Mayo v. State

877 S.W.2d 385, 1994 Tex. App. LEXIS 1097, 1994 WL 178278
CourtCourt of Appeals of Texas
DecidedMay 12, 1994
DocketNo. 01-93-00566-CR
StatusPublished
Cited by9 cases

This text of 877 S.W.2d 385 (Mayo v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mayo v. State, 877 S.W.2d 385, 1994 Tex. App. LEXIS 1097, 1994 WL 178278 (Tex. Ct. App. 1994).

Opinion

OPINION

OLIVER-PARROTT, Chief Judge.

The trial court found appellant, Amos Newton Mayo, guilty of operating a sexually oriented business without a permit and assessed punishment at six-months confinement, probated for one year, and a $500 fine. We affirm.

Facts

On February 12,1993, Houston Police Officer D.B. Ramsey investigated a video store at 826 Edgebrook in Houston for a possible violation of the city of Houston sexually oriented business ordinance. Officer Ramsey determined that the video store did not have an application or permit with the city of Houston authorizing it to operate a sexually oriented business.

When Ramsey arrived at the store, he saw a sign on the door prohibiting anyone under 18 years from entering the store. Ramsey entered the store and noticed appellant working behind the counter in the back of the store. Appellant was the only employee in the store. In the front of the store, Ramsey saw shelves displaying videos for rent or sale at the store. The video cases displayed in the front of the store were not sexually explicit videos. However, just past the front of the store, the video cases displayed were for sexually explicit videos. These video eases showed nudity and sexual acts on their covers.

[387]*387Ramsey counted the number of videos in the store that were sexually explicit and the number of videos that were not. He determined 75 to 80 percent of all videos on display were sexually explicit. Behind the counter where appellant was working, Ramsey saw the shelves containing the actual adult videos. He asked appellant if the sexually explicit videos were for sale and rent, and appellant replied that they were.

Ramsey identified himself as a police officer and asked appellant if the store had a permit to operate a sexually oriented business. Appellant replied he did not know. Ramsey looked for a permit in the store but did not find one. Appellant was then arrested.

Sufficiency of the evidence

In points of error one and two, appellant contends the trial court erred in finding him guilty because (1) there was no evidence that he personally displayed merchandise, goods, entertainment, or other services offered at the store, and (2) there was no evidence that the video boxes contained any merchandise, goods, or entertainment.

(a) Standard of review

When reviewing the sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict to determine if 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, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 163 (Tex.Crim.App.1991). If there is evidence that establishes guilt beyond a reasonable doubt, and the trier of fact believes that evidence, we are not authorized to reverse the judgment on sufficiency of the evidence grounds. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988).

(b) City ordinance

The legislature has authorized municipalities to adopt certain regulations regarding sexually oriented businesses. Tex.Local Gov’t Code Ann. § 243.003(a) (Vernon Supp. 1994); Smith v. State, 866 S.W.2d 760, 762 (Tex.App.—Houston [1st Dist.] 1993, pet. ref'd). The definition of “sexually oriented business” includes adult video stores. Tex.Local Gov’t Code Ann. § 243.002 (Vernon Supp.1994). A municipality may require that the owner or operator of a sexually oriented business obtain a permit for the operation of the business. Tex.Local Gov’t Code Ann. § 243.007(a) (Vernon Supp.1994).

Pursuant to these provisions of the Local Government Code, the city of Houston has promulgated an ordinance governing sexually oriented businesses. Smith, 866 S.W.2d at 763. The ordinance requires anyone owning, operating, or conducting any business in an “enterprise” located within the city to have a permit for the enterprise, and to post the permit at or near the enterprise’s entrance. Houston, Tex., Municipal Code § 28-122(a), (b). The ordinance states that a person will be deemed conducting a business in an enterprise if that person, among other things, operates a cash register on the premises, or displays or takes orders from any customer for any merchandise, goods, or entertainment. Id. at § 28-121.

(c) The evidence

The information charging appellant tracked the language in section 28-122(a) of the ordinance:

[I]n Harris County, Texas, Amos Newton Mayo, hereafter styled the Defendant, heretofore on or about February 12, 1993, did then and there unlawfully intentionally and knowingly display merchandise, goods and entertainment offered on the enterprise premises, in a sexually oriented commercial enterprise, namely, an adult video store ...

The ordinance does not define “display” in the context of conducting a business in an enterprise. However, we shall construe the word “display” according to rules of grammar and common usage. Tex.Gov’t Code Ann. § 311.011(a) (Vernon 1988).

Appellant contends the evidence shows that he did not physically pick up the video boxes and personally display them on the store’s shelves and that the boxes on display did not contain any entertainment or merchandise inside. He contends that to find [388]*388him guilty, the evidence must show that he personally put the sexually explicit videos on display and that the boxes contained the videos inside. We disagree that the ordinance requires such a narrow construction.

Officer Ramsey testified that he did not see appellant physically pick up the video boxes but that the boxes were on display in the store, and appellant had care, custody, and control of the store and its videos. He also testified that the video tapes were visible from behind the counter. Appellant testified that when a customer wishes to rent or buy a sexually explicit video, the customer brings the video box to the counter, and he selects the video from the shelves behind the counter that matches the customer’s selection. Appellant testified that the boxes for sexually explicit videos are displayed in the store. He also testified that the video boxes are empty to prevent shoplifting but that the boxes on display in the store are used to rent and sell the video tapes behind the counter.

The evidence shows that sexually explicit videos were displayed in the store; appellant was the only employee in the store; and he was in control of the store and the sexually explicit videos located behind the counter. We find this evidence sufficient to support the trial court’s finding of guilt.

We overrule points of error one and two.

Constitutionality of Statute

In his next three points of error, appellant argues that the ordinance is unconstitutional.1 First, appellant contends that the ordinance is unconstitutionally vague because it does not define the term “primary business.”

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Cite This Page — Counsel Stack

Bluebook (online)
877 S.W.2d 385, 1994 Tex. App. LEXIS 1097, 1994 WL 178278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mayo-v-state-texapp-1994.