Hudson v. State

• Decision Date: 20 May 1987
• Docket Number: No. 05-86-00662-CR,05-86-00662-CR
• Citation: 737 S.W.2d 838
• Parties: Carl J. HUDSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 838

737 S.W.2d 838

Carl J. HUDSON, Appellant, v. The STATE of Texas, Appellee.

No. 05-86-00662-CR.

Court of Appeals of Texas,

Dallas.

May 20, 1987.

R.J. Hagood, Dennison, for appellant.

John H. Hamras, Sherman, for appellee.

Before HOWELL, McCLUNG and McCRAW, JJ.

McCLUNG, Justice.

Appellant was convicted of solicitation of a child, given a 365-day sentence, and fined $2,000. He asserts that the evidence was insufficient. We agree. Accordingly, we reverse the judgment of the trial court and render a judgment of acquittal.

Complainant testified that she was eleven years old at the time of the alleged offense. Accompanied by her older brother and a seventeen-year-old female friend of the family, complainant arrived at the location of a traveling carnival at about 10:00 p.m. She noticed appellant at different times and he appeared to be following her. Complainant's testimony suggests that she was watching the seventeen-year-old play a game at one of the booths when she was approached by appellant. At this time, complainant's brother was at a booth in another part of the carnival.

The exact positions of complainant and the seventeen-year-old in relation to the booth and each other at the time of the alleged incident are not clear from the record. However, the seventeen-year-old testified that complainant was three to four feet away from her when the seventeen-year-old was playing at the booth. Complainant testified that while the seventeen-year-old was playing, appellant "grabbed me by the arm and pulled me and he said he would give me $20.00 for my [genitalia] and I yanked my arm away from him." Complainant then told the seventeen-year-old and the person attending the booth what had happened and what appellant had said. Complainant and the seventeen-year-old looked for her brother and told him. The record suggests that her brother made some attempt to locate appellant but did not succeed. Complainant also reported the incident to her mother, although it is not clear when she did so.

Complainant drew a diagram of the place where this incident allegedly occurred. The diagram depicts two booths, separated by an open walkway. In back of the booths were two trailers. Later testimony indicated that the trailers were eighteen-wheelers, probably used to haul carnival equipment. Complainant did not estimate dimensions, but she did testify that the booths were not close together. Other testimony estimated that the booths were three to four feet apart and that the trailers were three to four feet behind the booths. Complainant testified that she thought that appellant was trying to get her to the area between the booths, three or four steps away.

Complainant, the seventeen-year-old, and complainant's mother returned to the carnival the next day. Testimony indicated that appellant was there and was watching complainant and other girls. The seventeen-year-old called the police when she saw appellant. It is not clear when appellant was arrested and charged with solicitation of a child, although the information is dated May 27, 1986, five days after the alleged incident.

To find appellant guilty, the charge required the jury to find, among other things, that appellant invited complainant "to enter an enclosed area " (emphasis added). We hold that the evidence is insufficient that appellant invited complainant to enter an enclosed area. Such conduct is proscribed by the Penal Code which provides:

§ 25.06. Solicitation of a Child

(a) A person commits an offense if he entices, persuades, or invites a child younger than 14 years to enter a vehicle, building, structure, or enclosed area....

The Penal Code does not define "enclosed area." Therefore, we may look to common usage and legislative intent to determine what conduct the statute proscribes. Howard v. State, 690 S.W.2d 252, 254 (Tex.Crim.App.1985).

An aid to ascertaining legislative intent is the rule of ejusdem generis. Texas v. United States, 292 U.S. 522, 534, 54 S.Ct. 819, 825, 78 L.Ed. 1402 (1934). The rule here would limit "enclosed area" to objects in the same general class as vehicle, building, and structure.

The history of this Penal Code section supports a narrow interpretation of "enclosed area." As originally passed by the Senate, section 25 made it unlawful to invite a minor "to enter any vehicle, room, house, office or other place " for immoral purposes (emphasis added). ¹ For whatever reason, this was changed in the House to the present, more restrictive language finally approved by the legislature.

A narrow interpretation of "enclosed area" is also supported by the construction of the statute. The legislature used the verb "enter" rather than "go to" or something more general. "Enter" implies the penetration of some closure rather than just movement toward some place and is, therefore, more consistent with a narrow meaning of "enclosed area."

The common usage of "enclosed area" does not support a construction which would encompass an open walkway. A wrecking yard surrounded by a fence was held to be an enclosure in State v. Cabrera, 114 Ariz. 233, 560 P.2d 417, 419 (1977). An automobile trunk has been held to be an enclosure because it encompasses, surrounds, shuts or fences in. People v. McDonald, 26 Ill.2d 325, 186 N.E.2d 303, 306 (1962). On the other hand, a structure which had three open portals was held not to be enclosed for purposes of the burglary statute. Day v. State, 534 S.W.2d 681, 684-85 (Tex.Crim.App.1976).

The plain meaning of "enclosed area" does not comprehend an open walkway. Although enclose is a general word, an area that is enclosed is one that is fenced off, enveloped, confined, or surrounded. See Webster's Third New International Dictionary (1981). To hold that a walkway is an "enclosed area" would do violence to the plain meaning of the statute. We would, in effect, be rewriting the statute. This we decline to do.

We hold that the evidence is insufficient to support appellant's conviction under Penal Code section 25.06. Consequently, the judgment of the trial court is reversed and a judgment of acquittal is rendered.

McCRAW, J., files a dissenting opinion.

McCRAW, Justice, dissenting.

I respectfully dissent. I would hold that the evidence is sufficient to support the jury's finding that a dark, four foot wide walkway blocked off by a large trailer at a depth of four feet is an "enclosed area" as contemplated by section 25.06 of the Texas Penal Code. In holding that a private area, encompassing no more than sixteen square feet and enclosed on three sides, where a child is vulnerable to sexual contact, is not an "enclosed area," the majority misapplies basic rules of statutory construction. Further, the majority fails to apply the correct standard of appellate review when analyzing sufficiency of the evidence.

The complainant and other witnesses testified that appellant approached the complainant while she stood three or four steps from "an enclosed area away from people," between "little buildings." The area was only three or four feet wide. An eighteen-wheel trailer was parked three or four feet behind the booths, partially blocking the walkway. The complainant testified that appellant intended to drag her into this nine to sixteen square foot area.

The booths were near a noisy ride called "the Himalayas" on which riders were yelling and screaming. It was late at night, and consequently, dark, and the complainant testified that the appellant could have done "nasty things" to her without being seen. With all the noise, no one would have heard her if she had screamed. The seventeen-year-old friend who accompanied the complainant to the carnival testified as follows:

Prosecutor: Do you understand what the term "private" means?

Witness: Yes, sir.

Prosecutor: Did this appear to be a private area to you?

Witness: Yes, sir.

Prosecutor: This area between the booths?

Witness: Yes, sir.

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Prosecutor: Would it have been an enclosed enough area that some nasty things could have occurred without people being able to see it?

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Witness: Yes, sir.

Complainant's mother also testified that the nine to sixteen square foot area bordered by the booths and the trailer was sufficiently private and enclosed that a person could be excluded from view and from the general traffic of people through the carnival.

I would hold that this evidence and the record as a whole, when viewed in the light most favorable to the verdict, is sufficient to support appellant's conviction for inviting a child to enter an "enclosed area," as contemplated by the statute.

The cardinal rule of statutory interpretation is to ascertain legislative intent in enacting the statute. Faulk v. State, 608 S.W.2d 625, 631 (Tex.Crim.App.1980); Lucario v. State, 677 S.W.2d 693, 699-700 (Tex.App.--Houston [1st Dist.] 1984, no writ); Diggles v. State, 641 S.W.2d 667, 669 (Tex.App.--Dallas 1982, pet. ref'd). Even when employing the rule of 'ejusdem generis', the touchstone in interpreting a statute is always the legislature's purpose: "The rule of 'ejusdem generis' is applied as an aid in ascertaining the intention of the legislature, not to subvert it when ascertained." Texas v. United States, 292 U.S. 522, 534, 54 S.Ct. 819, 825, 78 L.Ed. 1402 (1934) (emphasis added). Under that doctrine, general words following an enumeration of particular or specific items should be construed to fall into the same general class as those items specifically named. See Carbide International v. State, 695 S.W.2d 653, 658 (Tex.App.--Austin 1985, no writ) (construing civil penalty statute).

The gravamen of the offense of solicitation of a child is to invite, entice or persuade a child to enter a place where he or she is vulnerable to an attempt by an adult to engage in sexual intercourse, deviate sexual intercourse, or sexual contact. I would conclude that by including the phrase "enclosed area" the legislature informs us that the situs of the offense...