Dornbusch v. State

• Decision Date: 27 January 2005
• Docket Number: No. 13-02-700-CR.,13-02-700-CR.
• Citation: 156 S.W.3d 859
• Parties: John Perry DORNBUSCH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

156 S.W.3d 859

John Perry DORNBUSCH, Appellant, v. The STATE of Texas, Appellee.

No. 13-02-700-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

January 27, 2005.

Rehearing Overruled March 24, 2005.

William J. McCarthy, Eaton & McCarthy, Mc Allen, for appellant.

Amy Howell Alaniz, Asst. Dist. Atty., Theodore C. Hake, Asst. Criminal Dist. Atty., Edinburg, for appellee.

Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.

OPINION

Opinion by Justice GARZA.

Appellant, John Perry Dornbusch, appeals his conviction for one count of inducing sexual conduct by a child. See Tex. Pen.Code Ann. § 43.25(b) (Vernon Supp.2004-05). Because we conclude that section 43.25(b) of the Texas Penal Code is not unconstitutionally vague and the evidence is legally and factually sufficient to support the conviction, we affirm. See id.

I. Facts

The offense in question allegedly occurred on December 8, 2000. At the time, Dornbusch was a band director at Hidalgo High School in Hidalgo, Texas. He was charged by indictment with three counts of inducing sexual conduct by a child and pled not guilty to all three counts.

At trial, Dornbusch and the State presented very different accounts of what happened on December 8, 2000. According to the State, Dornbusch persuaded two female students, V.V. and J.R., to run errands with him during school hours. The two girls, both seventeen-year-old seniors, had skipped their after lunch classes and were hanging out in the band hall. V.V. and J.R. both testified that Dornbusch, who was working in his office located in the band hall, invited them to accompany him in his new pick-up truck to collect some band instruments. They agreed and joined him, first driving to a middle school in McAllen, Texas and then to a music store. Next, Dornbusch went to a convenience store and purchased sodas and alcoholic beverages for them. He then drove to a motel in Pharr, Texas. Both girls claimed that Dornbusch was the one who suggested getting a motel room, telling the girls, "We only live once." V.V. testified that she and J.R. just looked at each other without responding: "We didn't say yes or no."

The two girls described the motel room, which was equipped with a hot tub. J.R. testified that the two of them undressed in the bathroom and got into the hot tub wearing towels from the motel, while Dornbusch got into the tub completely naked. Dornbusch teased the girls for wearing towels, which they then removed. According to both girls, Dornbusch then began touching their genitalia. He took J.R. to the bed and attempted to perform oral sex on her. When she closed her legs to prevent him from doing so, Dornbusch allowed J.R. to return to the hot tub and guided V.V. to the bed, where he performed oral sex on her. Afterward, the three of them left the motel. Dornbusch dropped J.R. off at her home around 4 p.m. and then returned to the high school with V.V.

Several witnesses verified various parts of the girls' testimony. The clerk at the motel, Beth Hamill, identified Dornbusch in court as the man to whom she had rented the hot tub room at 2:11 p.m. According to Hamill, the man had identified himself as "James Ferris" and paid for the room in cash without showing identification.

Marshall Doherty, the owner of the motel, testified that a registration card was filled out by a man matching Dornbusch's description on December 8, 2000. He also testified to having picked Dornbusch's picture out of the faculty photographs from a Hidalgo High School yearbook when asked by a school investigator to identify the man who rented the room.

Kenneth Crawford, a handwriting expert, identified at least thirteen similarities between the handwriting on the registration card and Dornbusch's handwriting but he could not conclude with scientific certainty that Dornbusch had filled out the card.

Irma Molina, the principal of Hidalgo High School, testified that she took statements from both V.V. and J.R. regarding the events in question. She also had both girls separately draw diagrams of the motel and the motel room. She testified that the diagrams drawn by the girls corresponded to the layout of the actual motel and the hot tub room rented by "James Ferris."

Domenica Salinas, who lived with J.R. at the time, saw Dornbusch drive to J.R.'s house around 4 p.m. in a blue pick-up truck and watched J.R. enter the house.

Dr. Daniel King, the school superintendent, directed much of the school's investigation into the allegations against Dornbusch. He testified to having received a copy of the registration card from the motel and discovering that the first six digits of the driver's license number on the card were identical to the first six digits of Dornbusch's license (only the last two numbers were different). He also noted that the post office box number on the registration card was the same as Dornbusch's mail box number, though the cities were different. Dr. King also obtained videotapes from school security cameras for the day in question. They showed Dornbusch's truck entering the school parking lot at 4:11 p.m. and Dornbusch entering the band hall shortly thereafter accompanied by an unidentified female. The tapes were admitted as evidence.

Dornbusch testified to a very different version of events. He denied being with the girls on December 8 and denied having any sexual contact with either of them. Dornbusch testified that he left school after 1 p.m. and met his mother at home. They went to lunch together from approximately 2:30 to 3:30 p.m. He then ran errands until around 4 p.m., when he returned to campus. One of the errands was to check on instruments being repaired at a music store. Dornbusch's mother, Frances Ann Dornbusch, provided corroborative testimony. In addition, Dornbusch's wife testified that he was at home at 2:30 p.m. because he called her from their home phone at that time. As evidence of these events, Dornbusch produced copies of a check made out to the restaurant where he and his mother ate lunch, cell phone records for the day in question, and invoices from an instrument repair shop he allegedly visited that afternoon. Upon deliberation, the jury found Dornbusch guilty of one count for inducing V.V. to engage in oral sex on December 8, 2000. Dornbusch was sentenced to two years' imprisonment, suspended for a term of two years' community supervision.

Dornbusch now raises ten issues on appeal; however, as several of the issues are either repetitive or interrelated, we restate them as follows:¹ (1) section 43.25(b) of the Texas Penal Code, under which Dornbusch was convicted, is void because it is unconstitutionally vague; (2) there was legally and factually insufficient evidence to support the jury's finding of "inducement" or "knowing the character and content thereof"; (3) Dornbusch's conviction violates the legislature's intent that section 43.25(b) apply only in the context of commercial, pornographic sexual performances; (4) there was factually insufficient evidence to support the motel clerk's in-court identification of Dornbusch; and (5) the trial court erred by denying Dornbusch's motion for a directed verdict because there was legally and factually insufficient evidence to support the conviction.

II. Constitutionality of Penal Code Section 43.25

Dornbusch contends that section 43.25(b) is unconstitutionally vague and therefore void. See id. He argues that his conviction under section 43.25(b) violates his rights to due process and due course of law under the constitutions of the United States and Texas. See id.

The language of section 43.25(b) is as follows: "A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance." Id.² Dornbusch argues that the terms "induce" and "knowing the character and content thereof" are unconstitutionally vague because they fail to provide fair notice of the proscribed conduct and create the potential for arbitrary and selective law enforcement. See id. We will review the constitutionality of the statute to address these due process and due course of law concerns, and to avoid repetition, we will also decide Dornbusch's challenges to the legal and factual sufficiency of the evidence on the elements of "inducement" and "knowing the content and character thereof." See id.

When reviewing the constitutionality of a statute, we presume that the statute is valid and that the legislature did not act unreasonably or arbitrarily in enacting it. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002); see also Tex. Gov't Code Ann. § 311.021 (Vernon 1998). The burden is on appellant to prove the statute is unconstitutional. See Rodriguez, 93 S.W.3d at 69. The statute must be upheld if it can be reasonably construed as constitutional. Brenneman v. State, 45 S.W.3d 729, 732 (Tex.App.-Corpus Christi 2001, no pet.).

Dornbusch contends that section 43.25(b) is vague on its face within the meaning of the due process clause. See § 43.25(b). To prevail, Dornbusch must first show that the statute is unconstitutional as applied to him. See Brenneman, 45 S.W.3d at 732.

A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice that his or her contemplated conduct is forbidden or if it encourages arbitrary and erratic arrests and convictions. Id. A statute is not vague or indefinite merely because some of its words or phrases are not specifically defined. Id. A statute provides fair notice to citizens and adequate guidelines for law enforcement if it "communicates its reach in words of common understanding." State v. Markovich, 77 S.W.3d 274, 280 (Tex.Crim.App.2002) (citing Boos v. Barry, 485 U.S. 312, 322, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988)).

A. Inducement

1. Unconstitutional Vagueness

We begin with the word "induce." See § 43.25(b). "Induce" is not defined by the penal code. See id. We...