Cotton v. State

686 S.W.2d 140, 1985 Tex. Crim. App. LEXIS 1208

• Court: Court of Criminal Appeals of Texas
• Decided: February 6, 1985
• Docket: 035-84
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

This is an appeal from a conviction of the misdemeanor offense of selling beer to a person showing evidence of intoxication in violation of V.T.C.A., Alcoholic Beverage Code, §§ 61.71(a)(6) and 61.77. Appellant was convicted in a bench trial and, pursuant to the general penalty provision of V.T. C.A., Alcoholic Beverage Code, § 1.05, punishment was assessed by the court at a fine of $200.00.

On November 17, 1983, the Court of Appeals affirmed the conviction in a published opinion. Cotton v. State, 662 S.W.2d 110 (Tex.App. — Houston [1st Dist.] 1983). With one justice dissenting, the Court of Appeals upheld the validity of § 61.71(a)(6), supra, against appellant’s assertion that the statute is unconstitutionally vague. On April 18, 1984, we granted appellant’s petition for discretionary review to examine the constitutionality of § 61.71(a)(6). We reverse.

V.T.C.A., Alcoholic Beverage Code, § 61.-71 (Grounds for Cancellation or Suspension: Retail Dealer), provides in pertinent part:

“(a) The commission or administrator may suspend for not more than 60 days or cancel an original or renewal retail dealer’s on-or off-premise license if it is found, after notice and hearing, that the licensee:

(6) sold, served, or delivered beer to a person showing evidence of intoxication.1 (Emphasis added.)

V.T.C.A., Alcoholic Beverage Code, § 61.-77 (Certain Acts Also Violations of Code), reads in part:

“Any act of omission or commission which is a ground for cancellation or suspension of a license under section 61.-71 ... of this code is also a violation of this code, punishable as provided in Section 1.05 of this code_”

V.T.C.A., Alcoholic Beverage Code, § 1.05 (General Penalty), provides:

“(a) A person who violates a provision of this code for which a specific penalty is not provided is guilty of a misdemeanor and on conviction is punishable by a fine of not less than $100 nor more than $1000 or by confinement in the county jail for not more than one year or by both.

(b) The terms ‘specific penalty,’ as used in this section, means a penalty which might be imposed as a result of a criminal prosecution.”

V.T.C.A., Alcoholic Beverage Code, § 61.-71(d), provides that the ground set forth in subsection (a)(6) “also [applies] to an agent, servant, or employee of the licensee.”

Appellant argues that an overzealous police officer can determine that anyone shows, “evidence of intoxication” and can use the § 61.71(a)(6) proscription as a subterfuge for the arrest of a license holder or employee of an establishment licensed by the Texas Alcoholic Beverage Commission. Appellant contends that there is no objective standard by which a person’s conduct can be measured. We agree.

A statute which forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 323 (1926); Passmore v. State, 544 S.W.2d 399 (Tex.Cr.App.1976); Baker v. State, 478 S.W.2d 445 (Tex.Cr.App.1972); Ex parte Chernosky, 153 Tex.Crim. 52, 217 S.W.2d 673 (1949).

A statute is void for vagueness if it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,” Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1953), or if it “encourages arbitrary and erratic arrests and convictions.” Papachristou, supra; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066 (1937). Either is an independent ground. See also, Goocher v. State, 633 S.W.2d 860 (Tex.Cr.App.1982); Bates v. State, 587 S.W.2d 121 (Tex.Cr.App.1979); McMorris v. State, 516 S.W.2d 927 (Tex.Cr.App.1974).

The critical statutory phrase “evidence of intoxication” is readily distinguishable from the standard of guilt upheld by this Court in Campos v. State, 623 S.W.2d 657 (Tex.Cr.App.1981), and the standard of criminal responsibility upheld by the Houston Court of Appeals in Alexander v. State, 630 S.W.2d 355 (Tex.App. — Houston [1st] 1982, no pet.).

In Campos, supra, the defendant attacked the constitutional validity of V.T. C.A., Alcoholic Beverage Code, § 101.63(a), which provides:

“(a) A person commits an offense if he knowingly sells an alcoholic beverage to an habitual drunkard or an intoxicated or insane person.” (Emphasis added.)

Finding that the word “intoxicated” was not statutorily defined, we held that it was to be given its commonly understood meaning. Thus defined, “[a] person of common intelligence can determine with reasonable precision what conduct it is his duty to avoid under the statute.” Campos, supra at 659. And indeed we can.

In Alexander, supra, the Court of Appeals sustained the validity of the Texas public intoxication statute, V.T.C.A., Penal Code, § 42.08(a), which provides:

“(a) An individual commits an offense if he appears in a public place under the influence of alcohol or any other substance, to the degree that he may endanger himself or another.” (Emphasis added.)

Again, this is a readily ascertainable standard of prohibited conduct. See Davis v. State, 576 S.W.2d 378, n. 2, (Tex.Cr.App.1978), reh’g denied en banc, (1979).

It can easily be seen, however, that there is a substantial and significant distinction between the criteria “an intoxicated person” or a person “under the influence of alcohol ... to the degree that he may endanger himself or another’ and the criteria “a person showing evidence of intoxication.” ² The latter category encircles and describes not only those who are so intoxicated that they exhibit “outward signs” of that condition, but also those who are not intoxicated, yet, nevertheless, exhibit one or more of the classic symptoms of intoxication that are universally accepted as “evidence” in criminal cases. Therein lies the problem.

“Evidence of intoxication” encompasses specific conduct that, when combined with other specific conduct which is also evidence of intoxication, leads to the conclusion that a person is intoxicated or is under the influence of alcohol to the degree that he may endanger himself or another.³ But individual symptoms of intoxication, when manifesting themselves alone instead of in concert, bear little relation to ascertainable criminal conduct. Slurred speech, bloodshot eyes, a staggering gait, or simple drowsiness are each individually “evidence of intoxication,” but common experience teaches us that each may be demonstrated by the intoxicated or the abstemious, the soused or the sober. So is serving a person exhibiting one of these symptoms a violation of the law or not? Similarly, since alcoholic breath is “evidence of intoxication,” if while receiving a patron’s order for a second beer the tavern owner detects the odor of the first on the customer’s breath, is it or is it not a violation of § 61.71(a)(6) for the licensee to consummate the sale of that second beer?

Our inability to answer these questions, except with a guess, demonstrates clearly that § 61.71(a)(6) is unconstitutionally vague. The perimeters of its prohibition are imprecise. It is axiomatic that a criminal statute must “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). As currently enacted, a retail dealer licensee must simply guess at the standard of criminal responsibility. Further, “if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.” Grayned, supra. It is not sufficient to leave enforcement to the sound discretion of the police, trusting them to invoke the law only in appropriate (whatever that means) cases. A criminal statute must itself be precisely drawn so that it eliminates the risk of capricious application rather than fosters it as the present statute does.

We hold, therefore, that § 61.71(a)(6) is unconstitutionally vague and unenforceable as a penal sanction. Accordingly, the judgments of the court of appeals and the trial court are reversed and the cause is remanded to the trial court for dismissal of the information.

1 . This standard is the lineal descendant of a 1937 amendment to the Texas Liquor Control Act. See, Acts 1937, 45th Leg., p. 1053, 1108, ch. 448, Art. II, § 19(b).

2 . The same distinction lies between the instant statute and those which refer to an "obviously intoxicated person,” see Cal.Bus. & Prof.Code, § 25602(a) (West Supp.1984), or a "person visibly intoxicated," see Pennsylvania Liquor Code, Pa.Stat.Ann. tit. 47, § 4-493 (Purdon 1969).

3 . Evidence of intoxication may include, inter alia:

(a) slurred speech:

Campos v. State, 623 S.W.2d 657 (Tex.Cr. App.1981); Annis v. State, 578 S.W.2d 406 (Tex.Cr.App. 1979); Balli v. State, 530 S.W.2d 123 (Tex.Cr.App.1975); Heck v. State, 507 S.W.2d 737 (Tex.Cr.App. 1974); Rangel v. State, 502 S.W.2d 152 (Tex.Cr.App.1973);

(b) bloodshot eyes:

Annis, supra; Rangel, supra; Vaughn v. State, 493 S.W.2d 524 (Tex.Cr.App.1972); Wagoner v. State, 402 S.W.2d 738 (Tex.Cr.App. 1966); Hooker v. State, 388 S.W.2d 951 (Tex. Cr.App.1965);

(c) the odor of alcohol on the person:

Dorsche v. State, 514 S.W.2d 755 (Tex.Cr. App.1974); Fontenot v. State, 486 S.W.2d 941 (Tex.Cr.App.1972); Johnson v. State, 446 S.W.2d 324 (Tex.Cr.App.1969); Thurmond v. State, 441 S.W.2d 528 (Tex.Cr.App.1969); Lamb v. State, 409 S.W.2d 418 (Tex.Cr.App. 1966);

(d) unsteady balance:

Campos, supra; Dorsche, supra; Nichols v. State, 504 S.W.2d 462 (Tex.Cr.App. 1974); Rangel, supra; Fontenot, supra; Goff v. State, 446 S.W.2d 313 (Tex.Cr.App.1969);

(e) a staggered gait:

Dickey v. State, 552 S.W.2d 467 (Tex.Cr.App. 1977); Casey v. State, 414 S.W.2d 657 (Tex.Cr. App.1967); Riley v. State, 406 S.W.2d 438 (Tex.Cr.App.1966); Evans v. State, 402 S.W.2d 756 (Tex.Cr.App.1966); Hooker, supra; Lacyv. State, 374 S.W.2d 244 (Tex.Cr.App.1963); and

(f) the odor of alcohol on the breath:

Campos, supra; Annis, supra; Balli, supra; Heck, supra; Rangel, supra; Day v. State, 474 S.W.2d 246 (Tex.Cr.App.1971); Goff, supra; Hooker, supra; among other things.