Rivera v. State

• Decision Date: 07 July 2011
• Docket Number: 01–10–00618–CR,01–10–00619–CR.,01–10–00617–CR,Nos. 01–10–00616–CR,s. 01–10–00616–CR
• Citation: 363 S.W.3d 660
• Parties: Patricia RIVERA, Appellant, v. The STATE of Texas, Appellee.Telia D. Casel, Appellant, v. The State of Texas, Appellee.Joanna Lynn Walton, Appellant, v. The State of Texas, Appellee.
• Court: Texas Court of Appeals

363 S.W.3d 660

Patricia RIVERA, Appellant,

v.The STATE of Texas, Appellee.Telia D. Casel, Appellant,

v.The State of Texas, Appellee.Joanna Lynn Walton, Appellant,

v.The State of Texas, Appellee.

Nos. 01–10–00616–CR

01–10–00617–CR

01–10–00618–CR

01–10–00619–CR.

Court of Appeals of Texas, Houston (1st Dist.).

July 7, 2011.

R. Trent Gaither, Houston, for Appellant.

Eric Kugler, Asst. Dist. Atty. of Harris County, Houston, for State.

Panel consists of Justices KEYES, HIGLEY, and YATES.^*

OPINION

LAURA CARTER HIGLEY, Justice.

These four appeals arise from orders denying relief in pretrial habeas corpus proceedings in which appellants, Patricia Rivera, Telia D. Casel, and Joanna Lynn Walton, challenge the constitutionality of City of Houston Ordinance No. 97–75, under which each is being prosecuted. See Tex.R.App. P. 31. Appellants present four identical issues on appeal.¹

We affirm the trial court's order denying habeas relief in each appeal.

Background

Appellants, Patricia Rivera, Telia D. Casel, and Joanna Lynn Walton, have been charged with Class A misdemeanor offenses for violating certain provisions of City of Houston Ordinance No. 97–75 (“the Ordinance”).² The Ordinance regulates sexually-oriented businesses and criminalizes certain conduct by persons employed by those establishments.

Here, the State charged Rivera, Casel, and Walton by information with the misdemeanor offense of “intentionally and knowingly” acting as an “entertainer” at Legs Cabaret, “a sexually oriented enterprise, namely, an adult cabaret” without “holding a valid permit ... as required under Section 28–253(a) of the Code of Ordinances of the City of Houston.” ³ Each appellant was also charged with violating the “no touch provision” of the Ordinance, which makes it “unlawful for any entertainer to touch a customer or the clothing of a customer while engaging in entertainment or while exposing any specified anatomical areas or engaging in any specified sexual activities.” ⁴ Specifically, Casel and Walton were charged with “intentionally and knowingly” touching a customer while “engaging in entertainment, namely, a dance, involving the display and exposure of a portion of the human buttock” and “a portion of the human breast immediately below the top of the areola.” Rivera was charged with “intentionally and knowingly” touching a customer while “engaging in entertainment, namely, a dance, involving the display and exposure of the fondling and touching of the female breast.”

Appellants filed individual applications for pretrial writ of habeas corpus in which they challenged the constitutionality of the Ordinance. Each asserted that the Ordinance is unconstitutionally vague and overbroad and argued that it violates the preemption and proportionality protections of the state and federal constitutions. The trial court issued the writs and conducted a hearing on the applications. Following additional briefing by the parties, the trial court denied the requested habeas relief in each cause and filed conclusions of law in support of its rulings.

These appeals followed in which appellants challenge the trial court's denial of the requested habeas relief. In four issues, appellants raise the following constitutional claims: (1) the Ordinance improperly limits expressive conduct protected by the First Amendment because it creates strict liability offenses without requiring a culpable mental state; (2) the Ordinance contains unconstitutionally vague terms; (3) the Ordinance unlawfully expands the City of Houston's authority and violates the doctrine of preemption; and (4) the Ordinance violates the doctrine of proportionality because the sentence is disproportionate to the offense.

Pretrial Habeas Relief and Standard of Review

“The writ of habeas corpus is an extraordinary writ.” Ex parte Weise, 55 S.W.3d 617, 619 (Tex.Crim.App.2001). Neither trial courts nor appellate courts should entertain applications for writ of habeas corpus when the applicant has an adequate remedy by appeal. See id. A claim that a statute is unconstitutional on its face is cognizable by pretrial habeas corpus; if there is no valid statute, the charging instrument is void. See id. at 620.

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 an 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).

Culpable Mental State

In their first issue, appellants assert that the Ordinance is facially unconstitutional because it is overbroad.⁵ We begin by noting that appellants correctly assert that the expressive conduct at issue—namely, nude and exotic dancing—is constitutionally protected conduct under the First and Fourteenth Amendments.⁶ See State v. Howard, 172 S.W.3d 190, 192 (Tex.App.-Dallas 2005, no pet.).

In support of their overbreadth challenge, appellants point out that the Ordinance does not expressly require the State to prove a culpable mental state. Appellants argue that criminalizing expressive conduct without requiring a culpable mental state is a greater restriction than necessary to protect and further any governmental interests that the City of Houston may have in regulating the conduct.⁷

Appellants' contention that the Ordinance is overbroad hinges on their assertion that it does not require the State to prove a culpable mental state when prosecuting violations of the Ordinance. Thus, if the State is required to prove a culpable mental state when prosecuting an Ordinance violation, appellants' overbreadth claim fails.

A. Applicable Law

If the definition of an offense does not prescribe a culpable mental state, one is nevertheless required, unless the definition plainly dispenses with any mental element. Tex. Penal Code Ann. § 6.02(b) (Vernon 2011). If a statute plainly dispenses with a culpable mental state as an element of the offense, it is a strict liability statute. See State v. Walker, 195 S.W.3d 293, 298 (Tex.App.-Tyler 2006, no pet.). A person who commits an act in violation of a strict liability statute may be held criminally liable even though she might be innocent of any criminal intent. See id.

A court must look for a manifest intent to dispense with the requirement of a culpable mental state. Aguirre v. State, 22 S.W.3d 463, 472 (Tex.Crim.App.1999). The omission of a culpable mental state is a clear implication of the legislature's intent to dispense with a mental element in that section. See Lomax v. State, 233 S.W.3d 302, 304 (Tex.Crim.App.2007); Aguirre, 22 S.W.3d at 473. Nonetheless, absent an express intent to dispense with the requirement of a culpable mental state, we must inquire whether such intent is manifested by other features of the statute. Aguirre, 22 S.W.3d at 473. These features include (1) the language of the statute, (2) the nature of the offense as either malum prohibitum or malum in se, (3) the subject of the statute, (4) the legislative history of the statute, (5) the seriousness of harm to the public, (6) the defendant's opportunity to ascertain the true facts, (7) the difficulty in proving a culpable mental state, (8) the number of prosecutions expected, and (9) the severity of the punishment. Id. at 472–76.

B. Analysis

To address appellants' overbreadth challenge, we must first ascertain whether the Ordinance defines strict liability offenses or requires a culpable mental state. Because the Ordinance does not contain an affirmative culpable mental state, we must examine other features of the Ordinance to determine whether such intent is manifested. See id.

First, we review the language of the Ordinance. We presume that culpability is required because the Ordinance is silent regarding a culpable mental state for these offenses. See Aguirre, 22 S.W.3d at 472; Walker, 195 S.W.3d at 297. Moreover, no other provision in the Ordinance prescribes a mental state, an indicator that the omission was not necessarily intended to dispense with a culpable mental state. Cf. Aguirre, 22 S.W.3d at 473 (stating that if any section of statute prescribes a mental state while another section omits a mental state, it is presumed legislature intended to dispense with mental element in section lacking culpable mental state). The first factor weighs in favor of a conclusion that the Ordinance requires a culpable mental state.

Second, we examine the nature of the offense proscribed. See id. at 476. Strict liability is associated with civil violations that incur only a fine and also with criminal offenses that are characterized as malum prohibitum. Aguirre, 22 S.W.3d at 472; see also Howard, 172 S.W.3d at 193. Mala prohibita offenses are acts that are crimes merely because they are prohibited by statute, although they are not necessarily immoral. See Howard, 172 S.W.3d at 193.

In contrast, mala in se offenses are acts that are inherently immoral and require a culpable mental state. See id. The implication is that a strict liability offense must be malum prohibitum. Aguirre, 22 S.W.3d at 473. Courts have recognized that, under the common law, public nudity is classified as mala in se offense. See Howard, 172 S.W.3d at 193 (citing Barnes v. Glen Theatre, Inc., 501 U.S. 560, 568, 111 S.Ct. 2456, 2461, 115 L.Ed.2d 504 (1991); Aguirre, 22 S.W.3d at 477). It follows that the offenses involved here are...