                                                                                ACCEPTED
                                                                           03-14-00538-CR
                                                                                  3823555
                                                                 THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                                                                     1/20/2015 11:26:41 AM
                                                                          JEFFREY D. KYLE
                                                                                    CLERK
              Court of Appeals No. 03-14-00538-CR
                  Trial Court Cause No. 5840
                                                          FILED IN
                                                   3rd COURT OF APPEALS
        IN THE THIRD SUPREME JUDICIAL        DISTRICT AUSTIN, TEXAS
                                                   1/20/2015 11:26:41 AM
                    COURT OF APPEALS                   JEFFREY D. KYLE
                                                            Clerk
                       AUSTIN, TEXAS

                   _______________________

                       GARY DON RAY

                              v.

                    THE STATE OF TEXAS
                   _______________________

  APPEALED FROM THE 452ND JUDICIAL DISTRICT COURT,
               MCCULLOCH COUNTY, TEXAS
             Honorable Robert R. Hofmann, Presiding
_____________________________________________________________

                     APPELLANT’S BRIEF
_____________________________________________________________

                               M. Patrick Maguire
                               State Bar No. 24002515
                               M. Patrick Maguire, P.C.
                               mpmlaw@ktc.com
                               945 Barnett Street
                               Kerrville, Texas 78028
                               Telephone (830) 895-2590
                               Facsimile (830) 895-2594

                               ATTORNEY FOR APPELLANT,
                               GARY DON RAY

               ORAL ARGUMENT REQUESTED
                         TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL                                        2

INDEX OF AUTHORITIES                                                 4

STATEMENT OF THE CASE                                                6

ISSUES PRESENTED                                                     7

SUMMARY OF THE ARGUMENTS                                             8

CERTIFICATE OF COMPLIANCE WITH TRAP 9.4                              9

STATEMENT OF FACTS                                                   10

ARGUMENTS & AUTHORITIES                                              11

ISSUE 1: The lack of a policy to determine who should be excluded from
a public hospital violates Appellant’s procedural due process rights.
Therefore, Appellant’s conviction should be reversed and a judgment of
acquittal rendered because the evidence is legally insufficient to support a
conviction for criminal trespass.                                     11

PRAYER FOR RELIEF                                                    19

CERTIFICATE OF SERVICE                                               20




                                     1
                  Court of Appeals No. 03-14-00538-CR
                      Trial Court Cause No. 5840

             IN THE THIRD SUPREME JUDICIAL DISTRICT

                           COURT OF APPEALS

                             AUSTIN, TEXAS

                          _______________________

                              GARY DON RAY

                                     v.

                    THE STATE OF TEXAS
_____________________________________________________________

              IDENTITY OF PARTIES & COUNSEL
_____________________________________________________________

Appellant certifies that the following is a complete list of the parties,
attorneys, and any other person who has any interest in the outcome of
this appeal:

Appellant:                      Gary Don Ray

Appellee:                       The State of Texas

Attorney for Appellant:         M. Patrick Maguire
                                M. Patrick Maguire, P.C.
                                945 Barnett Street
                                Kerrville, Texas 78028

Attorney for Appellee:          Hon. Tonya Spaeth Ahlschwede
                                452nd Judicial District Attorney
                                P.O. Box 635
                                Mason, Texas 76856




                                     2
Trial Judge:   Hon. Robert R. Hofmann
               452nd Judicial District Judge
               P.O. Box 1580
               Mason, Texas 76856




                     3
                      INDEX OF AUTHORITIES

                                 CASES

Anthony v. State, 209 S.W.3d 296
(Tex. App.—Texarkana 2006, no pet.)                              11,12,
                                                                 15-19

Bader v. State, 15 S.W.3d 599 (Tex. App.—Austin 2000, no pet.)   16

City of Chicago v. Morales, 527 U.S. 41 (1999)                   17

Luchak v. McAdams, 379 S.W.3d 361
(Tex. App.—Waco 2012, pet. dism’d)                               14

Purdin v. Copperas Cove Economic Development Corp.,
143 S.W.3d 290 (Tex. App.—Waco 2004, pet. dism’d)                14

Sanderson v. State, 2013 Tex. App. LEXIS 14617
(Tex. App.—Texarkana 2013, pet. denied) (unpublished opinion)    16




                                    4
                         STATUTES AND RULES

Tex. Penal Code §30.05                        11

Tex. Penal Code §1.07(40)                     15

U.S. Const. amend. XIV                        11




                                 5
                      STATEMENT OF THE CASE

      Appellant, Gary Don Ray, is appealing his conviction for the offense

of Criminal Trespass of a Habitation. Appellant pled not guilty to a jury on

July 21, 2014. RR 3, 31. The jury found Appellant guilty. RR 4, 266. The

trial court sentenced Appellant to 270 days in the McCulloch County Jail

and assessed a $4,000 fine. RR 4, 294. Appellant filed his notice of appeal

with the trial court on August 1, 2014. This brief is timely filed by being

electronically filed with the Third Court of Appeals on January 20, 2015.




                                      6
             APPELLANT'S ISSUES PRESENTED FOR REVIEW

     I.      The lack of a policy to determine who should be excluded from a
             public hospital violates Appellant’s procedural due process rights.
             Therefore, Appellant’s conviction should be reversed and a
             judgment of acquittal rendered because the evidence is legally
             insufficient to support a conviction for criminal trespass.

**        For purposes of reference in the Appellant’s Brief the following will
          be the style used in referring to the record:

             1.    Reference to any portion of the Court Reporter’s Statement
                   of Facts will be denoted as “(RR____, ____),” representing
                   volume and page number, respectively.

             2.    The Transcript containing the District Clerk’s recorded
                   documents will be denoted as “(CR___, ___).”




                                         7
                   SUMMARY OF THE ARGUMENTS

   I.     Appellant was convicted of criminal trespass of a habitation for
entering upon the grounds of the Heart of Texas Healthcare System in
Brady, Texas. Heart of Texas Healthcare System is a public property
operated by a governmental entity. The Heart of Texas Healthcare System
does not have any trespass policy, written or unwritten, concerning when a
member of the public may be barred from these grounds. This is required in
order for a State actor to bar a citizen from such public property. The lack of
such a policy is a violation of Appellant’s procedural due process rights
which renders the evidence legally insufficient to support Appellant’s
conviction.




                                       8
                    CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

I certify that this brief contains 3,043 words (counting all parts of the

document and relying upon the word count feature in the software used to

draft this brief). The body text is in 14 point font and the footnote text is in

12 point font.

                                        /s/     M. Patrick Maguire
                                        M. Patrick Maguire,
                                        Attorney for Appellant




                                       9
                         STATEMENT OF FACTS

      Appellant was convicted by a jury of criminal trespass for entering

upon the property of the local hospital in Brady, Texas. On September 27,

2013, Appellant had gone to the hospital, which is a government-funded

building open to the public. RR 3, 99-101. Tim Jones, the CEO of the Heart

of Texas Healthcare System, did not have any evidence that Appellant went

into any “restricted” areas, although Mr. Jones “assumed” this to be the case.

RR 3, 101. Based upon past interactions with Appellant, wherein Appellant

complained about his hospital bill and allegedly made a threatening hand

gesture, Mr. Jones called the police. RR 3, 98. According to Mr. Jones, the

police chief suggested issuing a criminal trespass warning to Appellant to

prevent Appellant from coming onto the hospital property. RR 3, 103. Mr.

Jones executed a criminal trespass warning that was delivered to Appellant

at his home by a police officer.       RR 4, 13-14.     On October 3, 2013,

Appellant returned to the hospital. RR 4, 15. Appellant was immediately

arrested for criminal trespass. RR 4, 15.

      Although Mr. Jones testified that he executed the criminal trespass

warning out of a concern for the safety of the patients and staff of the

hospital, he stated that there were no written or unwritten policies in place at




                                       10
the time he executed the criminal trespass warning concerning how to deal

with trespassers. RR 4, 162.

                     ARGUMENTS & AUTHORITIES

                                     I.
 The lack of a policy to determine who should be excluded from a public
 hospital violates Appellant’s procedural due process rights. Therefore, a
  judgment of acquittal must be rendered because the evidence is legally
      insufficient to support a conviction for criminal trespass.

A.    Standard of Review

      A person commits the offense of criminal trespass if he enters or

remains on or in property, including an aircraft or other vehicle, of another

without effective consent or he enters or remains in a building of another

without effective consent and he had notice that entry was forbidden or

received notice to depart but failed to do so. Tex. Penal Code §30.05(a).

      The Due Process Clause of the United States Constitution provides

that a State shall not “deprive any person of life, liberty, or property without

due process of law.”      U.S. Const. amend. XIV.       Both substantive and

procedural due process require a protected liberty or property interest to be

deprived by state action. Anthony v. State, 209 S.W.3d 296, 303 (Tex.

App.—Texarkana 2006, no pet.). The first inquiry in every due-process

challenge is whether the complaining party has been deprived of a protected

interest in “property” or “liberty.” Id. The United States Supreme Court has



                                       11
held that “the right of locomotion, the right to remove from one place to

another according to inclination, is an attribute of personal liberty.” Id.

(citing Williams v. Fears, 179 U.S. 270, 274 (1900)).

      At a minimum, due process requires a person who may be deprived of

a liberty or property interest to be provided notice and an opportunity to be

heard in a meaningful time and in a meaningful manner. Anthony, 209

S.W.3d at 307.     In analyzing a claim of deprivation of procedural due

process, the Court applies a two-part test: (1) whether the plaintiff had a

liberty or property interest entitled to procedural due process; and (2) if so,

what process is due. Id. at 307.

      If a defendant’s procedural due process rights are violated as a result

of inadequate or vague procedures, then the procedures or policies fail to

give adequate notice of what conduct is prohibited, thus rendering the

evidence legally insufficient to support a conviction for criminal trespass.

Id. at 311.

B.    Analysis

      Appellant is a resident of Brady, Texas.          Appellant maintains a

website called “webitch4u.com” where Appellant frequently blogs about

local politics and speaks out against local corruption and certain community

leaders. RR 4, 99. Appellant’s blog also spoke out against the hospital’s



                                      12
board members and Tim Jones, the CEO of Heart of Texas Healthcare

System. RR 4, 99.

      The facts in Appellant’s case are fairly straightforward. Appellant did

not deny going to the hospital after receiving the criminal trespass warning.

In fact, Appellant testified that his act of returning to the hospital after

receiving the criminal trespass warning was an act of civil disobedience. RR

4, 222. Appellant wanted someone to explain to him why he couldn’t go to

a hospital that he pays taxes for. RR 4, 223. The issue at trial centered

around whether Mr. Jones, the hospital CEO, had sufficient basis and

authority to issue such a warning excluding a member of the public from a

public building that was funded by the government. It must be remembered

that there were no policies and procedures of any kind in place to guide Mr.

Jones, or any other member of the hospital board, in this situation. RR 3,

162-64.

      Mr. Jones was a state actor

      The record reflects that the hospital is operated by an elected board of

directors.   RR 3, 47.    Another public agency, the McCulloch County

Hospital District has responsibility for operating the hospital facilities. RR

3, 121. The hospital district is created pursuant to statute. RR 3, 118-120.

Under the law, the hospital is not permitted to turn people away. RR 3, 125-



                                      13
26. The hospital is a taxpayer-funded facility. RR 3, 128. Appellant had

been coming to the hospital every Friday for 4 to 5 years to get a shot that he

required. RR 3, 129-130. Appellant came to the hospital on September 13,

2013 to ask about a bill he had received for these services that previously

had been free. RR 3, 131-132. Mr. Jones claimed that Appellant became

very agitated and made what Mr. Jones described as a threatening hand

gesture. RR 3, 92-95. Prior to this incident, Mr. Jones had never had any

problem with Appellant. RR 3, 130.

      There is little debate that the hospital is a public facility and quasi-

governmental entity as that term is commonly understood. See Purdin v.

Copperas Cove Economic Development Corp., 143 S.W.3d 290, 301 (Tex.

App.—Waco 2004, pet. dism’d) (Observing that local entities of

government, such as hospital and special utility districts, have been found to

be “state instrumentalities.”); Luchak v. McAdams, 379 S.W.3d 361, 368

(Tex. App.—Waco 2012, pet. dism’d) (Hospital district is a governmental

unit). The hospital is overseen by a hospital district comprised of elected

board members. The day-to-day operations are run by a CEO who answers

to the hospital district board. As a result, the action in excluding Appellant

from the hospital is the result of State action. Therefore, the constitutional

due process requirements must be met.



                                      14
       The hospital had no policies regarding criminal trespass

       In order to exclude a citizen from such premises, there must be written

policies and procedures in place to avoid arbitrary exclusion. Anthony v.

State, 209 S.W.3d 296, 306-07 (Tex. App.—Texarkana 2006, no pet.).

Additionally, there must be a process to be heard. Id. In Appellant’s case,

there was none of this.     Mr. Jones had never had any problems with

Appellant in the past. RR 3, 130. Most of Mr. Jones’ issues came from

what he heard second-hand and without giving Appellant an opportunity to

respond. RR 3, 97-99; RR 3, 104-08; RR 3, 134; RR 3, 136-39; RR 3, 143-

44. Appellant had not done anything illegal or improper. Appellant had not

acted in a disruptive manner. There was no evidence that Appellant entered

into any restricted areas of the hospital not open to the general public. RR 3,

101.   There was no benchmark to determine whether someone else in

Appellant’s position would be treated differently or the same.

       Appellant had a liberty interest in being excluded from the hospital

       The Texas Penal Code defines a “public place” as any place to which

the public or a substantial group of the public has access and includes, but is

not limited to, streets, highways, and the common areas of schools,

hospitals, apartment houses, office buildings, transport facilities, and shops.

Tex. Penal Code §1.07(40). While the issue of whether the hospital is a



                                      15
public place may not be relevant to consideration under Section 30.05 of the

Penal Code (Criminal Trespass Statute), it is relevant in determining whether

Appellant has a liberty interest which invokes constitutional principles. It

should go without saying that Appellant, or any other citizen, has a liberty

interest in going into a local hospital.

      The ability of government to control access to its property is subject to

a framework that is applicable to all such efforts to limit access. See Bader

v. State, 15 S.W.3d 599, 605 (Tex. App.—Austin 2000, no pet.) (observing

that regulations restricting speech may consist only of reasonable time,

place, and manner regulations that are narrowly drawn to achieve the

governmental interest and leave ample alternative channels for expression).

      The burden is on Appellant to establish that any process is

constitutionally infirm. See Anthony, 209 S.W.3d at 303. Appellant has

carried this burden. The evidence unquestionably establishes that there were

no procedures, written or unwritten, governing Mr. Jones’ determination

under what circumstances someone would be excluded from the hospital.

Cf. Sanderson v. State, 2013 Tex. App. LEXIS 14617, 17 (Tex. App.—

Texarkana 2013, pet. denied) (unpublished opinion) (holding that University

of North Texas’s written policies and procedures detailing when a person

may be issued a criminal trespass warning, along with explicit appeal



                                           16
procedures, afforded the defendant with procedural due process).          The

“appeal” process in Appellant’s case was Mr. Jones himself, someone who

Appellant had admittedly alienated through Appellant’s blog. RR 3, 163-64.

This process constitutes no appeal because it is at the discretion of the same

person who issued the criminal trespass warning in the first place. There is

no independent review process of Mr. Jones’ decision.

      “[A]s the United States recognizes, the freedom to loiter for innocent

purposes is part of the ‘liberty’ protected by the Due Process Clause of the

Fourteenth Amendment.” City of Chicago v. Morales, 527 U.S. 41, 53

(1999). The United States Supreme Court has “expressly identified this

‘right to remove from one place to another according to inclination’ as ‘an

attribute of personal liberty’ protected by the Constitution.” Id. “Indeed, it

is apparent that an individual’s decision to remain in a public place of his

choice is as much a part of his liberty as the freedom of movement inside

frontiers that is ‘a part of our heritage’ . . ., or the right to move ‘to

whatsoever place one’s own inclination may direct.’” Id. at 54.

      What process is due?

      In determining what process is required, courts utilize a flexible

standard that depends on the practical requirements of the circumstances.

Anthony, 209 S.W.3d at 307. This flexible standard includes three factors:



                                      17
(1) the private interest that will be affected by the official action; (2) the risk

of an erroneous deprivation of such interest through the procedures used,

and the probable value, if any, of additional or substitute procedural

safeguards; and (3) the government’s interest, including the function

involved and the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail. Anthony, 209 S.W.3d at

307.

       Clearly, there is a private interest affected by the state action of

barring someone, under penalty of a criminal charge, from a publicly-funded

hospital that is a necessity in any community.           The risk of erroneous

deprivation of such interest in the lack of procedural safeguards is also

significant. In this case, Appellant did absolutely nothing disruptive or

illegal that would warrant his being banned from a taxpayer-funded building

that is open to the public.       The obvious issue is whether Appellant’s

blogging on political issues and being very outspoken on these issues, which

is a legitimate exercise of Appellant’s First Amendment rights, led to his

being banned by one of the individuals he was blogging about, Mr. Tim

Jones. Because there are no policies in place to determine when and under

what circumstances a person may be excluded from the public hospital, the




                                        18
issue becomes one of where one individual, Mr. Jones, can be the arbiter of

this issue.

       However, the analysis in this case is academic because the hospital

did not have any policies or procedures in place to deal with criminal

trespass issues as required by law. This is a blatant violation of Appellant’s

procedural due process rights.

                                 CONCLUSION

       The record is clear that there was no procedural due process afforded

Appellant prior to issuing the criminal trespass warning.      Based on the

foregoing argument and authorities, Appellant respectfully submits that

Appellant’s conviction in the above-referenced cause should be reversed and

a judgment of acquittal rendered. See Anthony v. State, 209 S.W.3d 296,

311 (Tex. App.—Texarkana 2006, no pet.).

                          PRAYER FOR RELIEF

       WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that this Honorable Court sustain the appellate contentions herein,

reverse the judgment of conviction in these cause and render a judgment of

acquittal.




                                      19
                                     Respectfully submitted,

                                     M. PATRICK MAGUIRE, P.C.


                                     /s/ M. Patrick Maguire
                                     M. Patrick Maguire
                                     State Bar No. 24002515
                                     945 Barnett Street
                                     Kerrville, Texas 78028
                                     Telephone (830) 895-2590
                                     Facsimile (830) 895-2594

                                     ATTORNEY FOR APPELLANT,
                                     GARY DON RAY




                     CERTIFICATE OF SERVICE

       I hereby certify that I have served a true and correct copy of
Appellant's Brief to counsel for the State, Hon. Tonya Spaeth Ahlschwede,
vie electronic transmission at tsa@452da.net, and whose address is P.O. Box
635, Mason Texas 76856, on this the 20th day of January, 2015.




                                     /s/ M. Patrick Maguire
                                     M. Patrick Maguire




                                    20
