COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-12-00335-CR
ANTHONY GORDON MOMENTOFF APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 10 OF TARRANT COUNTY
MEMORANDUM OPINION 1
Appellant Anthony Gordon Momentoff appeals his convictions for
interference with public duties and obstructing a highway or other passageway.
Tex. Penal Code Ann. §§ 38.15, 42.03 (West 2011). We affirm.
1 See Tex. R. App. P. 47.4. I. BACKGROUND
On October 15, 2011, Occupy Wall Street protestors were encamped in a
park in downtown Fort Worth. Between 5:30 and 6:00 p.m., Fort Worth Police
Sergeant Darren Young and six other officers observed a large group standing
on the sidewalk near five tents. Sergeant Young notified a representative of the
group that the tents violated a city ordinance and would need to be removed from
the sidewalk. Knowing that the protestors planned to march through downtown
in the next hour, however, Sergeant Young allowed the tents to remain until the
protestors returned from the march. The officers assisted the protestors by
controlling traffic during the march.
Between 7:00 and 8:00 p.m., the protestors and officers returned to the
tents and Sergeant Young then ordered the representative to remove the tents.
Several of the protestors approached and argued as to why they did not need to
remove the tents. They also stated they would need to vote to determine
whether they would take the tents down. The officers allowed the protestors
more time to remove the tents and left the scene.
When the officers returned approximately an hour later, they noticed the
same five tents were still located on the sidewalk, leaving roughly ten to twelve
feet of unencumbered walking space. Sergeant Young noted that some of the
tents displayed protest signs and that several of the protestors were holding
protest signs while walking around and chanting. He again announced to the
2 group that they would have to remove their tents from the sidewalk. Instead, the
protestors began to enter the tents.
The officers began identifying the tents’ owners. Eventually, the officers
approached Appellant, who owned and occupied the largest of the five tents on
the sidewalk. According to Sergeant Young, Appellant’s tent blocked and
obstructed the path, causing it to be unreasonably inconvenient for an individual
to walk in that location. Sergeant Young notified Appellant that his tent violated a
city ordinance and that he needed to remove it. Sergeant Young further advised
Appellant that he would need to evacuate the tent so Sergeant Young could
perform his duty and remove it from the sidewalk. Appellant countered that the
tent was his protest sign and thus, protected by the First Amendment. Sergeant
Young explained that, by failing to exit the tent, Appellant would be interfering
with Sergeant Young’s public duty in violation of the penal code. Appellant
refused to move and was arrested and charged with interference with public
duties and obstructing a public sidewalk. A jury convicted him of both offenses
and the trial court assessed his punishment for each at thirty days in jail plus a
$500 fine. Appellant brings five issues on appeal.
II. DISCUSSION
A. Sufficiency of the Evidence
In his first, second, and fifth issues, Appellant contends that the evidence
is insufficient to show that (1) the arresting officer was performing a lawful duty in
3 attempting to remove Appellant’s tent; (2) his tent was blocking the sidewalk; and
(3) he was the person who committed the crimes alleged.
1. Standard of Review
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); Wise v. State, 364 S.W.3d 900, 903 (Tex.
Crim. App. 2012). The trier of fact is the sole judge of the weight and credibility
of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise,
364 S.W.3d at 903. Thus, when performing an evidentiary sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). Instead, we determine whether the necessary inferences are
reasonable based upon the cumulative force of the evidence when viewed in the
light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.
Crim. App. 2011). We must presume that the factfinder resolved any conflicting
inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S.
at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903.
2. Appellant interfered with an officer performing a public duty
A person commits the offense of interference with public duties “if the
person with criminal negligence interrupts, disrupts, impedes, or otherwise
4 interferes with . . . a peace officer while the peace officer is performing a duty or
exercising authority imposed or granted by law.” Tex. Penal Code Ann.
§ 38.15(a)(1).
In his first issue, Appellant contends that the evidence is insufficient to
support his conviction under this statute because his tent was not blocking the
sidewalk, so the officer had no duty to remove it. Sergeant Young testified that it
was “unreasonably inconvenient” for an individual to walk down the sidewalk
because of the placement of Appellant’s tent. He further testified that he
believed the tent was both blocking and obstructing the sidewalk. He later added
that although there were ten to twelve feet between the tents and the tree line
bordering the sidewalk, a fellow officer was forced to “step out into the street”
because the tent was blocking the passageway. Because Appellant’s tent
blocked part of the sidewalk, it necessarily impeded pedestrians from walking on
that portion of the sidewalk. Viewing the evidence in the light most favorable to
the verdict, we believe a rational trier of fact could have found beyond a
reasonable doubt that the officer was acting lawfully in removing the tent. We
overrule Appellant’s first issue.
3. Appellant obstructed a public sidewalk by building a tent upon it
In his second issue, Appellant challenges the evidence to support his
conviction for obstructing a highway or other passageway. The penal code
provides that a person commits an offense:
[I]f, without legal privilege or authority, he intentionally, knowingly, or
5 recklessly . . . obstructs a . . . sidewalk . . . to which the public or a substantial group of the public has access . . . regardless of the means of creating the obstruction and whether the obstruction arises from his acts alone or from his acts and the acts of others. Tex. Penal Code Ann. § 42.03(a)(1).
An obstruction means “to render impassable or to render passage unreasonably
inconvenient or hazardous.” Tex. Penal Code Ann. § 42.03(b). Appellant
specifically argues that the evidence is insufficient to show that the sidewalk was
obstructed.
Sergeant Young testified that Appellant’s tent was large and comfortably fit
four people. He noted several times throughout his testimony that he felt the tent
was both blocking and obstructing the sidewalk. Sergeant Young also stated that
the tent made it unreasonably inconvenient for pedestrians to continue on the
sidewalk. Additionally, the specific placement of the tent caused a fellow officer
to have to “step out into the street” because the tent was blocking the
passageway. Appellant’s counsel conceded during oral argument that because
the tent was placed on a portion of the sidewalk, it rendered that portion
impassable. However, he also points to Sergeant Young’s conflicting testimony
on the issue. In discussing the placement of the protestors’ tents within the park,
Sergeant Young indicated that the tents “were along . . . [a] treeline . . . on the
sidewalk, lined up . . . against the street.” He later added that the tents were
located in between the trees. Sergeant Young also noted that there were
planters located across from the tents, leaving ten to twelve feet of
unencumbered walking space. Further, he stated that several people were
6 walking on the sidewalk in that location. Appellant argues that the evidence is
disputed as to whether the tent was obstructing the entire sidewalk; therefore, it
is insufficient to prove a violation of the statute. We disagree.
While conducting a sufficiency of the evidence review, we do not re-
evaluate the weight and credibility of the evidence, but merely ensure the jury
reached a rational decision. Viewing the evidence in the light most favorable to
the verdict and giving deference to the credibility determinations of the factfinder,
we hold that a rational trier of fact could have found beyond a reasonable doubt
that Appellant blocked the sidewalk with his tent. We overrule Appellant’s
second point.
4. Appellant is the person who engaged in the conduct alleged
In his fifth issue, Appellant contends that the evidence is insufficient to
support the jury’s finding that Appellant was the individual who engaged in the
conduct charged.
The Texas Court of Criminal Appeals has held that “the testimony of [an]
eye witness alone [is] sufficient to support the jury’s verdict.” Aguilar v. State,
468 S.W.2d 75, 77 (Tex. Crim. App. 1971). In this case, the jury heard Sergeant
Young’s testimony identifying Appellant as the individual who committed the
crimes alleged in the information:
Q. And after this, did you come into contact with an Anthony Momentoff in a tent?
A. That’s correct.
7 Q. Do you see Mr. Momentoff in the courtroom today?
A. Yes, I do.
Q. Will you please point to where you identify the person as Anthony Momentoff and identify an article of clothing?
A. The gentleman sitting at the table with the blue shirt.
[PROSECUTOR]: Your Honor, may the record reflect that the witness has identified the defendant Anthony Momentoff.
Although the State asked the court to allow the record to reflect that
Sergeant Young identified Appellant, the court did not respond. In Rohlfing v.
State, the appellant was convicted of aggravated robbery. 612 S.W.2d 598, 600
(Tex. Crim. App. [Panel Op.] 1981). All the state’s witnesses identified the
appellant and an article of clothing he was wearing; however, the state failed to
ask the court to allow the record to reflect that the witnesses identified the
appellant. Id. at 601. The court of criminal appeals ultimately concluded that,
“from a totality of the circumstances the jury was adequately apprised that the
witnesses were referring to appellant.” Id. Because the appellant failed to object
at trial that the jury was misled by the in-court identification procedure, the
presumption is that the appellant, and no one else, was the person accused of
committing the crime. Id. Further, the court determined that the jury’s verdict
including the name of the appellant, coupled with the fact that no other individual
was on trial in the case, was sufficient to prove identification, absent any
objection from the appellant. Id.
8 In this case, Appellant did not object to the identification procedure at trial.
His failure to object forfeited any complaint about possible confusion or
misidentification. See id. Appellant alone was on trial for the crimes alleged.
The information charged “Anthony Gordon Momentoff” with interference with
public duties and obstructing a highway or other passageway. When arraigned
and asked by name how he pled, Appellant’s counsel entered a plea of “not
guilty” to each count. Sergeant Young referred to Appellant by name in his
testimony. Further, the jury saw Sergeant Young identify Appellant by pointing to
where he sat. Each jury charge identified the person on trial as “Anthony Gordon
Momentoff” and the jury found “the defendant . . . guilty as charged.”
In reviewing the sufficiency of the evidence of an in-court identification, the
test is whether we can conclude from a totality of the circumstances the jury was
adequately apprised that the witnesses were referring to Appellant as the
perpetrator of the offense. Id. We find that the evidence is sufficient to establish
that Appellant was the perpetrator of each of the offenses for which he was
convicted. We overrule Appellant’s fifth point.
B. Constitutionality
In his third issue, Appellant contends that his conviction violates the free-
speech guarantees of the United States and Texas Constitutions. 2
2 Appellant waived his claim under the Texas Constitution at oral argument; thus, his issue is no longer multifarious as argued by the State. We address Appellant’s third issue as arising solely under the United States Constitution.
9 1. Standard of Review
An evaluation of the constitutional limitations on protected speech first
begins with the nature of the speaker’s location. Frisby v. Schultz, 487 U.S. 474,
479, 108 S. Ct. 2495, 2500 (1988). The Supreme Court has identified three
types of fora including “the traditional public forum, the public forum created by
government designation, and the nonpublic forum.” Cornelius v. NAACP Legal
Def. & Educ. Fund, Inc., 473 U.S. 788, 802, 105 S. Ct. 3439, 3449 (1985). The
Court has consistently characterized public streets and sidewalks “as the
archetype[s] of a traditional public forum.” Frisby, 487 U.S. at 480, 108 S. Ct. at
2500. As such, the government may impose reasonable time, place, and
manner restrictions on protected speech when the restriction is content-neutral,
is narrowly tailored to serve a significant government interest, and allows
alternative channels of communication. Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 3069 (1984). These
constitutionally permissive governmental restrictions may be imposed on any
type of “expression, whether oral or written or symbolized by conduct.” Id.
2. Discussion
Appellant argues that Sergeant Young violated his First Amendment rights
by ordering him to remove his tent and arresting him for not doing so.
Specifically, he states that his tent effectively served as his protest sign; thus, he
should have been permitted to place it on the sidewalk as part of his protected
speech. Additionally, Appellant argues he did not violate section 38.15(a)(1) of
10 the penal code because he was peacefully disobeying an unconstitutional order.
Tex. Penal Code Ann. § 38.15(a)(1).
Even assuming Appellant’s tent qualified as speech under the First
Amendment, his argument is without merit. Sergeant Young acted without
regard to the content of Appellant’s message when he asked that the tents be
removed from the sidewalk. During trial, Sergeant Young stated that he asked
Appellant and the other protestors to remove the tents because they were
blocking and obstructing the sidewalk. At no point did Sergeant Young state that
he considered the protestors’ message in enforcing the statute. In fact, the
officer specifically testified that he did not object to the signs or their content and
did not advise the protestors they could not have the signs or carry them. His
concern was that the tents blocked the sidewalk.
Additionally, there were several other channels in which the protestors
could have (and did) convey their message. The protestors were able to
participate in a march throughout downtown Fort Worth and even received the
assistance of the police department. After the march, a band was allowed to
perform in the park to celebrate the protest. Throughout the evening, the
protestors were free to walk and chant on the sidewalks while carrying protest
signs. At no point did the officers prevent the protestors from gathering, having
the concert, chanting, or holding the signs. In fact, Sergeant Young testified that
he had no issues with the protestors during the “two or three previous days” they
had been in the area “marching and protesting.”
11 Further, Sergeant Young’s act was narrowly directed at removing the tent
for the purpose of keeping the sidewalk free of any obstructions. The state has a
significant interest in ensuring its citizens’ safe and efficient use of public
sidewalks. See Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 768, 114 S.
Ct. 2516, 2526 (1994) (noting state’s “strong interest in ensuring the public safety
and order, in promoting the free flow of traffic on public streets and sidewalks”).
The removal of Appellant’s tent furthered this interest.
The State’s restrictions on Appellant’s actions and placement of his tent
were reasonable due to the time, place, and manner in which they were
enforced. The officer allowed Appellant ample opportunity to comply with his
orders. He first requested that the tents be taken down around 5:30 or 6:00 p.m.
It was not until 9:00 p.m. that Appellant was arrested for not complying with the
request. The tent, if left on the sidewalk, could have been a safety hazard as it
was obstructing a portion of the sidewalk late in the evening when visibility would
have been poor. The officer’s actions were reasonable in light of the
circumstances and did not infringe upon Appellant’s constitutional rights. We
overrule Appellant’s third issue.
C. Jury Charge
In his fourth issue, Appellant contends the trial court erred by overruling his
objection to the jury charge on count one.
12 1. Standard of Review
“[A]ll alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,
649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine
whether error occurred; if error did not occur, our analysis ends. Id. If error did
occur, whether it was preserved determines the degree of harm required for
reversal. Id.
Error in the charge, if timely objected to in the trial court, requires reversal
if the error was “calculated to injure the rights of [the] defendant,” which means
no more than that there must be some harm to the accused from the error. Tex.
Code Crim. Proc. Ann. art. 36.19 (West 2006); See Abdnor v. State, 871 S.W.2d
726, 732 (Tex. Crim. App. 1994); Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985) (op. on reh’g); see also Louis v. State, 393 S.W.3d 246, 254
(Tex. Crim. App. 2012) (noting that Almanza harm-analysis standards are well-
established). In other words, a properly preserved error will require reversal as
long as the error is not harmless. Almanza, 686 S.W.2d at 171. In making this
determination, “the actual degree of harm must be assayed in light of the entire
jury charge, the state of the evidence, including the contested issues and weight
of probative evidence, the argument of counsel and any other relevant
information revealed by the record of the trial as a whole.” Id.; see also Barron v.
State, 353 S.W.3d 879, 884 (Tex. Crim. App. 2011) (elaborating on the
importance of considering the entire jury charge).
13 2. Discussion
At trial, Appellant requested that the charge include the statutory defense
in section 38.15(d) of the penal code that Appellant’s interference with Sergeant
Young’s public duties constituted speech only. Tex. Penal Code Ann. § 38.15(d).
The trial court overruled the request. The statutory provision states “[i]t is a
defense to prosecution under this section that the interruption, disruption,
impediment, or interference alleged consisted of speech only.” Id.
Defendants in criminal trials are entitled to a jury-charge instruction on any
defensive or mitigating issue adduced by the evidence at trial. Tex. Penal Code
Ann. § 2.03(c); Arnold v. State, 742 S.W.2d 10, 13 (Tex. Crim. App. 1987); Kahn
v. State, 393 S.W.3d 519, 532 (Tex. App.—Austin 2013, pet. ref’d). This rule
applies whether the evidence adduced is strong, weak, or contradicted and
applies regardless of whether the trial judge believes the evidence is credible.
Arnold, 742 S.W.2d at 13. A defendant raises an issue “if there is some
evidence, from any source, on each element of the defense that, if believed by
the jury, would support a rational inference that [the] element is true.” Shaw v.
State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007), cert. denied, 553 U.S.
1059 (2008).
The information in count one alleged that Appellant interfered with
Sergeant Young by “refusing to evacuate the tent” Sergeant Young was
attempting to remove. Appellant argues he adduced enough evidence at trial to
show that his behavior was only speech. Specifically, he points to Sergeant
14 Young’s testimony that Appellant claimed his tent was his protest sign. He also
noted that the protestors hung protest signs on the tents. However, the focus of
the analysis is not on the tent itself, but rather on Appellant’s act of “refusing to
evacuate the tent.” Appellant’s act of standing in his tent and refusing to allow
the officer to remove it did not constitute “speech only.” Appellate courts have
consistently interpreted the statute as protecting only verbal forms of speech.
See Carney v. State, 31 S.W.3d 392, 398 (Tex. App.—Austin 2000, no pet.)
(determining that although appellant argued with officers and delayed their entry
into his home, he did not physically impede them from entering); see also Key v.
State, 88 S.W.3d 672, 676 (Tex. App.—Tyler 2002, pet. ref’d) (deciding that
conduct of individual who repeatedly stepped off sidewalk in violation of officer’s
order was not speech only); see also Dickerson v. State, No. 01-05-00948-CR,
2006 WL 3316735, at *3 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (mem.
op., not designated for publication) (discussing appellant’s failure to restrain her
dog after officer’s repeated requests to do so constituted more than speech
alone). We hold that Appellant engaged in conduct other than speech and
committed a physical act that prevented Sergeant Young from performing his
duty. The defense under section 38.15(d) was not raised by the evidence at trial;
thus, it was not error to exclude it from the jury charge. Tex. Penal Code Ann.
§ 38.15(d). We overrule Appellant’s fourth issue.
15 III. CONCLUSION
Having overruled all of Appellant’s issues, we affirm the trial court’s
judgment.
LEE GABRIEL JUSTICE
PANEL: DAUPHINOT, MCCOY, and GABRIEL, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: November 7, 2013