Bobo v. State

• Decision Date: 28 July 1988
• Docket Number: B14-87-366-CR,B14-87-264-C,B14-87-265-C,B14-87-363-C,Nos. B14-87-362-C,s. B14-87-362-C
• Citation: 757 S.W.2d 58
• Parties: James Christian BOBO, David Ray Marshall, Margaret Fall Harper, Leon Spivey, John Dalton Witte, & Marjorie Nelson, Appellants, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 58

757 S.W.2d 58

James Christian BOBO, David Ray Marshall, Margaret Fall Harper, Leon Spivey, John Dalton Witte, & Marjorie Nelson, Appellants, v. The STATE of Texas, Appellee.

Nos. B14-87-362-CR, B14-87-363-CR, B14-87-264-CR,

B14-87-265-CR, B14-87-366-CR

Court of Appeals of Texas Houston (14th Dist.).

July 28, 1988.

Discretionary Review Refused Dec. 21, 1988.

Richard W. Schmude, Tomball, for appellants.

John Holmes, Jr., Kathlyn Giannaula, Houston, for appellee.

Before MURPHY, DRAUGHN and ELLIS, JJ.

OPINION

PER CURIAM.

This is a trespass case. Appellants, James Christian Bobo, David Ray Marshall, Margaret Fall Harper, Leon Spivey, John Dalton Witte, and Marjorie Nelson, appeal from judgments of conviction for the offense of misdemeanor criminal trespass. TEX.PENAL CODE ANN. § 30.05 (Vernon Supp.1988). The jury assessed punishment after finding appellants guilty, as charged in the informations, of having trespassed at the West Loop Clinic, a Harris County pregnancy termination facility. Appellants Nelson, Harper, and Witt received a ninety day jail sentence, and a $650 fine. Appellants Spivey and Marshall received a one hundred twenty day jail sentence, and a $850 fine. Appellant Bobo received a one hundred eighty day jail sentence, and a $1,000 fine. The trial court probated the sentences for one hundred eighty days, on condition that each appellant perform forty hours of community service and refrain from "trespassing, demonstrating, or picketing" at the clinic, which had changed its location to 607 Schumacher in Harris County. We affirm the judgment of the trial court, as modified.

Appellants raise fourteen points of error. The first eight points question the propriety of the trial court's rulings which resulted in exclusion of evidence the appellants argue is relevant to their claimed justification defenses. Points of error nine, ten, and eleven concern the prosecutor's closing argument. Appellants' twelfth point of error challenges certain conditions of their probation. In point of error thirteen, appellant Marshall argues the trial court erroneously denied his motion for an instructed verdict. In point of error fourteen, the appellants claim their informations did not allege offenses under Texas law.

Appellants' convictions arose from their participation in a demonstration at the West Loop Clinic, then located at 2909 West Loop South. It is undisputed that the clinic was a licensed medical facility. The clinic consisted of two main areas: a lobby and waiting area, just inside its front glass doors; and an inner area composed of an office and at least a dozen other rooms, including procedures rooms. A sliding reception window and a door separated the lobby from the clinic's inner areas. A sign affixed to the glass of the clinic's front lobby door entrance indicated the clinic was not a public place and that only those who had business with the clinic would be allowed in the waiting room. The record indicates the sign may have been removed at some time during the demonstration.

The record shows that appellants were among a large group of people who rushed into the lobby area of the clinic just before 8 a.m. on September 20, 1986, and stayed there until the police arrested them approximately three and one-half hours later. At trial, several witnesses identified the six appellants as members of the group. Most of the staff and several patients had already arrived at the clinic when appellants Spivey and Marshall chained the two front lobby doors together, and chained themselves to chairs in the waiting room. Appellants Nelson and Harper sat down on the floor, and other members of the group blocked the door to the inner area of the clinic. Many in the group carried chains and wore black armbands. Prior to entering the clinic, appellant Witte blocked the clinic's side emergency entrance by parking his van in front of it.

A female employee arrived at the clinic at around 8:00 a.m. Although the doors had already been chained together she managed to enter the lobby by slipping through a gap between them. Her trial testimony shows that the sign limiting access to the clinic was still posted on the glass doors when she arrived. She also stated she could not enter the inner area of the clinic because approximately twenty people blocked the door, but that she later managed to gain access to the clinic's inner area by climbing through the reception window. Several others, patients, or friends or relatives of patients, followed her, as did appellant Bobo.

Clinic administrator Evicel Ortega first called the police when she appraised the situation in the lobby and concluded it would be futile to tell the protestors to leave because of their noise. A staff member called police a second time after appellant Bobo climbed through the reception window into the clinic's inner area, but by the time police arrived Bobo had climbed back through the window into the lobby. At around 11:30 a.m., Houston Police Officer M.A. Walker and the clinic administrator both entered the lobby and asked all the protestors, including the six appellants, to leave the premises. Ten minutes later, when no one left voluntarily, police arrested the appellants.

In their fourteenth point of error, appellants claim the State's charging instruments failed to allege offenses under Texas law. In each information, the State alleged the appellants did:

intentionally and knowingly enter and, after receiving notice to depart, remain in a building owned by Evicel Ortega, hereafter styled the Complainant, without the effective consent of the Complainant.

Although they failed to file motions to quash the indictment, appellants now contend the failure of the informations to allege who told them to leave amounts to fundamental error requiring dismissal of the informations. We disagree.

Appellants have waived all but jurisdictional defects by failing to object to the informations. See TEX.CODE CRIM.PROC.ANN. art. 1.14 (Vernon Supp.1988); Thompson v. State, 697 S.W.2d 413, 415 (Tex.Crim.App.1985) (en banc); Green v. State, 571 S.W.2d 13, 14 (Tex.Crim.App. [Panel Op.] 1978). Green defines a jurisdictional defect as one that fails to allege the elements constituting the offense, and thereby renders the indictment insufficient. 571 S.W.2D AT 15. ¹ In evaluating a claim of fundamental error raised for the first time on appeal, Thompson requires this court to construe the entire charging instrument liberally. 697 S.W.2d at 415. Thus, this court will order the informations dismissed only if we conclude, after construing them liberally and in their entirety, that the State failed to allege the essential elements of the offense of criminal trespass. Thompson, 697 S.W.2d at 415; Beck v. State, 682 S.W.2d 550, 554 (Tex.Crim.App.1985) (en banc); Green, 571 S.W.2d at 15. See also, Martinez v. State, 742 S.W.2d 687 (Tex.Crim.App. 1987) (en banc) (unless a fact is an essential element of the offense, as opposed to an evidentiary fact, the State need not plead it); accord, TEX.CODE CRIM.PROC.ANN. art 21.03 (Vernon 1966) (charging instrument should state everything the State must prove); TEX.CODE CRIM.PROC.ANN. art. 21.11 (Vernon 1966) (requiring clear and certain allegation of commission of offense).

Ordinarily, if the accusation of a charging instrument uses the same or similar language as the statute proscribing the offense, it will suffice to confer jurisdiction on the court and to give the accused adequate notice. TEX.CODE CRIM.PROC.ANN. art. 21.17 (Vernon 1966); Thompson, 697 S.W.2d at 415; Beck, 682 S.W.2d at 554. Case law construing TEX.PENAL CODE ANN. § 30.05 states that a person commits the offense of criminal trespass if: he knowingly, intentionally, or recklessly enters or remains on the property or in a building of another; without the effective consent of the owner; when he either had notice that entry was forbidden, or failed to depart after receiving notice to do so. See Johnson v. State, 665 S.W.2d 554, 556 (Tex.App.-Houston [1st Dist.] 1984, no pet.), citing Day v. State, 532 S.W.2d 302, 305-06 (Tex.Crim.App.1975). Although § 30.05(b)(2)(A-C) further defines "notice," we are not aware of any authority, either case law construing § 30.05, or provisions of the Code of Criminal Procedure, which would categorically require the State to allege the means of notice in order to sufficiently charge the accused. Nor have appellants cited any authority.

Here the information alleged essential elements of § 30.05(a): intentional and knowing entry; without consent; remaining; after notice to depart (the statutory alternative to notice that entry was forbidden). We hold the information was amply sufficient to charge appellants with criminal trespass for jurisdictional purposes, and reject their fundamental error claim. Appellants' fourteenth point of error is overruled.

In their first eight points of error, appellants challenge pre-trial and trial rulings by the trial court which they argue resulted in an exclusion of evidence relevant to their claimed justification theories, defense of third persons and necessity, TEX.PENAL CODE ANN. §§ 9.33 & 9.22 (Vernon 1974), respectively. Appellants further contend the court's exclusionary rulings denied them a fair trial, in violation of U.S. CONST. amend. VI, and denied them due process and due course of law in violation of U.S. CONST. amend. XIV and TEX.CONST. art. I, § 19. We disagree.

Appellants' first three points of error question the propriety of the trial court's granting a motion in limine in favor of the State. The motion indicates the State asked the court to prohibit evidence concerning abortions because the State sought to avoid discussion of the morality of abortion and to limit the trial to the issue of whether a criminal trespass had occurred.

Mere granting of a motion in limine cannot constitute reversible error. Romo v. State, 577 S.W.2d 251, 252 (Tex.Crim.App. [Panel Op.] 1979); Ransom...