Anthony v. State
| Decision Date | 30 November 2006 |
| Docket Number | No. 06-05-00133-CR.,06-05-00133-CR. |
| Citation | 209 S.W.3d 296 |
| Parties | Lamar ANTHONY, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
J. Paul Nelson, Law Office of J. Paul Nelson, Henderson, for appellant.
Bill Saban, Asst. Dist. Atty., Henderson, for appellee.
Before MORRISS, C.J., ROSS and CARTER, JJ.
Lamar Anthony, Jr., was convicted by a Rusk County jury for trespassing in a city park. The City of Henderson has an unwritten policy delegating to its police officers the authority to ban persons from public parks at the officers' discretion.1 Shortly after being given notice to remain out of Yates Park2 by Police Sergeant Bryan Pool, Anthony was observed by Officer Chad Bradley, also a Henderson police officer, in the parking lot adjoining Yates Park. When Bradley informed Pool of his observation, Pool arrested Anthony for criminal trespass. The information filed, charging Anthony with that misdemeanor offense, alleged that Anthony trespassed on property owned by Greg Smith, the city manager of Henderson. After the jury found Anthony guilty, the trial court assessed punishment at ten days' confinement in the county jail.
Anthony appeals, raising four points of error. In his first point, Anthony contends the trespass policy of Henderson, on its face, violates the Due Process Clause of the United States Constitution. He contends, in his second and third points, that the trespass policy is both facially unconstitutional and unconstitutional as applied because it violates the First Amendment to the United States Constitution. Last, Anthony contends the evidence is legally and factually insufficient because the State failed to prove Smith owned Yates Park.
We will first address Anthony's allegation that the unwritten policy violates the Due Process Clause. Although we reject Anthony's substantive due-process argument, we agree the unwritten policy violates procedural due process and is unconstitutionally vague. Because the unwritten policy violates the Due Process Clause, we find it unnecessary to determine whether the policy also violates the First Amendment, either facially or as applied to Anthony. We then address the sufficiency of the evidence and conclude that, even if the State was required to prove ownership of Yates Park, the evidence that Greg Smith had a greater right of possession was sufficient. But because the unwritten policy is unconstitutional, Anthony had effective consent to be at the park during its regular hours of operation. Therefore, the evidence is legally insufficient to support Anthony's conviction for criminal trespass.
The evidence showed that, after information was received that Derek Anthony,3 a suspect wanted on felony drug charges, was "in a vehicle that was inside Yates Park," several members of the Henderson Police Department were dispatched to that location. Apparently, at about the same time, Anthony rode with his cousin, Chris Hill, to Yates Park where they intended to play basketball. Officer Amber Tyson detained Hill's vehicle in the parking lot of the park just before Pool arrived.
Pool testified that, when he arrived at the scene, Anthony was engaged in a conversation with Tyson and was "being a little loud" and did not appear to be willing to cooperate. According to Pool, Anthony was " Because a crowd of approximately ten to fifteen people had gathered, Pool testified he was becoming concerned for the safety of the officers. Pool also testified that Anthony was interfering with the officers' search for the suspect and that he felt Anthony may have been creating a diversion to allow the suspect to escape. Pool further testified he turned toward Anthony and " Pool testified that, because of his past experience with Anthony, he did not believe Anthony respected authority or understood what he had just said, so he told him:
On cross-examination, Pool admitted he told Anthony to leave the park after Anthony had informed Hill that the police did not have a warrant to search his car. Pool denied, however, that he told Anthony to leave the park because Anthony had advised Hill of his legal rights. Pool further testified that, when a person receives what the City describes as a "criminal trespass warning," there is no set time limit for that warning to expire, and it is effective "from now on."
Anthony and Hill testified to a similar, although slightly different, series of events. Anthony denied being loud when conversing with Tyson and, in fact, denied even talking to Tyson. Hill testified that Tyson merely requested to see Hill's driver's license and proof of insurance. Anthony testified that, when Pool requested to look in the car's trunk, he asked Pool, "What do you want to search the car for?" According to Anthony, Pool responded, "That's none of your business, you need to get out of my park."
Approximately ten to fifteen minutes later, the police department received an anonymous call that Derek was possibly in a truck that was in Yates Park. Police officers were again dispatched to the park. There, Officer Bradley detained a pickup truck in the middle of the parking lot of the park. The driver of that truck was Stephanie Anthony. Bradley testified Anthony was in the truck when Bradley initiated contact with Stephanie. Stephanie testified that, just before she was detained by Bradley, Anthony had gotten in the truck with her and she intended to drive him home. However, when Bradley arrived, Anthony exited the truck and left the park. Because Bradley was not aware Anthony had been given a warning to remain out of the park, he let Anthony leave.
When Pool arrived in response to the second call, he observed Anthony standing in the entrance to the parking lot of Yates Park. Anthony was in the process of getting into Hill's car. Pool detained Anthony and then asked Bradley whether Anthony had been in the park. Bradley confirmed that he had, and Pool then arrested Anthony. Pool testified that, because he was not certain where the property line of the park was located, he did not personally observe Anthony in the park.4 It is uncontested that Anthony was at the park during the park's regular hours of operation.5
Smith testified Yates Park is owned by the City of Henderson. Although Smith testified he did not personally own the park, he did testify the City of Henderson has a greater right of possession than Anthony and that he (Smith) manages all "day to day operations" of the City. Smith also testified he had delegated to the city police officers the authority to issue what the City describes as "criminal trespass warnings." The City's unwritten policy delegates to individual officers the authority to issue warnings, banning individuals from the park. The determination of who is banned is made on a case-by-case basis and left to the discretion of the individual officer. The City has no written criteria to guide the officers in exercising their discretion. Smith testified that, if it was brought to his attention that an officer was being arbitrary or capricious, he would overrule the officer's decision.6 When asked whether the appeal procedure was in writing, Smith testified, "[n]ot to my knowledge." Smith also testified he has never had anyone "appeal" a warning.
The Due Process Clause of the United States Constitution provides that a State shall not "deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV. When an attack on the constitutionality of a statute or regulation is presented for determination, we begin with the presumption that the statute or regulation is valid. See Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim.App.1978); Morris v. State, 833 S.W.2d 624, 627 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd). A party challenging a statute on the basis that the statute violates the Due Process Clause of the Fourteenth Amendment bears the burden of demonstrating the scheme's unconstitutionality. Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 198, 121 S.Ct. 1446, 149 L.Ed.2d 391 (2001); Granviel, 561 S.W.2d at 511.
Before we can delve into the merits of Anthony's due-process arguments, we must first decide two preliminary issues. First, we must decide whether the due-process arguments are preserved. After concluding that a facial due-process challenge can be raised for the first time on appeal, we will address whether Anthony had a protected liberty or property interest in Yates Park. Delving into the merits, we then address whether the unwritten policy violates substantive due process, is unconstitutionally vague, or violates procedural due process.
The State contends Anthony failed to preserve error on his due-process argument. After the State rested, and again at the conclusion of trial, Anthony requested a directed verdict.7 Although Anthony did challenge the constitutionality of the unwritten policy, the State contends Anthony failed to advance the same due-process arguments raised on appeal. Anthony's due-process argument, though, only presents a facial challenge to the City's criminal trespass rule. An appellant does not waive error if he or she fails to raise a facial constitutional challenge to a...
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