Reed v. State

• Decision Date: 28 June 1990
• Docket Number: Nos. C14-89-00828-C,A14-89-00829-CR and B14-89-00830-CR,s. C14-89-00828-C
• Parties: Charles Dale REED, James Clifford Horan, Michael Scott Amerson, Appellants, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 806

794 S.W.2d 806

Charles Dale REED, James Clifford Horan, Michael Scott Amerson, Appellants, v. The STATE of Texas, Appellee.

Nos. C14-89-00828-CR, A14-89-00829-CR and B14-89-00830-CR.

Court of Appeals of Texas Houston (14th Dist.).

June 28, 1990.

Richard W. Schmude, Houston, for appellants.

Roger A. Haseman, Houston, for appellee.

Before PAUL PRESSLER, CANNON and ELLIS, JJ.

OPINION

PAUL PRESSLER, Justice.

Appellants were charged by information with the misdemeanor offense of obstructing a passageway. TEX.PENAL CODE ANN. § 42.03. Each appellant was found guilty by a jury. Punishment was assessed by the jury at ninety days in jail and a $1000 fine for appellant Reed. The other appellants received 180 days in jail and a $1000 fine. We affirm.

Appellant's convictions arise out of events surrounding an abortion protest in October 1988. The appellants and several other protestors had chained or otherwise secured themselves to barrels and other fixed objects in front of a Houston clinic. The barrels had concrete in them and were positioned in such a way that no vehicles could get into or out of the clinic. After a request by the security guard failed to convince the protestors to move, the Houston Police were called. The demonstrators were told to move from the driveway, but the appellants as well as several others remained. A police officer videotaped the demonstration including the reading to each of the appellants of the violation with which they would be charged. Each of the demonstrators were given an opportunity to move before being arrested.

Before us are individuals charged with a crime. Most persons so charged have been engaged in activity motivated by selfish or base motives. Such is not the case here. Before this court are individuals who have been motivated by the highest principles. Their concern is assisting other human beings and preserving what they conscientiously believe to be human life. The question before us, however, is not their motivation or the correctness of their convictions. This court must determine solely the question of whether these individuals, however well intentioned, have actually broken a law of the state of Texas in effect at the time of the occurrence in question. No individual, whether he be citizen, lawyer, or judge, is above the law. We must abide by and follow the law as it is and not as we wish it were.

In their first four points of error, the appellants claim that the section of the Texas Penal Code upon which their convictions are based is unconstitutionally overbroad and void for vagueness in violation of the United States and Texas Constitutions. Pre-trial motions to quash the informations were filed on this basis, and after a hearing, the trial court denied the motions. In reviewing the constitutionality of a statute, there is a presumption that the statute is valid and that the Legislature has not acted unreasonably or arbitrarily in enacting the law. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978).

The Court of Criminal Appeals has held that 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. Haye v. State, 634 S.W.2d 313, 315 (Tex.Crim.App.1982), citing inter alia, Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). The statute "protects the right of the public to the reasonably convenient use of sidewalks and other passageways without encroachment upon the First Amendment rights of the individual." Id. Further, the Legislature has provided protection of first amendment expression through the enactment of TEX.PENAL CODE ANN. § 42.04. This statute provides, in pertinent part, as follows:

(a) If conduct that would otherwise violate ... Section 42.03 of this code consists of speech or other communication, ... or of gathering with others to picket or otherwise express in a nonviolent manner a position on social, economic, political or religious questions, the actor must be ordered to move, disperse, or otherwise remedy the violation prior to his arrest if he has not yet intentionally harmed the interests of others which those sections seek to protect.

(b) The order required by this section may be given by a peace officer, a fireman, a person with authority to control the use of the premises, or any person directly affected by the violation.

(c) It is a defense to prosecution under Section 42.01(a)(5) or 42.03 of this code:

(1) that in circumstances in which this section requires an order no order was given;

(2) that an order, if given, was manifestly unreasonable in scope; or

(3) that an order, if given, was promptly obeyed.

"[A] statute is [only] considered impermissibly overbroad if, in addition to proscribing activities which may constitutionally be forbidden, it sweeps within its coverage speech or conduct which is protected by the first amendment." Morehead v. State, 746 S.W.2d 830, 833-34 (Tex.App.--Dallas 1988, pet. granted). The statute complained of regulates conduct, and not speech, and is not constitutionally overbroad. Smith v. State, 772 S.W.2d 946, 949 (Tex.App.--Dallas 1989, pet. ref'd).

The appellants also complain that Section 42.03 is void for vagueness. In order for a penal statute to be unconstitutionally vague, "it must either forbid or require the doing of an act in terms so vague that people of common intelligence must necessarily guess at its meaning and differ as to its application, thereby violating the fair notice requirement of due process of law." Morehead, supra at 836-37. All of the complained of terms have common meanings, and "words defined in dictionaries and with meanings so well known as to be understood by a person of ordinary intelligence are not to be considered vague and indefinite." Id. Further, appellants have failed to cite any authority for their proposition that the words are vague. The failure to cite authority specifically in support of their argument presents nothing for review. MacDonald v. State, 761 S.W.2d 56, 60 (Tex.App.--Houston [14th Dist.] 1988, pet. ref'd). Points of error one through four are overruled.

In points of error five through ten, the appellants contend that the trial court erred in admitting into evidence, over objection, the videotape of the offenses taken by the Houston Police. Appellants claim that the trial court erred in overruling their objection based upon the lack of a proper predicate for the video's admission. The seven-pronged predicate for the admission of sound recordings also applies to videotapes. Edwards v. State, 551 S.W.2d 731 (Tex.Crim.App.1977). Each of the required elements were established either by direct proof or could be inferred from the testimony as allowed by Edwards. See also Roy v. State, 608 S.W.2d 645, 649 (Tex.Crim.App.1980). Prior to the jury's viewing the tape, the court gave the following limiting instruction at the appellants' request:

THE COURT: Ladies and gentlemen of the jury, I'm going to give you an instruction before you watch the video. I ask you not to consider the conversations of the other people that you see in the video--mainly, the other protestors--in passing on the guilt or innocence of these three defendants. I want you to keep that in mind.

Finally, the appellants' objection to a lack of predicate is a general objection and does not preserve error on appeal. Beck v. State, 719 S.W.2d 205, 214 (Tex.Crim.App.1986).

Appellants further claim that the court erred in admitting the tape over the objections of relevancy and hearsay. The only objection made at the time the tape was offered into evidence was "lack of predicate", but prior to the tape's being offered, appellants had objected to relevancy and hearsay. The trial court never ruled on those objections. Absent an adverse ruling appearing in the record, no error is preserved for appeal. Darty v. State, 709 S.W.2d 652, 655 (Tex.Crim.App.1986). Furthermore, appellants are complaining only about statements made by the police. Where a police officer's testimony is admitted, not for the truth, but to establish the course of events and circumstances leading to the arrest of appellants, it is not hearsay. Stewart v. State, 640 S.W.2d 643, 645 (Tex.App.--Houston [14th Dist.] 1982, no pet.). In their ninth point of error, appellants contend that the admission of the video violated their rights to confrontation and cross-examination of the police officer depicted on the tape since that officer did not testify. Appellants did not raise this objection until after the State had rested its case. The failure to object in a timely and specific manner waives error as to the admission of evidence, even though the error may concern a constitutional right of the appellants. Little v. State, 758 S.W.2d 551, 563 (Tex.Crim.App.1988), cert. denied, 488 U.S. 934, 109 S.Ct. 328, 102 L.Ed.2d 346 (1988). Finally, appellants complain that the jury should not have been allowed to view the tape during deliberations. The jury had requested the tape as well as other exhibits, and it would have been error for the trial court not to comply with that request. See TEX.CODE CRIM.PROC.ANN. art. 36.25; Lopez v. State, 628 S.W.2d 82, 85 (Tex.Crim.App.1982). Points of error five through ten are overruled.

In points of error eleven and twelve, the appellants allege that the court erred in overruling their motions for a directed verdict. After the State had rested, appellants moved for a directed verdict based upon the lack of confrontation of a witness (the police officer in the video) and alleged that the State had failed to prove that the order to move from the clinic was issued to prevent an obstruction. The trial court denied the motions, and the appellants then went forward with their defense. After the State rests, where the defense moves for a directed verdict which is denied and then puts forth a defense, appellants cannot challenge the court's denial of the motion on appeal....