Smith v. State

• Decision Date: 26 May 1989
• Docket Number: No. 05-87-01289-CR,05-87-01289-CR
• Citation: 772 S.W.2d 946
• Parties: Randy Kim SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 946

772 S.W.2d 946

Randy Kim SMITH, Appellant, v. The STATE of Texas, Appellee.

No. 05-87-01289-CR.

Court of Appeals of Texas Dallas.

May 26, 1989.

Braden W. Sparks, Dallas, for appellant.

Kathi Alyce Drew, Dallas, for appellee.

Before HOWELL, LAGARDE and WHITTINGTON, JJ.

LAGARDE, Justice.

Randy Kim Smith appeals his conviction for obstructing an entrance to a place of business to which the public had access. TEX.PENAL CODE ANN. § 42.03 (Vernon 1974). Punishment was assessed at five days' confinement and a $500 fine. In eight points of error, appellant claims that section 42.03 of the Texas Penal Code is unconstitutional and that the evidence is insufficient to support his conviction. We overrule all eight points of error and affirm the conviction.

Because several of appellant's points of error require a detailed analysis of the statement of facts, we set forth the following summary. On May 23, 1987, appellant, his wife, and his two children picketed the Fairmount Center. Appellant carried a picket sign with an "anti-abortion" message on it. Officer Charles Reynolds testified that on that date, he was dispatched to the Fairmount Center. After arriving, but before entering the clinic, he spoke with the picketers:

When I arrived at the Fairmount Center, being as the call involved a disturbance with picketers, I first stopped to talk to the individuals outside the building on the public sidewalk, and explained to them, as is my standard procedure, we have several calls like that throughout the year, that just to make sure that they understood that if they were on the public sidewalk picketing, that was their right; but that they needed to make sure they remained moving or kept the public sidewalk open and clear so that no citizens or clients to the business were inconvenienced and had to leave the public sidewalk to get to the business.

At trial, Officer Reynolds confirmed that it was appellant to whom he spoke, and that appellant indicated that he understood that he was to abide by the law and to keep the public sidewalk clear and free in order to permit access to the public and clients. At the time of this conversation, appellant was standing on the public sidewalk immediately in front of, or in close proximity to, the steps leading to the private walkway to the clinic.

After appellant indicated to Officer Reynolds that he understood what was required of him, Officer Reynolds and Officer Christine Carmell went into the clinic to speak with the individuals inside. While inside, Officer Reynolds observed a Weir's Furniture delivery truck park in front; he saw an individual, later identified as Magnus Ruthenborg, carry a chair from the truck down the public sidewalk to the Fairmount Center. At that time, appellant was on the public sidewalk between the private access and the truck. Officer Reynolds then observed the following:

Mr. Ruthenborg approached [appellant]; and as a result of carrying a medium size [sic] chair, he was unable to pass [appellant], and [appellant] refused to yield on the public sidewalk, causing Mr. Ruthenborg an inconvenience and a safety hazard for that matter by having to step over a brick about [sic] two foot tall wall while carrying a chair attempting to do his job and deliver the chair to the Fairmount Center, which apparently had ordered the furniture.

....

At the point where Mr. Ruthenborg and [appellant] came together, they were on a public sidewalk, which the general public has access to, and Mr. Ruthenborg was attempting to get to the two or three steps leading to the private sidewalk, private entranceway into the Fairmount Center; and as a result, he was unable to reach that point because of [appellant's] actions.

Officer Reynolds stated that appellant obstructed the entrance and Ruthenborg breached the retaining wall.

After observing this, Officer Reynolds went outside to speak with appellant who, by this time, had moved back to the stairs leading to the private walkway to the clinic. Officer Reynolds testified:

I explained to him that it is apparent that the Fairmount Center has ordered some furniture, and that Mr. Ruthenborg was going to be making more trips with the furniture, and it was going to be necessary for him to alter his picketing actions somewhat to allow Mr. Ruthenborg free access to the private entrance from the public sidewalk.

Appellant responded that he had a right to be there and that he did not have to move if he did not want to. Officer Reynolds then informed appellant as follows:

After he explained to me what his rights were, I then further gave him a second warning and advised [appellant] that it was a violation of the Texas State Penal Code to block or obstruct a private passageway or sidewalk in any manner where it would be an inconvenience to the general public; and as a result of their loading and unloading of the furniture, he was going to be blocking the sidewalk, and he needed to move a little bit north so that they had access to the building.

Appellant once again informed Officer Reynolds that he did not have to move. Officer Reynolds reiterated his warning: "I advised him that he had been warned twice and been told that it was a violation of Texas State Penal Code, and he was still going to refuse to give way to the public access, [and] I placed him under arrest for obstructing a public sidewalk." Officer Reynolds stated that at the time of his arrest, appellant was not blocking anyone from entering the clinic.

Officer Carmell corroborated Officer Reynolds's testimony that appellant was instructed to leave the sidewalk area directly in front of the walkway leading to the Fairmount Center, that Officer Reynolds informed appellant that he was obstructing the walkway leading to the clinic in violation of the Texas Penal Code, and that appellant refused to move.

Magnus Ruthenborg testified that, as a truck driver/delivery person for Weir's Furniture, he was delivering furniture to the Fairmount Center at about 10:30 a.m. on May 23, 1987. He first came in contact with appellant when he initially obtained the chairs from the back of the truck, got out of the truck, went to take the chairs in, and heard appellant's verbal "gestures," such as "I'm a baby killer, baby murderer." Ruthenborg initially ignored appellant and went around him. Ruthenborg stated:

I am not a very patient person with regard to verbal abuse; and after a while, it began to get to me, and I lowered myself to his level and began talking back to him, you know, and I told him to "get the fuck away from me." And I asked him to move several times, and every time I asked him to move, he just ignored me like I wasn't even there, he kept talking to me, [and he] stepped in front of me. I would try to go around him and he would step back in front of me again. My partner wouldn't say anything to him--

(Emphasis added.) Ruthenborg further testified that he had six occasions, three trips in and three out, to walk by appellant and that on each of the three trips in, he had a chair in his hands.

Ruthenborg testified that on the second trip from the delivery truck to the clinic:

I asked him to move several times and he would move and he stepped over like this, and when I [sic] went over to step in front of me, and I stepped back like this and he stepped in front of me again, and I told him to get the fuck out of my way, that is what I told him, and called him a freak and said, "Leave me alone." And he just continued to talk. And so, I didn't really listen too much to what he said.

(Emphasis added.) Ruthenborg stated that in order to avoid further confrontations he "went over the brick wall a little step, it is probably two feet ... instead of coming this way to deal with [appellant], [Ruthenborg] cut across and [appellant] was talking the whole time." On subsequent trips to and from the clinic, Ruthenborg chose to go over the brick wall and across the lawn. Ruthenborg also testified that although appellant did not force him to go over the brick wall and across the lawn, he would have preferred to walk up the walkway to the clinic.

Both defense witnesses claimed that appellant did not block the passageway to the clinic. Appellant denied that Ruthenborg ever asked him to move. Appellant's wife stated that she noticed that Ruthenborg was uncomfortable in dealing with appellant and testified that she believed that Ruthenborg cut across the lawn to avoid appellant.

We must first consider the State's contention that appellant failed to properly preserve his points of error because he raises them for the first time on appeal. Citing Ellis v. State, 722 S.W.2d 192, 198 (Tex.App.--Dallas 1986, no pet.), the State maintains that this Court should not consider appellant's first two points of error because appellant's trial counsel failed to raise these points below. We agree with the State that generally appellate courts will not consider any error that counsel could have called, but did not call, to the attention of the trial court at a time when such error could have been avoided or corrected. Rogers v. State, 640 S.W.2d 248 264 (Tex.Crim.App.1982) (opinion on motion for rehearing). However, since Ellis, the Court of Criminal Appeals has stated that trial counsel's failure to object to the constitutionality of a statute upon which a defendant's conviction was based does not waive the right to raise that point for the first time on appeal. Rabb v. State, 730 S.W.2d 751, 752 (Tex.Crim.App.1987). Thus, we conclude that appellant's first point of error should be considered.

In his first point of error, appellant contends that section 42.03, ¹ both facially and as applied, constitutes an impermissible restraint on his freedom. Specifically, appellant argues that he was exercising his right to free speech and to picket an abortion clinic and, therefore, the State's proscription of his activity must be supported by such substantial and compelling interest to justify infringement...