Bader v. State

• Citation: 15 S.W.3d 599
• Parties: (Tex.App.-Austin 2000) Michael Bader, Appellant v. The State of Texas, Appellee NO. 03-99-00014-CR
• Decision Date: 30 March 2000
• Court: Court of Appeals of Texas

Page 599

15 S.W.3d 599 (Tex.App.-Austin 2000)

Michael Bader, Appellant v. The State of Texas, Appellee

NO. 03-99-00014-CR

COURT OF APPEALS OF TEXAS,

AUSTIN.

March 30, 2000.

FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY NO. 508348, HONORABLE DAVID F. CRAIN, JUDGE PRESIDING

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Chief Justice ABOUSSIE, Justices B.A. SMITH and YEAKEL.

LEE YEAKEL, Justice.

A jury convicted appellant, Michael Bader, of criminal trespass. See Tex. Penal Code Ann. § 30.05 (West Supp. 2000)¹ ("criminal-trespass statute"). The county court at law sentenced appellant to fifteen days' confinement in the Travis County Jail. Appellant raises two issues on appeal: (1) the criminal-trespass statute is unconstitutional on its face and as applied to him, and (2) the evidence was insufficient to establish that he was on the property "of another" as required by the criminal-trespass statute. See id. We will affirm the county court at law's judgment.

FACTUAL BACKGROUND

On August 12, 1998, appellant was arrested for criminal trespass on the campus of the University of Texas at Austin. Appellant had previously received two criminal-trespass warnings for being on the university campus. Officer Pieper of the University of Texas Police Department (UTPD) issued appellant his first warning on September 20, 1997. At trial, Officer Pieper testified that, at the time of the first warning, appellant was in a television lounge inside the student union building. Access to the lounge was restricted to university students, faculty, and staff. Upon issuance of the warning, Officer Pieper told appellant that if he returned to campus, he would be arrested for criminal trespass. The warning extended to the entire campus.

Officer Chartier, also of UTPD, issued appellant's second warning on March 11, 1998. Officer Chartier found appellant sleeping on a sofa in the Flawn Academic Center. Appellant refused to sign the warning but left campus at Officer Chartier's request.

On August 13, 1998, a security guard saw appellant at a computer terminal in the Flawn Academic Center and reported his presence to UTPD. UTPD Officer Allen responded to the call and asked appellant to accompany him from the building. The officer requested appellant's identification and appellant gave him a false name and birth date. Officer Allen testified that because he was suspicious of the information appellant gave him, he called the UTPD station to request assistance from another officer. Officer Chartier arrived and recognized appellant. Using appellant's Capital Metro identification card, Officer Allen discovered appellant's actual identity and his prior criminal-trespass warnings. Officer Allen then arrested appellant for criminal trespass.

The University of Texas is a public, state-supported university. Appellant was neither a student nor a member of the university's faculty or staff at the time of these events.

DISCUSSION

By his first issue, appellant argues that the criminal-trespass statute is unconstitutional on its face and as applied to him in this particular situation.² By his second issue, he contends that there was insufficient evidence to prove beyond a reasonable doubt all of the elements of criminal trespass because the State did not show that appellant was on the property "of another." See id.

Constitutional Challenges

Appellant argues that the Texas criminal-trespass statute is unconstitutionally overbroad and unconstitutional as applied to him. The State contends that appellant waived his constitutional challenges because he failed to raise these issues before the trial court. See Tex. R. App. P. 33.1. Appellant, on the other hand, asserts that constitutional questions may be raised for the first time on appeal. We agree that a facial constitutional challenge may be first addressed on appeal. See Rabb v. State, 730 S.W.2d 751, 752 (Tex. Crim. App. 1987) ("Questions involving the constitutionality of a statute upon which a defendant's conviction is based should be addressed by appellate courts, even when such issues are raised for the first time on appeal."); Gravis v. State, 982 S.W.2d 933, 937 (Tex. App.--Austin 1998, pet. ref'd). However, there is a distinction between facial and "as applied" constitutional challenges because only facial challenges affect the jurisdiction of a court to render a judgment against a defendant. See McGowan v. State, 938 S.W.2d 732, 740 (Tex. App.--Houston [14th Dist.] 1996), aff'd sub nom. Weightman v. State, 975 S.W.2d 621 (Tex. Crim. App. 1998). In contrast, an "as applied" challenge acts as a defense to a conviction under a particular statute. See id. at 741-42. That statute, however, still confers upon the court the power to act. See id. at 741. An allegation of unconstitutional application of a statute cannot be raised for the first time on appeal; it must first be made to the trial court. See Medina v. State, 986 S.W.2d 733, 735 (Tex. App.--Amarillo 1999, pet. ref'd); McGowan, 938 S.W.2d at 742; Webb v. State, 899 S.W.2d 814, 817-18 (Tex. App.--Waco 1995, pet. ref'd); Tex. R. App. P. 33.1.

Relying on Smith v. State, 772 S.W.2d 946 (Tex. App.--Dallas 1989, pet. ref'd), appellant argues that the reasoning in Rabb extends to both facial and "as applied" constitutional arguments. In Smith, the court of appeals addressed both facial and "as applied" constitutional challenges for the first time on appeal without distinguishing between the two types of arguments. See Smith, 772 S.W.2d at 948. However, we choose to follow Medina, McGowan, and Webb, which apply the Rabb exception only to facial challenges. Texas Rule of Appellate Procedure 33.1 reflects the policy that issues should initially be presented to the trial court so as to provide that court with an opportunity to prevent error. See Rhett v. State, 839 S.W.2d 93, 94 (Tex. Crim. App. 1992).³ Any exceptions to this rule should be narrowly drawn.

Appellant did not preserve his "as applied" argument; his first issue is overruled to the extent it complains that application of the criminal-trespass statute to his particular situation is unconstitutional.

We now consider appellant's contention that the Texas criminal-trespass statute is unconstitutional on its face. Appellant argues that the statute is overbroad because it encompasses public universities and permits university officials to ban persons from campus for no reason or unconstitutional reasons. A statute may be overbroad if, although designed to punish activities that are not constitutionally protected, it also includes within its scope activities that come within the protection of the First Amendment. See 4 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law, 263-64 (1999).

An overbroad statute "sweeps within its scope a wide range of both protected and non-protected expressive activity." Hobbs v. Thompson, 448 F.2d 456, 460 (5th Cir. 1971). . . . A statute that is found to be overbroad may not be enforced at all, even against speech that could constitutionally be prohibited by a more narrowly drawn statute. See Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973) . . . .

However, a statute will not be invalidated for overbreadth merely because it is possible to imagine some unconstitutional applications. See Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984) . . . . Therefore, the [United States] Supreme Court has developed a requirement that the overbreadth must be "substantial" before the statute will be held unconstitutional on its face. See Taxpayers for Vincent, 466 U.S. at 800 . . . . Only if the statute "reaches a substantial amount of constitutionally protected conduct" may it be struck down for overbreadth. City of Houston v. Hill, 482 U.S. 451, 458 . . . (1978) (quoting Village of Hoffman Estates [v. Flipside, Hoffman Estates, Inc.], 455 U.S. [489,] 494 [(1982)] . . .).

Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 435 (Tex. 1998), cert. denied, 119 S. Ct. 2021 (1999). The criminal-trespass statute is clearly designed to punish activities that are not constitutionally protected. The question before us is whether the statute also "reaches a substantial amount of constitutionally protected conduct." Id. Appellant provides us with little help in making this determination. He makes no allegation that his speech was wrongfully suppressed or that he was a victim of discrimination because of his viewpoints. He does not claim that the criminal-trespass statute, by its terms, requires him to obtain approval for expressive or communicative conduct on the university campus. He concedes that he has suffered no violation of a constitutional right or freedom protected by the First Amendment. Rather, he appears to argue that a public university must have a constitutional basis to exclude a person from its campus. He asserts that he had a constitutional right to be on the university campus and that right "was violated due to the enforcement of an unconstitutional statute."⁴ We do not believe this assertion puts the potential deprivation of a right protected by the First Amendment in issue, and therefore appellant does not appear to present a proper overbreadth challenge to the criminal-trespass statute. However, in the interest of justice we will consider appellant's argument. See Tex. R. App. P. 38.1(e); 38.9. In so doing, we recognize that a litigant may, in certain instances, attack an overly broad statute without demonstrating that his own conduct could not be regulated by a statute that is more narrowly drawn. See Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). Construing appellant's complaint liberally, we believe it asserts that the statute's "very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Id.

The extent to which a government may control access to its property for expressive purposes depends on the nature of the...