Garay v. State

• Citation: 954 S.W.2d 59
• Decision Date: 02 July 1997
• Docket Number: No. 04-96-00188-CR,04-96-00188-CR
• Parties: Richard C. GARAY, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

Page 59

954 S.W.2d 59

Richard C. GARAY, Appellant, v. The STATE of Texas, Appellee.

No. 04-96-00188-CR.

Court of Appeals of Texas,

San Antonio.

July 2, 1997.

Rehearing Overruled Sept. 8, 1997.

Jeffrey J. Pokorak, Teresa A. Oxford, San Antonio, for Appellant.

Angela Moore, Assistant Criminal District Attorney, San Antonio, for Appellee.

Before HARDBERGER, C.J., and LOPEZ and ANGELINI, JJ.

OPINION

LOPEZ, Justice.

This appeal arises from a conviction on two counts of sexual performance. The state charged appellant, Richard Garay, with two counts of sexual performance: Count I, Sexual Performance by a Child by Inducement; and Count II, Sexual Performance by a Child by Producing. A jury found appellant guilty of both counts and the court imposed punishment of twenty years imprisonment on Count I and ten years imprisonment on Count II, to run concurrently. Appellant brings sixteen points of error alleging that: (1) section 43.25 of the Texas Penal Code is void for vagueness under the United States and Texas Constitutions; (2) that the trial court erred in denying appellant's motion to set aside the indictment because it constitutes double jeopardy and fails to state a manner and means; (3) the trial court erred in instructing the jury that count I and count II are separate offenses in violation of appellant's right against double jeopardy; (4) the trial court erred in denying appellant's motion for new trial because counts I and II are the same offense, or in the alternative, they are lesser included offenses; (5) the evidence is legally and factually insufficient to support count I and factually insufficient to support count II; (6) appellant's statutory affirmative defense improperly shifts the burden of proof to the defendant; (7) the court erred in denying the motion to set aside the indictment because of the destruction of exculpatory evidence; (8) the trial court erred because irrelevant and prejudicial evidence was published to the jury; (9) the trial court erred in allowing the prosecution to lead a witness with highly prejudicial and inflammatory questions; (10) the trial court erred in allowing the claimant to be brought into the courtroom; and (11) the trial court erred in allowing the jury to consider letters during the punishment phase of trial. We summarily overrule appellant's points of error and affirm the judgment of the trial court.

FACTS

On April 27, 1994, Mary Garay, appellant's wife, left two rolls of film at a Walmart department store for developing. Pursuant to a store policy, the clerk developing the film contacted her supervisor because of the nature and content of particular negatives. On April 28, the store manager contacted Walmart's legal department and the San Antonio Police Department (SAPD). Detective Allan Michael Hickey arrived at Walmart and took possession of the negatives in question. Walmart developed the remaining photographs and included a note to Mr. Garay explaining the store policy against developing questionable photographs. The negatives confiscated by the police included pictures of the complainant, a five year old girl, in an automobile naked from the waist down. One photo includes the complainant spreading her legs and a close-up of complainant's genitalia.

After picking up the developed photographs on April 28 and receiving Walmart's notice, appellant notified the authorities of possible child abuse involving the complainant. Detective Hickey and Detective Thomas Fulcher investigated the child abuse allegations. Appellant expressed his concern for complainant at her residence because of numerous undocumented alien men living at the same residence. The Department of Human Services dispatched officers to the residence finding three unattended children, including complainant, and nine undocumented alien men. The police temporarily detained and deported the nine men.

On May 6, 1994, Detectives Hickey and Fulcher obtained an arrest warrant for appellant. Officers searched appellant's home and found no additional evidence associated with child pornography. In appellant's statement to the police, appellant stated that he took the pictures of the complainant to document the alleged physical abuse. The State charged appellant with two counts: Sexual Performance by a Child by Inducement and Sexual Performance by a Child by Producing.

ARGUMENT and AUTHORITIES

In points of error one and two, appellant challenges the constitutionality of section 43.25(a)(2) of the Texas Penal Code. When reviewing an attack upon the constitutionality of a statute, the appellate court begins with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily in enacting the statute. Ex parte Anderson, 902 S.W.2d 695, 698 (Tex.App.--Austin, 1995, pet.ref'd). The burden rests on the individual challenging the statute to establish its unconstitutionality. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978). This court must uphold the statute if a reasonable construction can be ascertained which would render the statute constitutional and carry out the legislative intent. Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979).

Appellant contends that the statute's use of the language "lewd exhibition of the genitals" is unconstitutionally vague. Section 43.25(a)(2) states:

"Sexual conduct" means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.

TEX. PENAL CODE ANN. § 43.25(a)(2) (Vernon 1994). When examining a criminal statute for vagueness, the reviewing court must make a two-pronged inquiry: (1) whether an ordinary, law-abiding person receives sufficient information from the statute that his conduct risks violating the criminal law; and (2) whether the statute provides sufficient notice to law enforcement personnel to prevent arbitrary or discriminatory enforcement. Anderson, 902 S.W.2d at 699. Appellant argues that persons of ordinary intelligence would differ as to the application of the term "lewd" and its use as the sole description of conduct is unconstitutionally vague. Courtemanche v. State, 507 S.W.2d 545, 546 (Tex.Crim.App.1974).

Appellant's reliance on Courtemanche is misplaced. The court held that "lewd" is not always vague in application. Id. In Courtemanche, "lewd" and "vulgar" were the only descriptive terms in the statute: "permitting entertainment, performances, shows or acts that are lewd or vulgar." Id. The court distinguished the statute in question from other statutes where "lewd" was not vague. In the context of sodomy statutes, the court held that "lewd" is not vague when used as an integral part of a statute describing the conduct prohibited and further conditioning the prohibition on the additional element of a lewd or lascivious intent. Id. Reviewing another statute that prohibited the use of one's "sexual parts in a lewd or lascivious manner by any minor," the court held that in the context of acts inherent in the statute, whether a particular act is done in a lewd manner is not a question beset with vagueness. Id. at 547 citing Slusser v. State, 155 Tex.Crim. 160, 232 S.W.2d 727, 730 (1949). "The statement of the primary act, to-wit, the use of one's sexual parts, tends to limit the understanding and reduce the inherent vagueness of 'lewd' standing alone." Id.

In the present case, the legislature used "lewd" as an integral element describing the conduct prohibited under "sexual conduct." TEX. PENAL CODE ANN. § 43.25(a)(2) (Vernon 1994). The primary act consists of, "any performance or part thereof that includes sexual conduct by a child younger than 18 years of age." I d. at § 43.25(a)(1). We find the statement of the primary act in this statute reduces any inherent vagueness of the word "lewd". Therefore, the statute gives an ordinary law-abiding person sufficient information that his conduct risks violating the criminal law and the statute also gives law enforcement officials notice to prevent arbitrary enforcement. We overrule appellant's first and second points of error.

In points of error three and four, appellant contends that the trial court erred in denying appellant's motion to set aside the indictment because counts I and II constitute double jeopardy in violation of the U.S. and Texas constitutions. In the alternative, appellant argues that the trial court erred in not instructing the jury that count I constitutes a lesser included offense of count II. Appellant has waived these points of error.

A defect of form or substance in an indictment is waived unless the defendant objects before trial through a motion to quash. TEX.CODE CRIM. PROC. ANN. art. 1.14(b) (Vernon Supp.1997). Appellant moved to set aside the indictment solely on the ground of inadequate manner and means. The record reveals that appellant did not preserve the issues of double jeopardy or lesser included offenses and cannot bring them for the first time on appeal. TEX.R.APP. P. 52(a). Even if appellant properly preserved these points of error, we affirm the judgment of the trial court.

A. Double Jeopardy

Appellant only preserves the federal constitutional claim. Appellant waives the state constitutional claim by failing to distinguish the protection guaranteed under the Texas constitution from that guaranteed by the federal constitution. See Johnson v. State, 853 S.W.2d 527, 533 (Tex.Crim.App.1992) cert. denied, 510 U.S. 852, 114 S.Ct. 154, 126 L.Ed.2d 115 (1993); Narvaiz v. State, 840 S.W.2d 415, 432 (Tex.Crim.App.1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993). Appellant's state and federal constitutional arguments are identical, with the exception of citations. Arguing the state constitutional claim, appellant merely duplicated the federal argument and supplied Texas citations. Although the arguments are printed separately, copying the federal argument verbatim does not satisfy the...