Dedonato v. State

789 S.W.2d 321, 1990 Tex. App. LEXIS 772, 1990 WL 52806

• Court: Court of Appeals of Texas
• Decided: April 5, 1990
• Docket: 01-88-00426-CR
• Status: Published

Opinions

ON MOTION FOR REHEARING

EVANS, Chief Justice.

We withdraw our original opinion issued September 21, 1989, and substitute the following opinion in its stead.

In a nonjury proceeding, the trial court found appellant guilty of conducting a sexually oriented business without a permit, and assessed her punishment at three days confinement and a fine of $250.

In appellant’s first point of error, she contends the county criminal court at law lacked jurisdiction over the offense charged in the information.

The information alleged that appellant had intentionally and knowingly delivered and provided merchandise, goods, and entertainment

on the enterprise premises in a sexually-oriented commercial enterprise, namely an adult lounge, located within the corporate limits of the city of Houston at 5610 Richmond, and said adult lounge did not have a permit secured from the Chief of Police or his designated Director as required by Section 28-122(a) of the Houston City Ordinance governing sexually oriented businesses.

The Houston city ordinance is not in the record before us, but appellant has cited the applicable portions in her brief. According to appellant, section 28-122(a) of the ordinance provides:

It shall be unlawful for any person to own, operate, or conduct any business in an enterprise located within the city unless there is a permit for the enterprise.

Code of Ordinances, City of Houston, Texas ch. 28, art. Ill, section 28-122(a) (1988).

Appellant argues, therefore, that the offense charged in the information is not a class B misdemeanor, and that the municipal court, not the county criminal court at law, had exclusive jurisdiction over the offense charged.

We disagree with appellant’s contention. The legislature has expressly authorized municipalities to restrict the location of sexually oriented businesses and to require that such businesses obtain a permit before operating. Texas Local Gov’t Code Ann. secs. 243.003(a) and 243.007 (Vernon 1988). The Code provides that sexually oriented businesses may be:

(1) restricted to particular areas; or

(2) prohibited within a certain distance of a school, regular place of religious worship, residential neighborhood, or other specified land use the governing body of the municipality or county finds to be inconsistent with the operation of a sexually oriented business.

Tex.Local Gov’t Code Ann. sec. 243.006(a) (Vernon 1988). Cities may also restrict the density of such businesses. Tex.Local Gov’t Code Ann. see. 243.006(b) (Vernon 1988).

Appellant alleges in her brief that “the City of Houston ordinance is a general regulatory ordinance governing various aspects of the operations of sexually oriented businesses (the ‘enterprises’) within the municipality. The ordinance provides a comprehensive system for the issuance, denial, renewal and revocation of permits for the operation of such enterprises in the City of Houston. The ordinance provides that a permit will issue if it meets certain conditions enumerated in section 28-125 involving location and the types of signs, exterior painting, lights, and pictorial representations to be used on the premises, among other things. It further provides for enforcement of the ordinance by creating criminal liability for violations of certain specific sections of the ordinance.”

According to appellant’s brief, the proscribed conduct is clearly defined in the ordinance by the use of the words, “It shall be unlawful....” The ordinance makes it unlawful to (1) operate an enterprise without a permit (section 28-122(a)); (2) operate without the permit posted within the enterprise (section 28-122(b)); (3) counterfeit, forge, change, deface, or alter a permit (section 28 — 128(b)); (4) allow merchandise or activities to be visible from outside the enterprise (section 28-129(a)); allow certain types of lights and pictorial representations to be used on the exterior of the enterprise (section 28 — 129(b)); (5) allow certain types of exterior painting (section 28-129(c)); (6) allow certain types of exterior signs (section 28-130(a)); (7) allow persons younger than seventeen years of age to be on the premises section 28-131(a).

The appellant further alleges that the criminal penalties for violations of the above-enumerated regulations are set out in section 28-133 of the ordinance, which states that:

Violation of any provision of this article that is not otherwise punishable pursuant to Article 2372w, Texas Revised Civil Statutes, as amended, shall be punishable by a fine of not less than one hundred fifty dollars ($150.00) nor more than two hundred dollars ($200.00) ...

Under the provisions of the Local Government Code, the city of Houston is authorized, in deciding whether to issue a permit to a sexually oriented business, to determine whether the enterprise complies with the location requirements set forth in its ordinance. See Memet v. State, 642 S.W.2d 518, 522 (Tex.App.—Houston [14th Dist.] 1982, pet. ref’d).

We conclude that the Houston city ordinance was adopted pursuant to the authority of chapter 243 of the Local Government Code, and, therefore, that the violation of its location requirements is punishable as a class B misdemeanor. See State v. Coleman, 757 S.W.2d 127 (Tex.App.-Houston [1st Dist.] 1988, pet. ref’d).

We accordingly hold that the county criminal court at law had jurisdiction over the offense alleged, and we overrule the first point of error.

In her second point of error, appellant asserts the trial court assessed punishment exceeding the maximum punishment applicable to the offense. She argues that, because the information did not contain an allegation about the location of the offense, the offense is punishable by a fine only. In support of her position, she cites Smith v. State, 573 S.W.2d 546 (Tex.Crim.App.1978).

In Smith, the Court of Criminal Appeals held that an indictment alleging theft of property valued at more than $200 was not fundamentally defective for failure to specify the upper limits of the property’s value. The court stated, however, that the defendant could not be convicted of theft of a higher degree than the offense charged. Smith, 573 S.W.2d at 547. Here, appellant argues that the failure of the information to allege a location-related violation requires the court to impose the lesser penalty, i.e., a fine only, for the offense charged.

As the State correctly points out in its motion for rehearing, appellant failed to present a motion to quash or otherwise object to the information, either at the time of or before trial. Moreover, appellant does not challenge the sufficiency of the evidence showing a location offense. Indeed, a police officer testified, without objection, that the permit had been denied because, among other reasons, the applicant’s business violated the location requirements of the ordinance.

A related argument, asserted by appellants for the first time on appeal, in her second point of error, is that the alleged defect in the information, i.e., the absence of an allegation charging a location violation, constitutes fundamental error.

A defendant who does not object to a defect, error, or irregularity of form or substance in an indictment or information, before the date on which the trial on the merits commences, waives and forfeits the right to object thereto on appeal, or in any other post-conviction proceeding. Tex. Code Crim.P.Ann. art. 1.14(b) (Vernon Supp.1989); see also Gabriel v. State, 756 S.W.2d 68, 70 (Tex.App.—Houston [1st Dist.] 1988, no pet.). We hold that the State’s failure to specifically allege a location violation in the information constitutes a defect that appellant was required to raise by an objection. Otherwise, the defect was waived. Tex.Code Crim.P.Ann. art. 1.14(b) (Vernon Supp.1989). We accordingly overrule appellant’s second and third points of error.

We finally consider an issue which was not asserted by appellant in the trial court, nor assigned as an error on this appeal, but raised only by the dissent as an unassigned error. This issue is whether the trial court properly considered the Houston city ordinance as a basis for the conviction.

The Houston city ordinance was not formally introduced into evidence, and, therefore, it is not in the record before us. A city of Houston police officer testified, however, without objection, about provisions of the ordinance relating to sexually oriented businesses. The officer testified that he had brought a copy of the ordinance with him to court, and, without objection from appellant, he quoted certain relevant provisions from the ordinance. He also explained the procedural aspects of processing permit applications under the ordinance. He further testified, from records in his possession, that the commercial enterprise in question had been denied a permit, and stated that its appeal from such denial had been rejected. The officer explained that the permit had been denied because, among other reasons, the applicant’s business was located within 1,000 feet of another previously established sexually oriented enterprise.

We note that appellant made no complaint, either in the trial court or on this appeal, about the court’s consideration of the applicable provisions of the ordinance. Indeed, appellant cites several applicable portions of the ordinance in her brief. Pri- or to the prompting of the dissent in its original opinion, there was no dispute whatsoever about the applicable provisions of the ordinance.

The dissent argues that we must reverse the conviction because of the Texas Court of Criminal Appeals decision in Howeth v. State, 645 S.W.2d 787 (Tex.Crim.App.1983), and this Court’s earlier decision in Martin v. State, 731 S.W.2d 630, 631 (Tex.App.—Houston [1st Dist.] 1987, pet. ref'd).

Howeth, decided before the 1986 adoption of the Rules of Criminal Evidence (including Rule 204 on judicial notice), specifically restricted its holding to convictions in municipal court followed by trial de novo in county court at law. Our case is not a trial de novo, but originated in the county court at law. Further, unlike our case, the How-eth opinion notes that “the record of the appeal is as bare as Mother Hubbard’s cupboard concerning what.the ‘contents’ of the ordinance might be.” Howeth, 645 S.W.2d at 789. Here, the police officer testified without objection about the contents of the ordinance, and appellant refers to applicable portions of the ordinance in her brief.

Martin is distinguishable for several reasons, but most importantly, because the defendant in that ease did raise the objection in the trial court and also asserted the point on appeal. Thus, in Martin, not only did the trial court have an opportunity to consider and rule on the objection, but the issue also was properly preserved for this Court’s review by a point of error on appeal. The circumstances in Martin are materially different from the state of the record in this case, and, contrary to the arguments presented by the dissent, we conclude that the trial court’s conviction must be upheld.

The State’s motion for rehearing is granted, appellant’s motion for rehearing is denied, and the judgment of the trial court is affirmed.

O’CONNOR, J., dissents.