                                                                                ACCEPTED
                                                                           03-14-00538-CR
                                                                                  4584067
                                                                 THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                                                                      3/20/2015 3:01:06 PM
                                                                         JEFFREY D. KYLE
                                                                                    CLERK


                          No. 03-14-00538-CR
                                                     FILED IN
                                              3rd COURT OF APPEALS
IN THE COURT OF    APPEALS FOR THE THIRD JUDICIAL    DISTRICT
                                                  AUSTIN,  TEXAS
                      OF TEXAS, AT AUSTIN     3/20/2015 3:01:06 PM
                                                JEFFREY D. KYLE
                                                      Clerk
                           Gary Don Ray
                               Appellant

                                   v.

                         The State of Texas
                                Appellee

On Appeal from the 452nd District Court of McCulloch County in Cause No.
        5840; the Honorable Robert R. Hofmann, Judge Presiding



                      State’s Brief
                             Submitted by:

                       Tonya Spaeth Ahlschwede
                 District Attorney, 452nd District Court
                           Post Office Box 635
                           Mason, Texas 76856
                          eMail: tsa@452da.net
                            Tel: 325-347-8400
                           Fax: 325-347-8404
                      State Bar Card No. 24025656

               Oral Argument Conditionally Requested
                           Identity of Parties and Counsel
         Pursuant to the Rules of Appellate Procedure (“Tex.R.App.Pro.”), the following is a complete
list of the names and addresses of all parties to the trial court’s final judgment and their counsel in
the trial court, as well as appellate counsel, so the members of the Court may at once determine
whether they are disqualified to serve or should recuse themselves from participating in the decision
of the case and so the Clerk of the Court may properly notify the parties to the trial court’s final
judgment or their counsel, if any, of the judgment and all orders of the Court of Appeals.

                                           Appellant
                                         Gary Don Ray
               Trial Counsel                                      Appellate Counsel
            Jason Johnson                                       M. Patrick Maguire
            SBN 24029637                                          SBN 24002515
          Genetha Chastain                                       945 Barnett Street
            SBN 24036356                                       Kerrville, Texas 78028
           600 N. Fisk Ave.
       Brownwood, Texas 76801

                                        State of Texas
                                Tonya Spaeth Ahlschwede
                          District Attorney, 452nd District Court
                                    Post Office Box 635
                                    Mason, Texas 76856
               Trial Counsel                                      Appellate Counsel
           Tonya Ahlschwede                                     Tonya Ahlschwede
             SBN 24025656                                         SBN 24025656
             Steve Lupton
             SBN 12699700




                                                   i
                                          Table of Contents

Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement of the Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Issues Presented in Appellant’s Brief.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Note About Abbreviations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Appellant’s Point of Error Restated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

        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.

The State’s Counter Point. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

        The Evidence Was Legally Sufficient to Support the Judgment of
        Conviction.

Facts Relevant to Counter-Point. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Summary of the State’s Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Argument & Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Certificate of Compliance and Delivery.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
                                                          ii
                                 Index of Authorities

Federal Cases:
Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972). . . . . . . . 16

Hayward v. Day, 446 U.S. 969 (1980).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Hayward v. Day, 619 F.2d 716 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 7

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). . . . . . . . . . . . . . . . 16

United States v. Albertini, 472 U.S. 675 (1985). . . . . . . . . . . . . . . . . . . . . . 11

United States v. Erickson, 459 U.S. 853 (1982). . . . . . . . . . . . . . . . . . . . . . 10

United States v. Erickson, 676 F.2d 408 (1982). . . . . . . . . . . . . . . . . . . . . . 10

United States v. McCarty, 456 U.S. 991 (1982). . . . . . . . . . . . . . . . . . . . . . 10

United States v. McCarty, 665 F.2d 596 (5th Cir. 1982). . . . . . . . . . . . . . . . 10

United States v. Smith, 449 U.S. 868 (1980).. . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Smith, 618 F.2d 280 (5th Cir. 1980). . . . . . . . . . . . . . . . . . 10


Texas Cases:
Anthony v. State, 209 S.W.3d 296
    (Tex.App - Texarkana 2006). . . . . . . . . . . . . . . . . . . . . 13, 14, 16, 18, 19

Bader v. State, 15 S.W.3d 599 (Tex.App. - Austin 2009). . . . . . . . . . . . . . . . 6

Brooks v. State, 323 S.W.3d 893 (Tex.Cr.App. 2010). . . . . . . . . . . . . . . . 4, 7

Curry v. State, 910 S.W.2d 490 (Tex.Cr.App. 1995). . . . . . . . . . . . . . . . . . 20

                                              iii
                                 Index of Authorities
                                          (CONT)

Texas Cases (CONT):
Dewberry v. State, 4 S.W.3d 735 (Tex.Cr.App. 1999). . . . . . . . . . . . . . . . . . 5

Ex parte Granviel, 561 S.W.2d 503 (Tex.Cr.App. 1978). . . . . . . . . . . . . . . 18

Ex parte Montgomery, 894 S.W.2d 324 (Tex.Cr.App. 1995). . . . . . . . . . . . 16

Gollihar v. State, 46 S.W.3d 243 (Tex.Cr.App. 2001). . . . . . . . . . . . . 4, 5, 20

Hooper v. State, 214 S.W.3d 9 (Tex.Cr.App. 2007). . . . . . . . . . . . . . . . . . . . 5

Johnson v. State, 364 S.W.3d 292 (Tex.Cr.App. 2012). . . . . . . . . . . . . . 5, 20

Karenev v. State, 281 S.W.3d 428 (Tex.Cr.App. 2009).. . . . . . . . . . . . . 19, 20

Madden v. State, 799 S.W.2d 683 (Tex.Cr.App. 1990).. . . . . . . . . . . . . . . . 20

Malik v. State, 953 S.W.2d 234 (Tex.Cr.App. 1997). . . . . . . . . . . . . . . . 5, 20

Roberson v. State, 420 S.W.3d 832 (Tex.Cr.App. 2013).. . . . . . . . . . . . . 5, 20

Univ. of Texas Med. Sch. at Houston v. Than,
     901 S.W.2d 926 (Tex. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Williams v. State, 937 S.W.2d 479 (Tex.Cr.App. 1996). . . . . . . . . . . . . . . . 20

Wilson v. State, 448 S.W.3d 418 (Tex.Cr.App. 2014. . . . . . . . . . . . . . . . . . . 4

Yoc-H v. State, No. 07-13-00222-CR
    (Tex.App - Amarillo, April 28, 2014) . . . . . . . . . . . . . . . . . . . . . . 17, 18




                                              iv
                               Index of Authorities
                                           (CONT)

Texas Statutes / Codes:
    Penal Code

         Section 30.05. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

         Section 30.05(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

         Section 30.05(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

         Section 30.05(b)(2)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7




                                                v
                          Statement of the Case

     The following is a brief general statement of the nature of the cause or

offense:

     Appellant was charged by information with the offense of Criminal
     Trespass of a Habitation (CR 11). Appellant pled not guilty to a jury
     on July 21, 2014 (RR Vol. 3, P. 31). The jury found Appellant guilty
     (RR Vol. 4, P. 266). The trial court sentenced Appellant to 270 days
     in the McCulloch County Jail and assessed a $4,000 fine (RR Vol. 4,
     P. 294; CR 248). Appellant timely filed his notice of appeal.

                 Issues Presented in Appellant’s Brief

     The following are the points upon Appellant has predicated his appeal:

     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.

                 Statement Regarding Oral Argument

 The State requests oral argument only if Appellant is granted oral argument.

                       Note About Abbreviations

     In this brief, the State refers to the Clerk’s Record as “CR” followed by the
appropriate page: e.g., “(CR 123).” The State refers to the Reporter’s Record as
“RR” followed by the volume, page and line numbers: e.g., “(RR Vol. 3, P. 47,
L. 12-15).

                                       vi
                             No. 03-14-00538-CR
IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT
                   OF TEXAS, AT AUSTIN
                               Gary Don Ray
                                   Appellant
                                       v.
                             The State of Texas
                                   Appellee
On Appeal from the 452nd District Court of McCulloch County in Cause No.
        5840; the Honorable Robert R. Hofmann, Judge Presiding



                         State’s Brief
TO THE HONORABLE THIRD COURT OF APPEALS:

     COMES NOW, the State of Texas, Appellee in the above styled and

numbered cause, by and through her duly elected District Attorney, and

respectfully files the State’s Brief, and would show the Court as follows:

                             Statement of Facts

     In November 2012, Brady Hospital CEO Tim Jones wrote a letter to

Appellant and others saying that the hospital was not going to continue the

“temporary charity adjustment” by which certain fees were paid (RR Vol. 3, P.

51). People who got that letter also got a letter stating that they would have to

                                       1
apply for the indigent care program (RR Vol. 3, P. 51), and that this change was

effective January 1, 2013 (RR Vol. 3, P. 51). Appellant continued to get the

allergy shots he had been receiving, but which had been paid for by the charity

plan, even after the effective date of the letter (RR Vol. 3, P. 52).

       On September 13, 2013, Appellant entered the hospital and had a

confrontation with Mr. Jones, which left Mr. Jones shaken (RR Vol. 3, PP. 52-

53). During this confrontation, Appellant made a pistol like gesture, which Jones

took as a threat. Jones called the police and discussed the situation with Chief

Derrick (RR Vol. 3, P. 53).

       Appellant was issued a Criminal Trespass Warning directing him not to

enter the hospital unless for medical emergencies (RR Vol. 4, PP. 12, 221; (RR

Vol. 5, P. 7). Nevertheless, he returned to the hospital on October 2, 2013, as an

intentional act of “civil disobedience” (RR Vol. 4, P. 222), and was arrested (RR

Vol. 3, P. 59; RR Vol. 4, P. 17). He said nothing when arrested (RR Vol. 3, P.

59).

       Appellant returned to the hospital on October 3, 2013, was arrested again

(RR Vol. 3, PP. 59-60; RR Vol. 4, P. 15). When Appellant bonded out from the

arrest on the 2nd, he had been warned by the judge who conducted the


                                         2
magistration, to not return to the hospital (RR Vol. 4, PP. 16-17). The written

warning given to Appellant stated that he would not be denied needed medical

assistance (RR Vol. 3, P. 60), and, prior to both arrests, Appellant was asked

whether there was an emergency. On both occasions, he denied any medical

reason for the violation of the trespass warning (RR Vol. 4, PP. 15, 31).

                  Appellant’s Point of Error Restated

   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.

                        The State’s Counter Point

    The Evidence Was Legally Sufficient to Support the Judgment of
                            Conviction.

                    Facts Relevant to Counter-Point

     The State relies on its statement of facts set out herein, as well as additional

facts set out within the argument as necessary.




                                         3
                   Summary of the State’s Argument

      The sufficiency of the evidence is measured against the charging instrument

and a hypothetically correct jury charge for the offense charged. When measured

in this manner, the evidence is more than sufficient to support the jury’s finding

of guilt.

                         Argument & Authorities

      Appellant challenges the sufficiency of the evidence to support the

conviction for criminal trespass of a habitation. When reviewing a challenge to

the legal sufficiency of the evidence to establish the elements of a penal offense,

it must be determined whether, after viewing all the evidence in the light most

favorable to the verdict, any rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 318-319 (1979); see also Brooks v. State, 323 S.W.3d 893, 895

(Tex.Cr.App. 2010); Wilson v. State, 448 S.W.3d 418, 425 (Tex.Cr.App. 2014.

      The Due Process Clause protects an accused against conviction except upon

proof beyond a reasonable doubt of every fact necessary to constitute the crime

with which he is charged. Gollihar v. State, 46 S.W.3d 243 (Tex.Cr.App. 2001).

Sufficiency of the evidence is measured by the elements of the offense as defined


                                        4
by a hypothetically correct jury charge. Roberson v. State, 420 S.W.3d 832, 840

(Tex.Cr.App. 2013); see also Johnson v. State, 364 S.W.3d 292, 294

(Tex.Cr.App. 2012); Gollihar, 46 S.W.3d at 245; Malik v. State, 953 S.W.2d

234, 235 (Tex.Cr.App. 1997). The hypothetically correct jury charge “sets out

the law, is authorized by the indictment, does not unnecessarily increase the

State’s burden of proof or unnecessarily restrict the State’s theories of liability,

and adequately describes the particular offense for which the defendant was

tried.” Johnson, 364 S.W.3d at 294.

      In reviewing the sufficiency of the evidence, the appellate court’s role is not

to substitute itself as a thirteenth juror. This Court may not re-evaluate the

weight and credibility of the record evidence and thereby substitute a judgment

for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Cr.App.

1999). Reviewing courts must give deference to “the responsibility of the trier

of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214

S.W.3d 9, 13 (Tex.Cr.App. 2007), quoting Jackson, 443 U.S. at 318-319.

      When an examination of all of the evidence in the light most favorable to

the verdict is made, as required, it is clear that the jury in the case at bar acted as


                                          5
rational triers of fact in finding the State proved all of the essential elements of

the offense.

      Appellant was prosecuted for, and convicted of, Criminal Trespass of a

Habitation, a Class “A” misdemeanor under Penal Code § 30.05. That statute

states:

      (a)   A person commits an offense if the person enters or remains on or in
            property of another, including residential land, agricultural land, a
            recreational vehicle park, a building, or an aircraft or other vehicle,
            without effective consent and the person:

            (1)   had notice that the entry was forbidden; or

            (2)   received notice to depart but failed to do so.

      The information charged that Appellant

      “did then and there intentionally or knowingly enter a habitation,
      namely Heart of Texas Health Care System, Brady, Texas 76825,
      without the effective consent of the said Tim Jones, acting for Heart
      of Texas Health Care System, and the said defendant had notice that
      the entry was forbidden . . .”

(CR 11). Thus, based on Penal Code § 30.05(a)(1) and the information in this

case, the State had to prove that Appellant Ø intentionally or knowingly, Ù

entered or remained in the Heart of Texas Care System, Ú after having received

notice that his entry was forbidden. See Bader v. State, 15 S.W.3d 599, 606

(Tex.App. - Austin 2009).



                                           6
     Through his testimony, Appellant admitted that:

 Ø He had been served with the criminal trespass warning on September
   27, 2013 (RR Vol. 4, P. 221).

  Ù He was arrested at the hospital on October 2 (RR Vol. 4, P. 221).

  Ú He returned as an act of civil disobedience (RR Vol. 4, P. 222).

  Û He returned to the hospital on the October 3, 2013, and was arrested
    again, all for the same reasons (RR Vol. 4, P. 223).

  ð He had received written notification not to return to the hospital (RR
    Vol. 4, P. 228).

Consequently, each and every element of the charged offense was admitted, and

the evidence was sufficient under the Jackson / Brooks standard.

     The notice requirement of the criminal trespass statute is set out in Penal

Code § 30.05(b)(2)(B), which states:

     (2) "Notice" means:
           (A)   oral or written communication by the owner or someone
                 with apparent authority to act for the owner;

           (B)   fencing or other enclosure obviously designed to
                 exclude intruders or to contain livestock;

           (C)   a sign or signs posted on the property or at the entrance
                 to the building, reasonably likely to come to the
                 attention of intruders, indicating that entry is forbidden;

           (D)   the placement of identifying purple paint marks on trees
                 or posts on the property, provided that the marks are:



                                          7
                  (i)    vertical lines of not less than eight inches in
                         length and not less than one inch in width;

                  (ii)   placed so that the bottom of the mark is not
                         less than three feet from the ground or more
                         than five feet from the ground; and
                  (iii) placed at locations that are readily visible to
                        any person approaching the property and no
                        more than:
                         (a)   100 feet apart on forest land; or
                         (b)   1,000 feet apart on land other than forest
                               land; or
            (E)   the visible presence on the property of a crop grown
                  for human consumption that is under cultivation, in
                  the process of being harvested, or marketable if
                  harvested at the time of entry.

     In this case, the evidence is absolutely clear that notice was given pursuant

to Penal Code § 30.05(A) (RR Vol. 4, PP. 12, 56, 221). Not only was written

notice served on Appellant (RR Vol. 4, PP. 56, 221), but he was also warned by

a magistrate after bonding out of custody for an arrest on October 2, 2013, that

he was forbidden to return to the hospital (RR Vol. 4, PP. 16-17).

     The jury was charged, consistently with Penal Code § 30.05 (A), that the

following was the definition of notice,

     "Notice" means oral or written communication by the owner or someone
     with apparent authority to act for the owner.

(CR 213).

                                          8
        That the statutory notice had been given is clear from the record. In spite

of receiving the notice Appellant made a willful and considered choice to violate

the order (RR Vol. 4, PP. 221–223). Appellant returned to the hospital on

October 2, 2013, as an act of civil disobedience and was arrested (RR Vol. 4, P.

221). He returned the next day, the date of the charged offense, for the same

reason, and was, again, arrested (RR Vol. 4, P. 223).

        In his brief Appellant states that he returned to the hospital because he

wanted someone to explain why he couldn’t go into the hospital for which he

paid taxes.1 He states that the issue at trial centered around whether there was

sufficient basis and authority for the issuance of a criminal trespass warning. The

State would respectfully disagree. The issue at trial was whether the Appellant

violated the statute as charged. Nevertheless, Appellant continues in his brief and

attempts to bring in several factors which, the State submits, have nothing to do

with an analysis of the sufficiency of the evidence.

        In his arguments, Appellant neglects those cases which show that those who

refuse to perform an act required by a statute, such as pay taxes, when they are

not asserting any misapprehension of the duty imposed by the statute, engage in


 1
     Appellant’s Brief, P. 13.

                                         9
a willful act, and they must suffer the penalties attending their act of civil

disobedience. United States v. Smith, 618 F.2d 280, 282 (5th Cir.), cert. denied,

449 U.S. 868 (1980). Those who believe, even in good faith, that the laws are

unconstitutional are willful violators of the law if they understand the obligations

the statute purports to impose upon them. United States v. McCarty, 665 F.2d

596, 597 (5th Cir.), cert. denied, 456 U.S. 991 (1982).

      One who believes a statute to be unconstitutional is entitled to challenge it

in court but disobeys it only at the risk of criminal penalties should the

constitutionality of the statute be upheld. A defendant's good faith belief that the

statute is unconstitutional does not negate the willfulness of his defiance of the

statute, and such a defendant is not entitled to a jury instruction that his belief in

the statute's unconstitutionality shields him from liability for willful violation of

the statute. McCarty, 665 F.2d at 597; United States v. Erickson, 676 F.2d 408,

411 (10th Cir.), cert. denied, 459 U.S. 853, 103 U.S. 118 (1982); Hayward v.

Day, 619 F.2d 716, 717 (8th Cir.), cert. denied, 446 U.S. 969 (1980).

      Appellant apparently believes that his several reasons for returning to the

hospital after receiving the notice not to do so are relevant. Without accepting




                                         10
that as true in any manner, the State would point out that there are several

problems with Appellant’s arguments, which occupy the large part of his brief.

     First, Appellant testified that his return was an act of civil disobedience, and

that he knew and was willing to serve jail time for his actions. His motivations

are, however, quite irrelevant. In a case involving a political protest at Hickham

Field in Hawaii, on a day the base was open to the public, the Supreme Court

wrote:

     Courts in applying criminal laws generally must follow the plain and
     unambiguous meaning of the statutory language. Garcia v. United States,
     469 U.S. 70, 75 (1984); United States v. Turkette, 452 U.S. 576, 580 (1981).
     "[O]nly the most extraordinary showing of contrary intentions" in the
     legislative history will justify a departure from that language. Garcia,
     supra, at 75. This proposition is not altered simply because application of
     a statute is challenged on constitutional grounds.

United States v. Albertini, 472 U.S. 675, 680 (1985). The statutory language,

thus, is consulted, notwithstanding the political, or other, motivations of the

offender.

     Additionally, the record is clear that Appellant was not seeking an

explanation for his exclusion. He sought to speak with no one. He was not

seeking an administrative remedy. He made no contact with anyone regarding

the trespass warning and asked no one for any explanation. Also, it is clear that




                                         11
no medical reason for his visit existed. He chose not to seek administrative

remedy but, rather, to intentionally violate the law (RR Vol. 4, PP. 221-223).

      Appellant argues that the evidence is somehow insufficient because there

was some question about whether or not the hospital administrator had the

authority to exclude a member of the public but this is nothing more than a rabbit

trail and a misstatement of the requirements of the law of trespass. That statute

requires notice in the form of oral or written communication by the owner or

someone with apparent authority to act for the owner, and the evidence brought

before the jury reflected that authority. That the hospital had a duty to the public

to provide medical care does not in any manner alter the law of trespass.

Appellant wasn’t seeking medical care, he was seeking to violate the law as an

act of civil disobedience. He wasn’t seeking arbitration of his billing issues, he

was seeking arrest.

      The State submits that whether the hospital was open to law abiding

citizens who legitimately sought medical assistance is entirely irrelevant to the

question of whether proper notice was given to Appellant that his re-entry to the

facility for all but medical emergencies was forbidden. Appellant freely admitted

that he made a gesture of a gun being aimed at Mr. Jones when he met with the


                                        12
hospital administrator on September 13, 2013, but stated that Mr. Jones must

have misunderstood his intent (RR Vol. 4, PP. 250-251). 2

       Appellant also argues that he had a protectible liberty interest because the

hospital was a public place and that, therefore, he had some type of right to a

hearing and an appeal before the decision was made to exclude him from the

premises. The State would first observe that, even if this were true, Appellant

would not have any type of right to go on premises and make threats of physical

violence toward people within the premises, nor would the fact that there was a

lack of such a procedure, which the State does not admit, justify violation of the

written notice. Secondly, the State would show that there is no record evidence

of any attempt on Appellant’s part or behalf to seek redress through

administrative means. In fact, the record clearly shows that Appellant’s decision

was not to appeal the decision but to violate the directive.

       The main authority upon which Appellant relies is inapposite. Anthony v.

State, 209 S.W.3d 296 (Tex.App - Texarkana 2006), involved trespass at a public

park. That Court first held that a facial challenge to a statute can be made for the



  2
      Appellant made no effort to explain his words, spoken to Mr. Jones in conjunction with his
representation of a pistol, “Are you sure you want to do that?” (RR Vol. 3, P. 94). The State would assert
Appellant made his intent clear.

                                                   13
first time on appeal. Appellant is not, however, making a facial challenge. He

does not argue that anytime notice is given sufficient to meet the statutory

requirements for exclusion from any property there must be due process

protections for the affected individual. Instead, he is arguing that the prohibition

of his particular entry onto this particular piece of property, due to its public

nature, must be accompanied by due process protections so that his rights as a

taxpayer may be preserved, or the evidence is insufficient to show a violation of

the statute.    This is an “as applied” argument.               The Anthony Court’s

pronouncements as to preservation are inapplicable to this case, in which it is

clearly shown that Appellant did not preserve his objections.

      Appellant also neglects that part of the Anthony opinion in which it is

pointed out that:

      in a plurality decision of the United States Supreme Court, Justices
      Stevens, Ginsburg, and Souter suggested that the freedom to loiter for
      innocent purposes is a fundamental right. See Chicago v. Morales, 527 U.S.
      41, 53-54, n. 20, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (Stevens, J., joined by
      Souter, J., and Ginsburg, J.) (plurality of United States Supreme Court
      held: "Freedom to loiter for innocent purposes is part of the `liberty'
      protected by the Due Process Clause" and suggesting there is fundamental
      right to loiter for innocent purposes).

Anthony, 209 S.W.3d at 305.

      Anthony involved a defendant’s peaceful use of a public park, and his

protectible interest in that peaceful use. A hospital, while open to the public, is

                                            14
not a public park, in which loitering is encouraged.           Any discussion of

Appellant’s so-called liberty interest must include the fact that he was not at the

facility for legitimate medical reasons, or even administrative reasons, but, rather,

to threaten, using gestures and words, those who worked therein. He was not

exercising his right to “loiter for innocent purposes.”

      Additionally, while Appellant suggests that there were no written policies

by which he could have challenged the decision to issue the trespass notice, the

record is clear that there were, at least to some extent, procedures which might

have been applicable but which were not attempted:
            Q. Mr. Jones, let me rephrase. I'm asking you a
            specific question. Mr. Ray had no way to appeal
            your decision to anyone at the Hospital, District
            Board, anywhere else, did he?

            A. Yes, sir. He did have an opportunity.

            Q. Who would he appeal it to?

            A. Could have been appealed to me. Could have been
            appealed to the Board. We have a Patient Grievance
            Committee.

            Q. Was there a written policy regarding how to
            appeal such a decision?

            A. Patient Grievance Committee. Yes, sir.

(RR Vol. 3, P. 163-164). While Appellant chose to ignore this answer and

concentrate on procedures specifically designed to deal with trespassers, the fact

remains that Appellant did have resort to the Patient Grievance Committee but

                                         15
he chose not to use it. He chose, instead, to violate the law as an act of civil

disobedience. That there was some method by which Appellant could have

challenged the decision to exclude him from the hospital for all but emergency

purposes has not been seriously challenged.

         Additionally, a procedural due process analysis is two-tiered. Not only

must there be a determination of whether the complaining party has a protected

liberty or property interest but there is the question of whether sufficient

procedural safeguards are employed to assure the deprivation is not arbitrary. See

Ex parte Montgomery, 894 S.W.2d 324, 327 (Tex.Cr.App. 1995); Anthony,

supra; Univ. of Texas Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929

(Tex. 1995), citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982);

and Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-570 (1972).

Given the availability of a Patient Grievance Committee, and Appellant was a

patient, any such liberty interest has been protected.

        In this regard, Appellant argues, “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.”3 The State would show that


 3
     Appellant’s Brief, P. 18.

                                        16
the exact opposite exists. Appellant entered and, during a discussion of a bill

which he had neglected, pointed his fingers in a pistol shape at the hospital

administrator and asked, “Are you sure you want to do that?” (RR Vol. 3, P. 94).

This was not only disruptive, but it may well have been an illegal threat.

     The State would also show that the record does not demonstrate how the

warning impaired defendant's pursuit of any medical needs. Appellant was not

excluded from the hospital for all purposes. He was merely warned that entering

the hospital except for emergency services, an undefined term which may well

have included his allergy shots, was forbidden. Appellant was not prevented

from using the hospital for those legitimate purposes and his interests in

obtaining medical care was never shown to have been affected. Thus, the type of

liberty interest recognized in Than was not infringed upon in this case.

     In Yoc-H v. State, No. 07-13-00222-CR (Tex.App - Amarillo, April 28,

2014)(not designated for publication), the Court of Appeals entertained a due

process challenge to the conviction based on very similar allegations as in the

case at bar. Before pleading guilty the defendant raised, by pre-trial motion, the

due process issues relating to the issuance of the trespass notice, and a hearing

was held. In contrast, Appellant in the case at bar made no effort to raise any


                                       17
constitutional issues he might have had, either at the time of the incidents or at

the time of his trial.

      There is no requirement within the statute for a hearing prior to issuing a

no trespass notice, either as to private or public property. In Yoc-H, the Court

assumed, arguendo, that the public nature of the Texas Woman’s University

campus presented a protectible liberty interest to go upon its property. Yoc-H,

slip op. at 4. That Court relied on the presumption that the legislature has not

acted unconstitutionally in passing statutes such as the trespass statute, and that

defendant had failed to show that there was no method by which he could appeal

the decision. Yoc-H, slip op. at 5-6. The party who challenges the

constitutionality of the statute on Due Process grounds has the burden of

demonstrating the scheme's unconstitutionality. Ex parte Granviel, 561 S.W.2d

503, 511 (Tex.Cr.App. 1978); Anthony, 209 S.W.3d at 303. Appellant’s reliance

on cases involving innocent use of public facilities are inapposite to the facts of

the case, which demonstrate that Appellant accessed the facility to confront the

Administrator, Mr. Jones, and that he threatened Jones while on the facility

grounds.




                                        18
     Appellant attempts to couch this case as a constitutional challenge (his act

of “civil disobedience”), but none of the issues he raises in this Court were

submitted to the jury. Appellant moved the trial court to direct a not-guilty

verdict on the basis of his constitutional rights, citing Anthony, supra (RR Vol.

4, PP. 151-172). He did not, however, request that the jury be given any

instruction which would allowed it to have implemented Appellant’s claim that

“the lack of a policy to determine who should be excluded from a public hospital

violates Appellant’s procedural due process rights.”

     Nothing in the court’s charge on guilt-innocence would have allowed the

jury to acquit Appellant if they believed his constitutional right to due process

was violated.    Additionally, when the trial court provided Appellant the

opportunity to modify the court’s charge as proposed, Appellant offered no

complaints:
     THE COURT: Any objections to the Charge on behalf of the
     Defendant?

     MR. JOHNSON: No, Your Honor.

RR Vol. 4, P. 268, L. 3-5.

     Whether Appellant’s purported constitutional challenge is considered a

“facial” or “as applied challenge, the claim was waived by Appellant’s failure to

properly raise the issue in the trial court. See Karenev v. State, 281 S.W.3d 428,
                                       19
434 (Tex.Cr.App. 2009)(holding that facial challenge to constitutionality of

statute is forfeitable right that is waived if defendant fails to raise it in trial court);

and Curry v. State, 910 S.W.2d 490, 496 (Tex.Cr.App. 1995)(holding that an

“as-applied challenge” was waived because the defendant did not specifically

object at trial). Further, to the extent that the issue might be interpreted as being

that the trial court should have granted Appellant’s motion for a directed verdict,

the case law makes very clear that a challenge to the denial of a motion for

directed verdict must be treated as a challenge to the sufficiency of the evidence.

See Williams v. State, 937 S.W.2d 479, 482 (Tex.Cr.App. 1996); Madden v.

State, 799 S.W.2d 683, 686 (Tex.Cr.App. 1990).

      In this case, the jury was asked, as required by Roberson, Johnson,

Gollihar, and Malik, whether

      . . . on or about the 3rd day of October 2013, in McCulloch County, Texas,
      the defendant, Gary Don Ray, did then and there intentionally and
      knowingly enter a habitation, namely Heart of Texas Healthcare System,
      Brady, Texas 76825, without the effective consent of the said Tim Jones,
      acting for the Heart of Texas Healthcare System, and the said defendant
      had notice that the entry was forbidden . . ..

That was the only question the jury was required to answer, and the only things

the State needed to prove. All other questions have been waived and are not

relevant to the sole issue before this Court, which is whether the evidence to

sustain the conviction is sufficient.

                                            20
                                  Conclusion
     Appellant admitted each and every element of the offense. Additionally,

the State presented independent evidence as to each element of the offense.

There was, therefore, sufficient evidence upon which the jury, as a rational trier

of fact, could rely in finding all of the required elements of the offense charged.

The evidence is sufficient, and the conviction should be affirmed.

                                     Prayer
     WHEREFORE, PREMISES CONSIDERED, the undersigned, on behalf

of the State of Texas, respectfully prays that this Honorable Court will review

this brief and upon submission of the case to the Court will affirm the judgment

and conviction of the court below.

                                   Respectfully submitted,

                                         /s/ Tonya Spaeth Ahlschwede

                                   Tonya Spaeth Ahlschwede
                                   District Attorney, 452nd District Court
                                   Post Office Box 635
                                   Mason, Texas 76856
                                   eMail: tsa@452da.net
                                   Tel: 325-347-8400
                                   Fax: 325-347-8404
                                   State Bar Card No. 24025656

                                   Attorney for the State of Texas




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                Certificate of Compliance and Delivery

     This is to certify that: (1) this document, created using WordPerfect™ X7

software, contains 4511 words, excluding those items permitted by Rule 9.4

(i)(1), Tex.R.App.Pro., and complies with Rules 9.4 (i)(2)(B) and 9.4 (i)(3),

Tex.R.App.Pro.; and (2) on March 20, 2015, a true and correct copy of the above

and foregoing “State’s Brief”was transmitted via the eService function on the

State's eFiling portal, to M. Patrick Maguire (mpmlaw@ktc.com), counsel of

record for the Appellant.

                                       /s/ Tonya Spaeth Ahlschwede


                                 Tonya Spaeth Ahlschwede




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