Sprayberry v. State, 02-10-00315-CR

• Decision Date: 26 April 2012
• Docket Number: NO. 02-10-00315-CR,02-10-00315-CR
• Parties: JEFFREY WILLARD SPRAYBERRY APPELLANT v. THE STATE OF TEXAS STATE
• Court: Texas Court of Appeals

JEFFREY WILLARD SPRAYBERRY APPELLANT

v.THE STATE OF TEXAS STATE

NO. 02-10-00315-CR

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

DELIVERED: April 26, 2012

FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY

MEMORANDUM OPINION¹

I. Introduction

A jury convicted Appellant Jeffrey Willard Sprayberry of the Class B misdemeanor offense of graffiti. In three points, Appellant asserts that the graffiti statute is unconstitutional as applied to him, the evidence is insufficient to support his conviction, and the trial court erred by failing to serve him with a copy of either the complaint or the information. We affirm.

II. Factual and Procedural Background

Appellant pleaded not guilty to charges that he intentionally or knowingly "ma[d]e markings" by spray painting with aerosol paint the word "crook" on a sign owned by Larry Marrs without his effective consent, causing a loss of less than $500. At trial, the State presented evidence that in the weeks before the offense, Marrs and James Blyn placed political signs around the city that were subsequently defaced with spray paint.² Blyn testified that in an attempt to catch the culprit, he, his friend Josh Thatcher, and Marrs conducted a stakeout. On May 6, 2009, Marrs and Blyn placed new signs out in the morning and went back out at approximately 10:30 that evening to monitor the signs. Blyn and Thatcher parked in a residential neighborhood near some of the signs. At approximately 1:30 a.m., a tall, heavyset individual wearing a backpack walked by, and he fit the description Blyn and Thatcher had received from someone who had witnessed earlier vandalism of some of the signs. Both Blyn and Thatcher described the individual (later identified as Appellant) as wearing blue jean shorts, a blue T-shirt, white socks, and dark-colored tennis shoes. After Appellant had gone a block or so, Blyn exited the car and followed him with his binoculars. At one point, Blyn saw Appellant put down his bag, rifle through it, pull something out and set it on the ground, put the backpack back on, grab the object on the ground, and continue on his path. Blyn then lost sight of Appellant.A short time later, Appellant walked back in Blyn's direction, and Blyn hid in the bushes and called the police.

In addition to corroborating much of Blyn's testimony, Josh Thatcher testified that he also exited the car after Appellant first walked by. Thatcher took pictures of Appellant standing across the street from some political signs and rifling through his backpack, and he saw Appellant pull from the backpack what looked like a Coke can but could have been a spray paint can. Thatcher then saw Appellant get "really close to" and kneel down in front of a sign placed in a residential yard. As Thatcher moved toward Appellant, Appellant suddenly turned and walked in Thatcher's direction. The two men exchanged greetings, and when Appellant disappeared behind him, Thatcher ran to the sign. The word "crook" was written in dripping spray paint across one of Marrs's signs.³ Thatcher got paint on his knuckle when he ran it across the sign.

Richland Hills Police Sergeant Robert Dostie and Officer Zachary Gibson responded to a dispatch regarding the instant offense. Sergeant Dostie found Appellant (who matched the description given by the 911 caller) walking in the area. When Sergeant Dostie stopped Appellant and asked if he had paint in his bag, Appellant invoked his Fourth Amendment right to privacy. Sergeant Dostie testified that Appellant had a video camera strapped around his neck and that heannounced he was going to turn it on.⁴ Thereafter, Blyn, Thatcher, and Marrs approached, and Blyn and Thatcher identified Appellant as the person they had seen earlier. Sergeant Dostie subsequently ordered Officer Gibson to arrest Appellant, and Appellant refused to place his hands behind his back and became "passive resistive."⁵ When Officer Gibson "brought [Appellant] around to try to put him down on the ground," Sergeant Dostie saw a can of red spray paint sticking out of one of the backpack's pockets. Sergeant Dostie did not see any paint on Appellant's hands, however.⁶ Sergeant Dostie testified that he spoke with his commander over the phone and then decided to arrest Appellant.

Officer Gibson testified that before he arrested Appellant, Appellant asked why the officers were there. When Officer Gibson responded that a sign had been spray painted, Appellant stated he did not know it was against the law to spray paint a political sign. According to Officer Gibson, when Sergeant Dostie told Appellant they were arresting him for criminal mischief, Appellant stated he could not be arrested because his actions constituted a political statement.Appellant then asked, "Isn't [criminal mischief] only a ticket?"⁷ After arresting Appellant and transporting him to the jail, Officer Gibson conducted an inventory search of Appellant's backpack and found one can of white and one can of black spray paint.

Marrs testified that on May 6, 2009, he replaced several defaced political signs with new signs in various areas of the city and that he placed the sign in question in a residential yard with the owner's permission. Marrs testified that the sign in question cost approximately $3.77 and that its defacement caused him a pecuniary loss of $500 or less. Marrs testified that, while he wanted whoever was defacing his signs to be arrested, he did not tell the officers to arrest Appellant.

During the trial, Appellant suggested that Marrs pressured the police into arresting him because he was "investigating" some of the things Marrs was doing in his official capacity and because the city manager and the city council set the budget for the police department. In Appellant's case in chief, Officer Dyrel Collins testified that he classified an earlier, different instance of vandalism to a political sign (as reported by a Richland Hills resident) as "noncriminal."

The trial court's jury charge instructed the jury to determine, in turn, whether Appellant was guilty of the Class B misdemeanor offense of graffiti, theClass C misdemeanor offense of criminal mischief, or not guilty. See Tex. Penal Code Ann. § 28.03, 28.08 (West 2011). The jury found Appellant guilty of graffiti with pecuniary loss of less than $500. The trial court assessed punishment at 120 days' confinement in the Tarrant County jail and $1000 fine, but suspended the imposition of the sentence and placed Appellant on community supervision for eighteen months. As conditions of community supervision, the trial court ordered Appellant to perform twenty-four hours of community service and to serve seven days in jail.

III. Constitutionality of the Graffiti Statute

In his first point, Appellant asserts that the evidence is insufficient to convict him of graffiti because his conduct consisted of protected free speech under the Texas and United States constitutions. The State responds that Appellant raises a First Amendment complaint for the first time on appeal and that "he appears to make an 'as applied' claim—i.e., the graffiti statute is unconstitutional as applied to him (presumably because he scrawled a 'political' message)."⁸ The State asserts that because Appellant did not object at trial that his First Amendment rights were violated by his prosecution under the graffitistatute, he failed to preserve error. See Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995).

A challenge to the sufficiency of the evidence need not be raised in the trial court to be preserved for appellate review. Moff v. State, 131 S.W.3d 485, 48889 (Tex. Crim. App. 2004); Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001). An "as applied" challenge to the constitutionality of a statute, however, cannot be raised for the first time on appeal. Curry, 910 S.W.2d at 496; see Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008) (noting the "well-established requirement that appellant must preserve an 'as applied' constitutional challenge by raising it at trial"); Ibenyenwa v. State, No. 02-10-00142-CR, 2012 WL 955401, at *1-2 (Tex. App.—Fort Worth Mar. 22, 2012, no pet. h.) (op. on reh'g).

Although Appellant's stated point is that "the evidence is insufficient to convict," he argues that "if what [he] did was protected speech then it cannot be a crime." See Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612 (1976).⁹ He advises that the Texas and United States constitutions guarantee the right of free speech, and he contends that the message he "allegedly spray painted on [Marrs's] sign" constitutes protected First Amendment speech. We agree with the State thatAppellant challenges the constitutionality of the graffiti statute as applied to him.¹⁰ Because Appellant did not raise his challenge in the trial court, we hold that he has forfeited his claim for review. We therefore overrule his first point.

IV. Sufficiency of the Evidence

In his second point, Appellant asserts that the trial court reversibly erred in accepting the jury's guilty verdict as to the graffiti offense because if he is guilty at all, he is guilty only of the lesser included offense of criminal mischief.

In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011), cert. denied, 80 U.S.L.W. 3462 (U.S. Mar. 19, 2012) (No. 11-944). We defer to the jury's determinations of credibility and may not substitute our judgment for that of the factfinder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most...