Ex parte Ex parte Hollaway

• Decision Date: 12 October 2016
• Docket Number: No. 10-16-00157-CR,No. 10-16-00189-CR,10-16-00157-CR,10-16-00189-CR
• Parties: EX PARTE REBEKAH SEDIGAS EX PARTE ERIKA HOLLAWAY
• Court: Texas Court of Appeals

EX PARTE REBEKAH SEDIGAS

EX PARTE ERIKA HOLLAWAY

No. 10-16-00157-CR

No. 10-16-00189-CR

STATE OF TEXAS IN THE TENTH COURT OF APPEALS

October 12, 2016

From the County Court at Law No. 2 McLennan County, Texas

Trial Court No. 20160002HC2

From the County Court at Law No. 1 McLennan County, Texas

Trial Court No. 20160001HC1

MEMORANDUM OPINION

In two issues in appellate cause numbers 10-16-00157-CR and 10-16-00189-CR, appellants, Rebekah Sedigas and Erika Hollaway, challenge the trial court's denial of their applications for writ of habeas corpus challenging the constitutionality of the City of Waco's "no touch" ordinance for sexually-oriented businesses.¹ Because we conclude that the complained-of ordinance is facially constitutional, and because appellants' potential punishments do not violate the Eighth Amendment to the United States Constitution, we affirm.

I. BACKGROUND

Here, appellants were charged by information with a Class A misdemeanor for violating City of Waco ordinance section 20-17(c), which provides the following:

No employee who appears nude or semi-nude in a sexually oriented business shall knowingly or intentionally touch a customer or the clothing of a customer on the premises of a sexually oriented business. No customer shall knowingly or intentionally touch such an employee or the clothing of such an employee on the premises of a sexually oriented business.

CITY OF WACO ORDINANCE § 20-17(c).

Thereafter, appellants filed pre-trial applications for writ of habeas corpus arguing that the ordinance is facially unconstitutional because it is overboard and encompasses lawful conduct. Appellants also asserted that the ordinance violates article 1, section 13 of the Texas Constitution and the Eighth Amendment of the United States Constitution "because punishing a violation of this provision as a Class A misdemeanor is disproportionate to the offense." See U.S. CONST. amend. VIII; see also TEX. CONST. art. 1, § 13.

After a hearing, the trial court denied appellants' habeas-corpus applications, finding that the ordinance in question is constitutional. The trial court subsequently certified appellants' right of appeal, and these appeals followed.

II. CONSTITUTIONALITY OF THE WACO &QUOTNO TOUCH&QUOT ORDINANCE

In their first issue, appellants contend that the City's "no touch" ordinance violates their First Amendment rights because it is facially overbroad in that it encompasses lawful conduct, including any knowing touching by any dancer, even when not in a state of nudity or performing.

A. Pre-Trial Habeas Relief and Standard of Review

A claim that a statute is unconstitutional on its face may be raised by a pre-trial writ of habeas corpus because the invalidity of the statute would render the charging instrument void. Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001). Although pre-trial habeas can be used to bring a facial challenge to the constitutionality of the statute, it may not be used to advance an "as applied" challenge. Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010).

An appellate court reviews a trial court's decision to grant or deny an application for writ of habeas corpus under an abuse-of-discretion standard. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). In reviewing the trial court's ruling, we view the evidence in the light most favorable to the trial court's ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part on other grounds by Ex parte Lewis,219 S.W.3d 335, 371 (Tex. Crim. App. 2007). The trial judge, as fact finder at the writ hearing, is the exclusive judge of witness credibility. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006). When, as here, the resolution of the ultimate questions turns on application of legal standards, we review the trial court's ruling de novo. Doyle v. State, 317 S.W.3d 471, 475 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd).

B. Facial Challenge and the Overbreadth Doctrine

To prevail on a facial challenge, a party must establish that the statute always operates unconstitutionally in all possible circumstances. State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). A facial challenge to a statute is the most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid. Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992).

Whether a statute is facially constitutional is a question of law that we review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When the constitutionality of a statute is attacked, we begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Id. at 14-15. The burden normally rests upon the person challenging the statute to establish its unconstitutionality. Id. at 15. In the absence of contrary evidence, we will presume that the legislature acted in a constitutionally-sound fashion. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App.2002). Moreover, we must "consider the statute only as it is written, rather than how it operates in practice." State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011).

"According to the First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a 'substantial' amount of protected speech 'judged in relation to the statute's plainly legitimate sweep.'" Ex parte Lo, 424 S.W.3d at 19 (internal citation & footnote omitted). To further clarify, the Court of Criminal Appeals has recently stated the following with respect to the "overbreadth" doctrine:

The First Amendment protects, among other things, the freedom of speech. The First Amendment right to freedom of speech applies to the states by virtue of the Fourteenth Amendment.

. . . .

The overbreadth doctrine is "strong medicine" that is used "sparingly and only as a last resort." The overbreadth of a statute must be "substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep." The statute must prohibit a substantial amount of protected expression, and the danger that the statute will be unconstitutionally applied must be realistic and not based on "fanciful hypotheticals." The person challenging the statute must demonstrate from its text and from actual fact" that a substantial number of instances exist in which the Law cannot be applied constitutionally." The Supreme Court "generally do[es] not apply the 'strong medicine' of overbreadth analysis where the parties fail to describe the instances of arguable overbreadth of the contested law." Moreover, the overbreadth doctrine is concerned with preventing the chilling of protected speech and that concern "attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from 'pure speech' toward conduct." "Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct that is necessarily associated with speech (such as picketing or demonstrating."

State v. Johnson, 475 S.W.3d 860, 864-65 (Tex. Crim. App. 2015) (internal citations & footnotes omitted).

"Topless dancing is protected by the First Amendment." Haddad v. State, 9 S.W.3d 454, 458 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (citing Lindsay v. Papageorgiou, 751 S.W.2d 544, 549 (Tex. App.—Houston [1st Dist.] 1988, writ denied)); see Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981). However, "[t]ime, place, and manner restrictions of protected speech are permissible if they are content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication." Haddad, 9 S.W.3d at 458 (citing Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984)).

C. Discussion

Appellants contend that City of Waco ordinance section 20-17(c) is overbroad because the language purportedly prohibits any knowing or intentional touching by a dancer, even when not in a state of nudity or performing. Appellants further argue that the wording of the statute applies to employees who are fully clothed if they regularly appear nude or semi-nude at a sexually-oriented business. In support of their arguments, appellants rely on a case from the Supreme Court of Kentucky, whereby the Court concluded that a particular no-touch ordinance was unconstitutionally overbroad. See generally Blue Movies, Inc. v. Louisville/Jefferson County Metro Gov't, 317 S.W.3d 23 (Ky.2010). In Blue Movies, the no-touch restriction provided: "It shall be a violation of this chapter for any employee, who regularly appears semi-nude in an adult entertainment establishment, to knowingly or intentionally touch a customer or the clothing of a customer." Id. at 30. In concluding that the ordinance was overbroad, the Kentucky Supreme Court noted:

We do not agree with the Court of Appeals conclusion that all touching between a performer and a customer is not constitutionally protected. As noted above, touching during an erotic performance or while in the state of nudity is not protected expression. We would also agree that sexual touching would not be protected expression. However, we believe that nonsexual, consensual touching, such as a handshake or a pat on the back, as a greeting or show of fellowship, is a social custom and an integral part of our culture.

Id. at 31.

Despite appellants' assertions to the contrary, the ordinance in this case is different than the ordinance in Blue Movies. In Blue Movies, the ordinance specifically pertained to all employees who regularly appear semi-nude without a time specification. Id. at 30. Conversely, the Waco ordinance does not prohibit contact between employees who are clothed, and it does not include the term "regularly."

Furthermore, as noted earlier, City of Waco ordinance section...