State v. Holcombe

• Decision Date: 22 April 2004
• Docket Number: No. 2-02-515-CR.,2-02-515-CR.
• Citation: 145 S.W.3d 246
• Parties: The STATE of Texas, State, v. Stephen John HOLCOMBE, Appellee.
• Court: Texas Court of Appeals

145 S.W.3d 246

The STATE of Texas, State, v. Stephen John HOLCOMBE, Appellee.

No. 2-02-515-CR.

Court of Appeals of Texas, Fort Worth.

April 22, 2004.

Rehearing Overruled July 15, 2004.

Appeal from the County Criminal Court No. 9, Tarrant County, Brent A. Carr, J Tim Curry, Crim. Dist. Atty., Charles M. Mallin, Tanya S. Dohoney and Kim D'Avignon, Asst. Crim. Dist. Attys., Fort Worth, for State.

Stephen Gordon, Fort Worth, for Appellee.

Panel B: DAUPHINOT, HOLMAN, and McCOY, JJ.

OPINION

DIXON W. HOLMAN, Justice.

The State appeals the trial court's order granting Appellee Stephen John Holcombe's motion to suppress. We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On May 19, 2002, at approximately 2:30 a.m., Bedford police officer Joseph Riley and his partner William Mack responded to a call regarding a loud-noise disturbance. According to Riley, the officers were responding for the second time that evening to complaints made about a loud party at a house located on Vicksburg Drive. Riley testified that since it was their second visit to the scene, the officers issued a citation for violating Bedford's noise ordinance, which states:

The following sounds are hereby determined to be specific noises which can constitute a noise disturbance, and violations of this article are hereby defined. A noise does not have to exceed the specifications for environmental sound levels contained in section 12-53 in order to constitute a violation of this section.

....

(2) Radios, television sets, musical instruments and similar devices. Operating or permitting to be operated any radio receiving set, musical instrument, television, phonograph, drum or other machine or device for the production or reproduction of sound in such a manner as to violate the sound levels of this article or to unreasonably disturb or interfere with the peace, comfort and repose of neighboring persons of ordinary sensibilities unless a permit of variance is first obtained.

BEDFORD, TEX., CODE OF ORDINANCES ch. 54, art. II, § 36 (2002).¹

After issuing the citation, Riley stated that as he headed back to his patrol car, he noticed Appellee's white Mercedes approximately seventy-five yards away playing loud music. Riley testified that Appellee's music was louder than the noise at the party for which he had just written a citation and that the Bedford noise ordinance is a general noise ordinance that is not specific to residences. Mack testified that he was between one hundred twenty and one hundred fifty feet away from the car and described the music as "extremely" loud. Because the officers were called to the neighborhood in response to a loud noise disturbance call and Riley believed Appellee was violating the Bedford noise ordinance, Riley flagged down the car and asked Appellee to turn down his music. Riley, speaking to Appellee through the sunroof of the car because the other windows were rolled up, noticed a strong odor of an alcoholic beverage and that Appellee's speech was slurred. Riley also testified that Appellee's eyes appeared to be bloodshot. According to Riley, Appellee appeared to be under the influence of alcohol and he intended to keep speaking to him, but Appellee said he was sorry and drove off. Riley radioed ahead to Mack, who was about seventy-five yards down the street and asked him to stop Appellee. Appellee was arrested for driving while intoxicated.

After a hearing on November 21, 2002, the trial court granted Appellee's motion to suppress and announced on the record that the grounds for suppression were that the Bedford noise ordinance is unconstitutional because it is overbroad and does not place the public on sufficient notice. The trial court subsequently adopted the State's proposed order, which stated that the trial court's suppression was based on the fact that the ordinance is overbroad. This appeal ensued.

STANDARD OF REVIEW

A trial court's ruling on a motion to suppress evidence will not be set aside absent an abuse of discretion. Taylor v. State, 945 S.W.2d 295, 297 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). We review a trial court's ruling on a motion to suppress using the bifurcated standard of review set forth in Guzman v. State. 955 S.W.2d 85 (Tex.Crim.App.1997). We defer to the trial court's determination of the historical facts and rulings on mixed questions of law and fact. Id. at 87-88; Morfin v. State, 34 S.W.3d 664, 666 (Tex.App.-San Antonio 2000, no pet.). However, we decide de novo whether the trial court erred in misapplying the law to the facts. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App.2000); Morfin, 34 S.W.3d at 666.

Imprecise laws can be attacked on their faces under two different doctrines. City of Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 1857, 144 L.Ed.2d 67 (1999). First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when "judged in relation to the statute's plainly legitimate sweep." Id.; Broadrick v. Oklahoma, 413 U.S. 601, 612-15, 93 S.Ct. 2908, 2916-18, 37 L.Ed.2d 830 (1973). Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Morales, 527 U.S. at 52, 119 S.Ct. at 1857; Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983).

OVERBREADTH

In the State's first four points of error, it argues that the trial court erred in concluding that the Bedford noise ordinance is constitutionally overbroad. It is within the State's police power to protect the tranquility, quiet enjoyment, and well-being of the community. Frieling v. State, 67 S.W.3d 462, 472 (Tex.App.-Austin 2002, pet. ref'd). This right of the State is limited only by individual constitutional rights, such as First Amendment free speech. Blanco v. State, 761 S.W.2d 38, 40 (Tex.App.-Houston [14th Dist.] 1988, no pet.). Consequently, in analyzing a facial challenge to the overbreadth of a law, we first determine if the statute reaches a substantial amount of constitutionally protected conduct. Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982); Blanco, 761 S.W.2d at 40. A statute will not be invalidated for overbreadth merely because it is possible to imagine some unconstitutional applications. Hoffman, 455 U.S. at 494, 102 S.Ct. at 1191. Rather, the wide-reaching effects of striking down a statute on its face, at the request of one whose own conduct may be punished despite the First Amendment, has caused the Supreme Court to recognize that the "overbreadth doctrine is `strong medicine'" and [courts should] employ it "with hesitation, and then `only as a last resort.'" New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982) (quoting Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916).

We have reviewed several federal and state cases dealing with the constitutionality of noise ordinances, first turning to the United States Supreme Court's decision in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). That case involved equal rights protests by black students at a high school in Illinois during the 1960s. Id. at 105, 92 S.Ct. at 2297. One of the students, Richard Grayned, was found guilty of violating the city's noise ordinance. Id. at 106, 92 S.Ct. at 2298. The Rockford ordinance read:

No person, while on public or private grounds adjacent to any building in which a school or any class thereof is in session, shall willfully make or assist in the making of any noise or diversion which disturbs or tends to disturb the peace or good order of such school session or class thereof.

Id. at 107-08, 92 S.Ct. at 2298. Grayned raised claims of both vagueness and overbreadth to attack his conviction. Id. at 108, 114, 92 S.Ct. at 2298, 2302. In holding that the Rockford ordinance was not invalid on its face, the Grayned court noted that the city had a compelling interest in preserving "an undisrupted school session conducive to the students' learning." Id. at 119, 92 S.Ct. at 2305. The ordinance, although restrictive of expressive behavior during the school session, was not overbroad because:

Rockford punishes only conduct which disrupts or is about to disrupt normal school activities.... Peaceful picketing which does not interfere with the ordinary functioning of the school is permitted. And the ordinance gives no license to punish anyone because of what he is saying.

Id. at 119-20, 92 S.Ct. at 2305. Similarly, the Bedford ordinance restricts only those noises that "unreasonably disturb or interfere with the peace, comfort and repose of neighboring persons of ordinary sensibilities"; it is neutral regarding content and location.

In Ward v. Rock Against Racism, the Supreme Court upheld New York City's volume control regulations for public outdoor concerts despite clear First Amendment protection for music because the city's interest in tranquility allowed it to impose reasonable restrictions. 491 U.S. 781, 790, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989). According to the Ward court, "A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Id. at 791, 109 S.Ct. at 2754. Under Ward, Bedford may impose reasonable restrictions on the time, place, or manner of constitutionally protected speech — even in a public forum. Id. at 791, 109 S.Ct. at 2753. A valid time, place, and manner restriction, however, must be content-neutral. Id. A restriction is content-neutral so long as it is "justified without reference to the content of the regulated speech." Id. (quoting Clark...