or presence. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). However, the total facts and circumstances within the officer's knowledge at the time of arrest must be sufficient to justify a prudent person in believing that the arrested person has committed or is committing an offense. See Chilman v. State, 22 S.W.3d 50, 56 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). In Oles v. State, the Court of Criminal Appeals addressed the issue of "whether law enforcement, without a search warrant, may test the clothing of a person lawfully arrested and in custody for one offense in order to investigate that person's involvement in another (a second) offense, when there are no exigent circumstances to justify the warrantless testing, nor is there probable cause to test the clothing for the second offense." Oles v. State, 993 S.W.2d 104-05 (Tex.Crim.App. 1999). In that case, the defendant was lawfully arrested for a crime, but his clothing was tested, eight days later, for an unrelated crime. Id. at 105. There was no visible evidence on the clothing that would link the defendant to the second crime. Id. In Oles, the court stated, "once it is determined that police lawfully seized the personal effects of an arrestee, his expectation of privacy is diminished in those effects until he can and does exhibit subjective expectations through his conduct, presumably at the time of release from detainment or incarceration." Oles, 993 S.W.2d at 110 (emphasis in original). In determining whether a person has a legitimate expectation of privacy, the court analyzed: (1) whether the individual by his conduct, has exhibited an actual expectation of privacy, and (2) whether the individual's subjective expecation of privacy is one that society is prepared to recognize as reasonable. Id. at 105 (citing Smith v. Maryland, 442 U.S. 735, 741 (1979), Villareal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996) (plurality opinion)). C. Application of Law to Facts The record reflects appellant was lawfully arrested for disorderly conduct based on a phone call reporting a prowler in the area. Officer Pfanning of the Plano Police Department seized appellant's video camera and videotape as a lawful search incident to his arrest. The trial court determined the evidence was lawfully seized and viewed without a warrant, and denied his motion to suppress. On appeal, appellant argues there were no exigent circumstances permitting the warrantless seizure of evidence. The record reveals appellant did not raise this argument in his motion to suppress or at the pre-trial hearing on his motion to suppress. Therefore, he failed to preserve this complaint on appeal. See Tex. R. App. P. 33.1(a). Appellant argued at trial and before this court that he had a high expectation of privacy in the seized videotape because he labeled the tape "private." Although appellant labeled the videotape "private," once he was in custody he could not exhibit a subjective expectation of privacy from his jail cell. See Oles, 993 S.W.2d at 108-109. Further, we agree with the reasoning in Oles, "it is nearly certain that society would not recognize this belief as objectively reasonable." See Id. at 110. We conclude the trial court did not err in denying appellant's motion to suppress the contents of the videotape. Accordingly, we resolve appellant's second issue against him.

IV. CONCLUSION

The judgment of the trial court is affirmed.