Tisdale v. State

• Decision Date: 22 September 1982
• Docket Number: No. 04-81-00181-CR,04-81-00181-CR
• Citation: 640 S.W.2d 409
• Court: Texas Court of Appeals
• Parties: Brenda TISDALE, Appellant, v. STATE of Texas, Appellee.

Page 409

640 S.W.2d 409

Brenda TISDALE, Appellant, v. STATE of Texas, Appellee.

No. 04-81-00181-CR.

Court of Appeals of Texas,

San Antonio.

Sept. 22, 1982.

Marvin B. Zimmerman, San Antonio, for appellant.

Bill White, Dist. Atty., Douglas McNeel, Asst. Dist. Atty., San Antonio, for appellee.

Before CADENA, C.J., and CANTU and BASKIN, JJ.

OPINION

BASKIN, Justice.

This is an appeal from a conviction for prostitution. Tex.Penal Code Ann. § 43.02 (Vernon Supp.1982). Appellant was convicted by a jury in a county court at law on one count under the statute, and the jury assessed punishment at one hundred eighty (180) days' confinement in the Bexar County Jail. ¹

The prostitution statute provides:

(a) A person commits an offense if he knowingly:

(1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; or

(2) solicits another in a public place to engage with him in sexual conduct for hire.

(b) An offense is established under Subsection (a)(1) of this section whether the actor is to receive or pay a fee. An offense is established under Subsection (a)(2) of this section whether the actor solicits a person to hire him or offers to hire the person solicited.

(c) An offense under this section is a Class B Misdemeanor, unless the actor has been convicted previously under this section, in which event it is a Class A misdemeanor.

Following the trial of the case, the parties filed an Agreed Statement of Facts. Paragraph II of the Agreed Statement of Facts provides:

A jury was impaneled and heard testimony from Officer William Overstreet who testified that at approximately 3:00 a.m., in the early hours of the 2nd day of March, 1978, he was working undercover vice and driving his personal pick-up truck in the 100 block of Casino in San Antonio, Bexar County, Texas, when the Defendant, BRENDA TISDALE, motioned for him to pull his truck over to the curb. Officer Overstreet did so, and the Defendant approached his vehicle. She then offered to engage him in sexual intercourse for a fee payable to her in the amount of Fifteen ($15.00) Dollars. The jury retired and then found the Defendant guilty. The sufficiency of the evidence is not challenged.

The appellant bases her appeal on two (2) grounds of error. By ground of error number one, she asserts that section 43.02(a)(1) of the Texas Penal Code is unconstitutional because it deprives individuals of their right to privacy. In her ground of error number two, appellant contends that section 43.02(a)(1) of the Texas Penal Code is unconstitutionally overbroad on its face because it sweeps within its ambit certain conduct protected by the United States Constitution.

Before we address these two (2) grounds of error, we deem it helpful to review the factual and legal admissions made by appellant which have narrowed and sharpened her constitutional attacks on this statute. Additionally, we must consider whether appellant has standing to assert the claims upon which she relies.

The first full paragraph on page 2 of appellant's brief reads as follows:

Appellant would admit that in each of the fifteen (15) cases she did in fact attempt to solicit an undercover vice-officer in a public place to engage her in sexual conduct for a fee payable to Appellant. The State of Texas elected not to charge Appellant with violating Article 43.02(a)(2) of the Texas Penal Code which states: "A person commits an offense if he knowingly (2) solicits another in a public place to engage with him in sexual conduct for hire." Appellant would not question the constitutionality of this statute, because the police power of the Constitution clearly allows the State to regulate conduct in a public place. However, the State has elected to prosecute Appellant for a violation of Article 43.02(a)(1), which states "A person commits an offense if he knowingly: (1) offers to engage, agrees to engage, or engages in sexual conduct for a fee;" it is this statute that Appellant will show the Court is unconstitutional on its face.

This admission by appellant conforms with the Agreed Statement of Facts which states that at approximately 3:00 a.m. on March 2, 1978, appellant motioned for an undercover officer to pull his truck over to the curb, and when he did so she approached his vehicle and offered to engage him in sexual intercourse for a fee payable to her. It is therefore undisputed and indeed agreed by the parties that appellant was guilty of, and could have been convicted of, prostitution as it is defined in section 43.02(a)(2). It is equally undisputed that appellant is guilty of prostitution as it is defined in section 43.02(a)(1) unless her activity as described in the Agreed Statement of Facts brings her within the protection of one or more provisions of the Constitution of the United States, with particular reference to right of privacy and overbreadth of a criminal statute.

The State challenges Brenda Tisdale's standing to attack the prostitution statute on the grounds that it is unconstitutionally overbroad and that it invades her constitutionally guaranteed right of privacy. The State points out that appellant concedes in her brief that there is a justified State interest in banning the form of prostitution practiced by call girls and brothel workers and she, in this case, can argue only hypothetically that enforcement of the statute could conceivably violate the constitutional rights of others. The State also points out that she presents no claim that her arrest and conviction under the statute violated her right to privacy.

Supreme Court decisions do not support the attack on standing. In Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830 (1973), Justice White adverts to the general principles that a person to whom a statute may be constitutionally applied will not be heard to challenge it on the ground that it may conceivably be applied unconstitutionally to others, in situations not before the court. Also, constitutional rights are personal and may not be asserted vicariously. The Court has, however, engrafted some exceptions onto these principles. One such exception protects individuals not parties to a particular suit who stand to lose by its outcome and yet have no effective avenue of preserving their rights themselves. Another exception has been carved out to protect non-litigants whose First Amendment rights may be in jeopardy. Attacks on overbreadth, particularly where the statutes seek to regulate spoken words only, have been entertained by the Court, "with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity." Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965). Since the appellant here attacks the prostitution statute both on the grounds of overbreadth and right of privacy, each of which may be undergirded by the First Amendment, we hold that she has standing to bring her appeal before this court.

Since the appellant has chosen to limit her attack on her conviction to violation of rights under the Constitution of the United States, it seems appropriate then to review the development by the United States Supreme Court of rules of interpretation and application in these sensitive areas.

Although the Constitution of the United States does not explicitly mention any right of privacy, the Supreme Court has in various factual and legal settings recognized that a right of personal privacy is constitutionally protected. In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the Court held unconstitutional a Connecticut statute which prohibited and made criminal the sale of contraceptives. The Court held that this statute invaded the right of privacy of the Griswolds, who were a married couple. The opinion is unclear, however, whether the protection against prohibition of the use of contraceptives was limited to married people or whether it was also extended to the intimacy and choice of individuals. Various justices writing in Griswold found the roots of the right of privacy in different portions of the Constitution in the First Amendment and made applicable to the states through the Due Process Clause of the Fourteenth Amendment; in the penumbra of the First Amendment freedoms; in "zones of privacy" and "liberty" protected in the Fourteenth Amendment Due Process Clause. Others felt that it inhered in the Ninth Amendment. There is some particularly interesting language by Justices Harlan and White that the right of privacy might be found in the Due Process Clause of the Fourteenth Amendment and need not be included in some activity protected in the First through Eighth Amendments of the Constitution.

In Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), the Supreme Court relied upon the right of privacy when it struck down Virginia's antimiscegenation statute, holding it unconstitutional under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The right to possess obscene material in one's home was upheld in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), where the right of privacy was found to inhere in the First and Fourteenth Amendments. The Supreme Court in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), struck down a Massachusetts statute under which the defendant had been convicted of giving away some contraceptive foam. The Court addressed the issue apparently left unanswered by Griswold v. Connecticut, supra, and held that the right of privacy "is the right of the individual, married or single, to be free from unwarranted governmental intrusion...." Eisenstadt v. Baird, supra at 453, 92 S.Ct. at 1038.

Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), struck down the Texas abortion statute, because among other things, it violated the right of privacy,...