Haye v. State, 62882

• Decision Date: 16 June 1982
• Docket Number: No. 62882,No. 1,62882,1
• Citation: 634 S.W.2d 313
• Parties: Debra Kay HAYE, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 313

634 S.W.2d 313

Debra Kay HAYE, Appellant, v. The STATE of Texas, Appellee.

No. 62882.

Court of Criminal Appeals of Texas, Panel No. 1.

June 16, 1982.

Kenneth D. Carden, Dallas, for appellant.

Henry Wade, Dist. Atty., Karen Chilton Beverly, and Earl Cross, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ROBERTS, TOM G. DAVIS and W. C. DAVIS, JJ.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for obstructing a highway or other passageway, V.T.C.A. Penal Code, Sec. 42.03. ¹ After finding appellant guilty the court assessed punishment at 180 days in jail. The appellant challenges the sufficiency of the evidence to support the conviction.

On April 13, 1978, Officer M. K. Swofford of the Dallas Police Department observed appellant standing in the middle of the sidewalk in the 3100 block of Knight Street. The sidewalk is one of normal width. Because of a leak in the vicinity, each side of the sidewalk contained some mud. Portions of the ground on each side of the sidewalk were either wet or muddy, the "year around."

An elderly man was walking westbound on the sidewalk. He came to where the appellant was standing, stopped, walked into the mud to get around her and continued westbound on the sidewalk.

Swofford, in uniform and seated in a marked police vehicle, informed appellant that she was blocking the sidewalk in violation of state law and warned her not to do it again. Appellant walked into a barbershop and returned five minutes later to reoccupy "the same spot where she had been before" on the sidewalk.

Swofford, utilizing the public address system in the patrol car, repeated his warning. Appellant approached the police vehicle and told Swofford that she had called her lawyer and that he had told her she "could stand in the middle of any sidewalk, anywhere, at any time and there's nothing you can do to stop me." In response to the officer's question as to whether she intended to "continue to stand in the middle of the sidewalk," appellant answered in the affirmative. Following her response, Swofford arrested appellant. Further testimony of the officer regarding obstruction of the sidewalk by appellant reflected that appellant "blocked the sidewalk and caused the pedestrian to step into the median."

Sec. 42.03(b), supra, defines "obstruct" to mean "render impassable or to render passage unreasonably inconvenient or hazardous." In Sherman v. State, 626 S.W.2d 520 this Court in reviewing a mass picketing conviction under Art. 5154d, Sec. 1(2), V.A.C.S. gave the term "obstruction" the same definition as found in Sec. 42.03(b), supra. We held in Sherman that evidence of the defendant walking slowly in front of the entrance of the plant being picketed, at most "showed that appellant caused a momentary hesitation of a vehicle entering the struck premises" and did not constitute an obstruction to free ingress or egress.

In Fierro v. State, 135 Tex.Cr.R. 483, 121 S.W.2d 597 a defendant shown to have been moving, not standing or sitting, on a sidewalk while picketing, was not guilty of violating a city ordinance declaring it unlawful to stand or sit on a sidewalk so as to impede pedestrians' progress.

Unlike Sherman and Fierro, the appellant herein was shown to have been causing an obstruction by standing on a sidewalk rather than moving on a passageway. Another distinction between Sherman and Fierro and the instant case is discernible. In light of appellant's apparent challenge to the constitutionality of the statute under this ground of error we believe the distinction is important. The Court in those two cases involving violations under picketing statutes was confronted with balancing the defendants' rights under the First Amendment with the right of the public to have access to the struck premises. This is not to suggest that appellant herein was not making some type of expression by standing on the sidewalk, but it clearly was not as apparent as that of the defendants in Sherman and Fierro. As was pointed out in Sherman the Legislature in Art. 5154d, supra was trying to accommodate private and public interests. The private interests were the rights of freedom of speech and assembly as expressed by picketing activity. The public interests were the safety and general welfare of the people and the right to engage in their daily pursuits without unlawful interference from others. In Sherman, where, as hereinbefore noted, the definition of obstruction set forth in Sec. 42.03, supra was utilized in determining the meaning of obstruction in Art. 5154d, supra, we found Art. 5154d, supra to meet constitutional muster by protecting the rights of the public in having access to premises that were under strike without violating the rights of the individual under the First Amendment.

The State has the right to regulate the use of city streets and other facilities to assure the safety and convenience of people in their use. Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471. We find that Sec. 42.03, supra protects the right of the public to the reasonably convenient use of sidewalks and other passageways without an encroachment upon the First Amendment rights of the individual. Sherman v. State, supra. We find Sec. 42.03, supra to not be violative of the First Amendment to the United States Constitution.

In assessing the sufficiency of the evidence to support the conviction, we are mindful that appellant was not charged with disobeying a reasonable request to move by the officer...