DeDonato v. State

Court of Criminal Appeals of Texas

DeDonato v. State

819 S.W.2d 164, 1991 Tex. Crim. App. LEXIS 238, 1991 WL 226420

CourtCourt of Criminal Appeals of Texas

DecidedNovember 6, 1991

Docket630-90

StatusPublished

Cited by111 cases

This text of 819 S.W.2d 164 (DeDonato v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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DeDonato v. State, 819 S.W.2d 164, 1991 Tex. Crim. App. LEXIS 238, 1991 WL 226420 (Tex. 1991).

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OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

A county criminal court found Appellant, Linda Evon DeDonato, guilty of the Class B misdemeanor offense of conducting business at a sexually oriented commercial enterprise that did not have a permit. Appellant’s behavior violated a Houston city ordinance and Texas Local Government Code § 243.008(b). Punishment was assessed at confinement for three days and a fine of $250. See Tex.Penal Code § 12.22. The First Court of Appeals affirmed Appellant’s conviction. DeDonato v. State, 789 S.W.2d 321 (Tex.App. — Houston [1st Dist.] 1990). We granted Appellant's petition for discretionary review, pursuant to Texas Rule of Appellate Procedure 200(c)(5), in order to determine (1) whether the evidence was sufficient to support Appellant’s conviction and (2) whether the court of appeals erred in holding that Appellant waived any error with respect to the jurisdiction of the trial court. We will affirm the judgment of the court of appeals.

In her first ground for review, Appellant argues for the first time that the State failed to prove her guilt beyond a reasonable doubt as required by the due process clause of the Fourteenth Amendment. Appellant argues specifically that the State failed to prove that the conduct charged was in fact prohibited by any Houston ordinance or that the punishment imposed was permitted by law. See Howeth v. State, 645 S.W.2d 787 (Tex.Cr.App.1983) (failure to prove guilt beyond a reasonable doubt is fundamental error; State [166]*166must prove contents of city ordinance upon which prosecution is based); Lange v. State, 639 S.W.2d 304 (Tex.Cr.App.1982) (State must prove defendant’s conduct prohibited and punishable under ordinance). Appellant points out correctly that a copy of the ordinance was neither offered in evidence nor judicially noticed by the trial court. The State responds, however, by noting there was testimony before the trial court regarding all relevant portions of the ordinance. Our review of the record reveals that the State’s argument is well-taken.

Appellant was charged by information with

intentionally and knowingly delivering] and providing] to a customer merchandise, goods and entertainment offered 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.

A Houston police officer testified at trial that, at the time of the offense, the City had an ordinance regulating sexually oriented businesses; that the ordinance defined “sexually oriented businesses” to include adult lounges, i.e., bars in which some female employees worked with exposed breasts; that the ordinance prohibited the conduct of business at sexually oriented businesses lacking permits from the Houston police department; and that, under the ordinance, permits could be issued only to businesses that complied with several enumerated conditions involving location, color of building, etc.

It is clear that this testimony was sufficient to prove that the charged conduct was prohibited and punishable under the ordinance. It is also clear that the prosecution demonstrated adequately that the punishment sought was permitted by law. Under Chapter 243 of the Texas Local Government Code, it was, at the time of the offense, a Class B misdemeanor to conduct business in a sexually oriented business that had been denied a permit because of its location.¹ The evidence at Appellant’s trial established that her place of business had been denied a permit because of its location and color. Appellant’s first ground for review is overruled.

In her second, third, and fourth grounds for review, Appellant argues that the county court did not have subject matter jurisdiction of this cause because the information did not allege the reason her place of business was denied a permit. Because of this omission, Appellant argues, it was not possible for her or the trial court to discern from the information whether the offense charged was a Class B misdemeanor or a Class C misdemeanor. See Tex.Code Crim.Proc. arts. 4.07 and 4.14. Because the court of appeals’ opinion contains a lengthy discussion of Appellant's rather convoluted argument, we need not repeat it here. See DeDonato, 789 S.W.2d 321.

The essence of Appellant’s argument seems to be that jurisdiction was lacking because “the jurisdiction of the county court at law does not appear on the face of the charging instrument.” Appellant’s Brief at 12. No complaint regarding the information or jurisdiction was lodged in the trial court.

[167]*167The State’s principal response to Appellant’s argument is that it was waived under Article 1.14(b) of the Texas Code of Criminal Procedure. We agree.

Article 1.14(b) provides in relevant part: If the defendant 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, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding.

Article 27.08, in turn, provides in relevant part:

There is no exception to the substance of an indictment or information except:

******

4. That it shows upon its face that the court trying the case has no jurisdiction thereof.

We recognized last term that Article 27.-08(4) refers to situations in which the trial court allegedly lacks subject matter jurisdiction. Studer v. State, 799 S.W.2d 263, 267 fn. 7 (Tex.Cr.App.1990). Thus, under Article 1.14(b), Appellant was obligated to raise any such objection in the trial court, while there was still an opportunity to correct any problem. Because Appellant did not object in the trial court, she may not complain on appeal. Grounds for review two, three, and four are overruled.

The judgment of the court of appeals is affirmed.

CLINTON, J., dissents, being in substantial agreement with the dissenting opinion below regarding judicial notice.

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OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

A county criminal court found Appellant, Linda Evon DeDonato, guilty of the Class B misdemeanor offense of conducting business at a sexually oriented commercial enterprise that did not have a permit. Appellant’s behavior violated a Houston city ordinance and Texas Local Government Code § 243.008(b). Punishment was assessed at confinement for three days and a fine of $250. See Tex.Penal Code § 12.22. The First Court of Appeals affirmed Appellant’s conviction. DeDonato v. State, 789 S.W.2d 321 (Tex.App. — Houston [1st Dist.] 1990). We granted Appellant's petition for discretionary review, pursuant to Texas Rule of Appellate Procedure 200(c)(5), in order to determine (1) whether the evidence was sufficient to support Appellant’s conviction and (2) whether the court of appeals erred in holding that Appellant waived any error with respect to the jurisdiction of the trial court. We will affirm the judgment of the court of appeals.

In her first ground for review, Appellant argues for the first time that the State failed to prove her guilt beyond a reasonable doubt as required by the due process clause of the Fourteenth Amendment. Appellant argues specifically that the State failed to prove that the conduct charged was in fact prohibited by any Houston ordinance or that the punishment imposed was permitted by law. See Howeth v. State, 645 S.W.2d 787 (Tex.Cr.App.1983) (failure to prove guilt beyond a reasonable doubt is fundamental error; State [166]*166must prove contents of city ordinance upon which prosecution is based); Lange v. State, 639 S.W.2d 304 (Tex.Cr.App.1982) (State must prove defendant’s conduct prohibited and punishable under ordinance). Appellant points out correctly that a copy of the ordinance was neither offered in evidence nor judicially noticed by the trial court. The State responds, however, by noting there was testimony before the trial court regarding all relevant portions of the ordinance. Our review of the record reveals that the State’s argument is well-taken.

Appellant was charged by information with

intentionally and knowingly delivering] and providing] to a customer merchandise, goods and entertainment offered 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.

A Houston police officer testified at trial that, at the time of the offense, the City had an ordinance regulating sexually oriented businesses; that the ordinance defined “sexually oriented businesses” to include adult lounges, i.e., bars in which some female employees worked with exposed breasts; that the ordinance prohibited the conduct of business at sexually oriented businesses lacking permits from the Houston police department; and that, under the ordinance, permits could be issued only to businesses that complied with several enumerated conditions involving location, color of building, etc.

It is clear that this testimony was sufficient to prove that the charged conduct was prohibited and punishable under the ordinance. It is also clear that the prosecution demonstrated adequately that the punishment sought was permitted by law. Under Chapter 243 of the Texas Local Government Code, it was, at the time of the offense, a Class B misdemeanor to conduct business in a sexually oriented business that had been denied a permit because of its location.¹ The evidence at Appellant’s trial established that her place of business had been denied a permit because of its location and color. Appellant’s first ground for review is overruled.

In her second, third, and fourth grounds for review, Appellant argues that the county court did not have subject matter jurisdiction of this cause because the information did not allege the reason her place of business was denied a permit. Because of this omission, Appellant argues, it was not possible for her or the trial court to discern from the information whether the offense charged was a Class B misdemeanor or a Class C misdemeanor. See Tex.Code Crim.Proc. arts. 4.07 and 4.14. Because the court of appeals’ opinion contains a lengthy discussion of Appellant's rather convoluted argument, we need not repeat it here. See DeDonato, 789 S.W.2d 321.

The essence of Appellant’s argument seems to be that jurisdiction was lacking because “the jurisdiction of the county court at law does not appear on the face of the charging instrument.” Appellant’s Brief at 12. No complaint regarding the information or jurisdiction was lodged in the trial court.

[167]*167The State’s principal response to Appellant’s argument is that it was waived under Article 1.14(b) of the Texas Code of Criminal Procedure. We agree.

Article 1.14(b) provides in relevant part: If the defendant 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, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding.

Article 27.08, in turn, provides in relevant part:

There is no exception to the substance of an indictment or information except:

******

4. That it shows upon its face that the court trying the case has no jurisdiction thereof.

We recognized last term that Article 27.-08(4) refers to situations in which the trial court allegedly lacks subject matter jurisdiction. Studer v. State, 799 S.W.2d 263, 267 fn. 7 (Tex.Cr.App.1990). Thus, under Article 1.14(b), Appellant was obligated to raise any such objection in the trial court, while there was still an opportunity to correct any problem. Because Appellant did not object in the trial court, she may not complain on appeal. Grounds for review two, three, and four are overruled.

The judgment of the court of appeals is affirmed.

CLINTON, J., dissents, being in substantial agreement with the dissenting opinion below regarding judicial notice.

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819 S.W.2d 164, 1991 Tex. Crim. App. LEXIS 238, 1991 WL 226420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dedonato-v-state-texcrimapp-1991.

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