




Reversed and Remanded and Opinion filed October 3, 2006







Reversed
and Remanded and Opinion filed October 3, 2006.
 
 
In The
 
Fourteenth Court of
Appeals
_______________
 
NO. 14-05-00900-CR
_______________
 
THE STATE OF TEXAS, Appellant
 
V.
 
ANTIONIETA CARMACO, Appellee
                                                                                                                                               

On Appeal from the County Criminal
Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1312833
                                                                                                                                               

 
O P I N I O N
Appellee pled not guilty to the offense of violating
Section XXII (a) (12) of the Harris County Regulations for Sexually Oriented
Businesses In the Unincorporated Area of Harris County, Texas.  Following a
hearing, the trial judge granted appellee=s Motion to Quash
the Information and found the Regulation unconstitutionally vague.
I.  Background




This appeal seeks to reverse the trial court=s order quashing
the Information and to reinstate the Information.  No evidence was offered
during the hearing on appellee=s Motion to Quash, but the probable cause
statement in the Information states:  
appellee, while clothed in only a G-string panty and dancing in a SOB,
rubbed her buttocks on an undercover officer=s groin, placed her clothed vagina in his face and rubbed
her bare breasts in his face. During this performance, appellee was not on a
stage 18 inches above the floor. 
 
In one point of error, appellant contends that the trial
judge erred by finding the ordinance unconstitutional and granting appellee=s Motion to Quash
the Information. We agree.
II.  Regulation in Question
The Regulation made the basis of the Information provides
the following:
ASection XXII (a) The following shall be violations
of these regulations  as authorized in Section 243.010(b) of the Local
Government Code.  Each day a violation continues constitutes, and is punishable
as, a separate offense:
* * *
(12) for any person performing at an enterprise to
do so less than six (6) feet from the nearest patron and on a stage less than
eighteen (18) inches above floor level;
* * *
Pertinent Regulation definitions
are as follows:
Section IV - DEFINITIONS
As used in these
regulations:
* * *
(c)  Adult
Cabaret:  a nightclub, bar, restaurant, or similar commercial establishment
that features:
(1)  persons who
appear semi-nude or in a state of nudity as defined in this section;




(2)  live
performances which are characterized by the exposure of specified anatomical
areas or specified sexual activities as defined in this section; or 
* * *
(q)  Enterprise: 
a sexually oriented business enterprise is a commercial enterprise the primary
business of which is the offering of a service or the selling, renting or
exhibiting of devices or any other items intended to provide sexual stimulation
or sexual gratification to the customer.  This definition includes but is not
limited to:  sex parlors; nude studios; modeling studios; love parlors; adult
bookstores; adult movie theaters; adult video arcades; adult movie arcades;
adult video stores; adult motels; adult cabarets; escort agencies; and
sexual encounter centers.
* * *
(w) Live
Exhibition: a live performance by one or more individuals conducted in front
of at least one patron, including but not limited to, dancing, modeling,
sword swallowing, juggling, acrobatic acts, wrestling and pantomime.  
* * *
(y) Patron:  any
customer or client of an enterprise, including members of the public or club
members invited or admitted to a Class I enterprise.  This definition shall not
include the employees or permitted Class II performers at a Class I
enterprise.  Id.
 
III.  Information
The Information in pertinent part states the following:
A.  .  .the Defendant, . 
.  ., did then and there unlawfully while performing, to-wit:        DANCING,
at a sexually oriented business enterprise in an unincorporated area of Harris
County, Texas, namely, ADULT CABARET, intentionally and knowingly perform at a
distance of less than six feet from the nearest patron, namely, K. WILLIS, and
on a stage less than eighteen inches above the floor level of the enterprise.@
The Information was amended to allege ASt. James Adult
Cabaret@ instead of AAdult Cabaret@.




IV.  Purpose of Regulation
The Harris County Commissioners Order Adopting the
Regulation in question states in its finding number 22, ASexually oriented
businesses have been shown to be used for sexual activities which create a
significant threat to the public heath because of the sexual transmission of
disease. These sexual activities include prostitution and sexual liaisons
of a casual nature.@  Id..
Further, in Section I entitled AAuthority@ of the
Regulations in subsection (b) the stated purpose of the Regulations is to exercise
the police power of Harris County, to protect the health, safety and general
welfare of the citizens of Harris County, and to prohibit business activities
which merely serve as a front for activities prohibited by the Texas Penal
Code, including but not limited to prostitution and the promotion of
prostitution; and in subsection (c) a disclaimer of intent states the
Regulations have neither the intent nor the effect of imposing limits or
restrictions on the content of any communicative material, including sexually
oriented material; nor is it the intent or effect of Athis regulation@ to restrict or
deny adults access to sexually oriented material protected by the First
Amendment.  Id. 
V.  Motion to Quash
Appellee made a motion to quash the Information alleging
generally it is defective in that it seeks to enforce an ordinance that is
unconstitutional, both on its face, and as applied to the appellee.  The
appellee alleged four specific grounds, including the claim the regulation was
unduly vague and overly broad.




The trial court granted appellee=s motion to quash
after a hearing and held Section XXII (a) (12) of the Regulations
unconstitutional for vagueness because it did not give fair notice to a person
of ordinary intelligence of the conduct forbidden, and it did not provide
explicit standards to law enforcement personnel to prevent arbitrary or
discriminatory enforcement.  Except for the vagueness ground alleged by
appellee in her Motion to Quash the other specific grounds were not discussed
or ruled on by the trial court.
VI.  Standard of Review
We review a trial court=s ruling on a
motion to quash de novo. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim.
App. 2004).  In reviewing the constitutionality of a statute, we begin with the
presumption that the statute is valid and assume that the legislature did not
act arbitrarily and unreasonably in enacting the statute.  Rodriguez v.
State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2000);  Ex Parte Granviel, 561
S.W.2d 503, 511 (Tex. Crim. App. 1978).  Therefore, if a statute can be
construed in two different ways, one of which sustains its validity, we apply
the interpretation that sustains its validity.  Rodriguez, 93 S.W.3d at
69; Mody v State,  2 S.W.3d 652, 654-55 (Tex. App.CHouston [14th
Dist.] 1999, pet. ref=d).  The burden is on the movant to prove
the law is unconstitutional.  See Briggs v. State, 740 S.W.2d 803, 806
(Tex. Crim. App. 1987);  Garay v. State, 940 S.W.2d 211, 215 (Tex. App.CHouston [1st
Dist.] 1999, pet. ref=d).
Since the trial judge provided findings explaining the
bases for his ruling, this appeal need only address those reasons advanced by
the judge.  State v. Mechler, 123 S.W.3d 449, 451 (Tex. App.CHouston [14th
Dist.] 2003), aff=d. 153 S.W.3d 435
(Tex. Crim. App. 2005).
VII.  Point of Error
Appellant=s sole point of error contends the trial
judge erred by finding the ordinance unconstitutional and granting appellee=s motion to quash
the information.




The trial court did not make a specific finding that the
ordinance was unconstitutional on First Amendment grounds, but instead, ruled
that Section XXII (a) (12) was unconstitutionally vague because it does not
give fair warning and notice to a performer.  The court=s findings asked
the following questions:  (1) How is a performer to know if the nearest patron
[who] is behind them is at 5= and 11 and 15/16@, if the performer
is dancing for a patron (any customer or client)?;  (2) While a performer can
gauge the six foot distance from someone specific within their view, and for
whom they are dancing, how does a performer know that the height distance of
the stage is not less than 18 inches above the floor?;  and  (3) Does
compliance of one distance restriction still subject the performer to criminal
penalties since the restrictions are joined by the conjunctive Aand@?
The State admits that nude dancing is constitutionally
protected expressive conduct under the First and Fourteenth Amendments to the
United States Constitution, Barnes v. Glen Theatre, Inc., 501 U.S. 560,
594, 111 S.Ct. 2456, 2460 (1991), and argues that the imposition of incidental
burdens on nude dancing identical or similar to those imposed in this case have
been deemed constitutionally sound in the series of cases cited by the State.  See
Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1254 (5th Cir. 1995); DFW
Vending, Inc. v. Jefferson County, Texas, 991 F.Supp. 578, 588 (E.D. Tex.
1998); N.W. Enterprises, Inc. v. City of Houston, 27 F.Supp. 754, 850
(S.D. Tex. 1998), reversed in part on other grounds and affirmed on
remainder of grounds, 352 F.3d 162 (5th Cir. 2003); LLEH, Inc. v.
Wichita County, Texas, 289 F.3d 358, 363, 367B369 (5th Cir.
2002); DLS, Inc. v. City of Chattanoga, 107 F.3d 403, 408B413 (6th Cir.
1997); and KEV, Inc. v. Kitsap County, 793 F.2d 1053, 1061B62 (9th Cir.
1986).  We agree.




The trial court believed the Regulation failed to give fair
notice to a dancer as it would subject her to arbitrariness and oppression by
having to defend prosecutions time after time when someone walked up behind her
within 6 feet without her knowing.  Stansberry v. Holmes, 613 F.2d 1285
(5th Cir. 1980), cert. denied, 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed 2d 112
(1980).  However, because a culpable mental state accompanies the Regulation, a
dancer would not be subject to prosecution unless she intentionally knowing
performed within six-feet of a patron behind her or on a stage lower than
eighteen iches.  Defining and grading offenses to give fair warning of what is
prohibited and of the consequences of violation is a stated objective of the
Texas Penal Code.  See Tex. Pen.
Code Ann. _ 1.02 (2).  The court reasoned that it would be too
difficult for a performing dancer to keep the required distance from patrons
behind her.  The Regulation contains a definition of Alive exhibition,@ as a live
performance, including dancing, by one or more individuals conducted in
front of at least
one patron, but doesn=t limit the number of patrons the dancer may be entertaining
or prevent patrons from observing the performance from the rear of the dancer. 
See Id.  SECTION IV (w).  In the context of buffer zones for dancers, an
ordinance is not invalid merely because it might, as a practical matter, be
difficult to comply.  N.W. Enterprises, Inc. v. City of Houston, 27 F.Supp. 754,
856 (S. D. Tex. 1998), reversed in part on other grounds and affirmed on
remainder of grounds, 352 F.3d 162 (5th Cir. 2003).




Further, the trial court found the Regulation did not
provide explicit standards to law enforcement personnel to prevent arbitrary or
discriminatory enforcement but did not specify the deficiencies in such regard.
To support this finding, the court cited Bynum v. State, 767 S.W.2d 769,
773 (Tex. Crim. App. 1989) and Kaczmarek v. Texas, 986 S.W.2d 287 (Tex.
App.CWaco 1999).  Bynum
holds that a statute which adequately details prohibited conduct to the
extent that the enforcement of the statute would not be relegated to subjective
interpretation provides guidance to law enforcement authorities to such a
degree that improperly motivated selective enforcement is obviated.  Bynum,
767 S.W.2d at 775.  However, Bynum is distinguishable because it
involved a challenge to the constitutionality of a misapplication of fiduciary
property offense which did not discuss any law enforcement guidelines, or
guidelines necessary for a court to find that a statute inadequately details
prohibited conduct and must be relegated to subjective interpretation, which
might be applicable in that case or to the instant case.  Neither does Kaczmarek
apply or support the finding.  Kaczmerek was a prosecution for
location restrictions and licensing of a sexually oriented business where the
discretion of the police at issue was not guidelines for enforcement but was
only as to whether the ordinance gave the chief of police unbridled
administration discretion to grant or deny a permit to operate a sexually
oriented business.  The Regulations sets forth clear, objective standards (six
feet, eighteen inches) for the determination of whether a violation has
occurred.  See N.W. Enterprises, Inc., 27 F.Supp. 2d at 856 (rejecting
the claim that a three-foot buffer zone was unconstitutional merely because Ait would be
difficult for a law enforcement officer to know if an entertainer was an
unacceptable 32 inches away from a patron or an unacceptable 36 inches away@); cf. Cox v.
Louisiana, 379 U.S. 559, 568B69 (1965) (holding
a statute that prohibited protests Anear@ a courthouse not
unconstitutionally vague despite the subjective standard).  Whether a dancer
has violated the six foot zone or remained, as the trial court notes, A5' and 11 and
15/16" away from the nearest patron is a matter for the State to prove;
the Regulation itself is not vague.  Further, because the Regulations (Section
XXII (a) (13)) require the owner or enterprise operator to clearly mark the six
foot zone, in practice, law enforcement officers are able to make a clear
determination as to whether a violation as occurred.  See Grayned v. City of
Rockford, 408 U.S. 104, 110 (1972) (Considering the interpretation of the
statute as enforced in practice when evaluating a vagueness claim) Roth v.
U. S., 354 U.S. 476, 491 (1957) (noting that the language of a statute
should be measured by common understanding and practice); see also DFW
Vending, 991 F. Supp. at 594B96 (rejecting the
claim that a Jefferson County ordinance establishing a six-foot buffer zone and
eighteen-inch stage requirement was unconstitutionally vague for failure to
provide explicit standards to law enforcement officials.  We conclude the
language of the Regulation provides guidance to law enforcement authorities to
such a degree that improperly motivated selective enforcement is obviated.
In addition to the foregoing, the trial court=s findings include
the following question:
Furthermore since the conjunctive Aand@ joins the six foot distance
requirement           and stage requirement of not less than 18@ above the floor, does compliance
of one part and non-compliance of the other part still subject the performer to
criminal penalties?
 




The interchange of the words Aand@ as Aor@ and vice versa
can be made only when it is necessary to harmonize the provisions of a statute,
give effect to all its provisions, save it from unconstitutionality, or to
effectuate the obvious intent of the legislature.  Smith v. City of Casper, 419
P.2d 704, 706 (1966);  50 Am. Jur. Statutes _ 282; 82 C.J.S. _ 335.  It has long
been recognized that in penal statutes, the word Aor@ cannot be
interpreted as meaning Aand@ when the effect
would be to aggravate the offense or increase the punishment. Id; see Ruffin
v. State, 138 Tex. Crim. 83, 134 S.W.2d 293B94 (1939).  The
State argues that the words Aor@ and Aand@ can be
interchanged when it is necessary to effectuate the legislature=s intent, where to
do so would not render the statute meaningless, and where not to do so would
result in an absurdity.  Lindsay v. Papageorgiou, 751 S.W.2d 544, 547B48 (Tex. App.CHouston [1st
Dist.] 1988, writ denied).  We agree.  The Regulation would not be rendered
meaningless, and it would be absurd to effectively bar the conviction of a
dancer who dances within 6 feet of patrons but does so on a stage 18 inches
high or a dancer who dances more than 6 feet from the patron but does so on a
stage lower than 18 inches.  Further, the interchange of Aor@ for Aand@ in this
Regulation would not aggravate the offense or increase the punishment.  The
punishment for violating the 6 foot zone and the 18 inch high stage
restrictions in one transaction is the same as a violation of only one of the
restrictions. In any event, a construction that avoids a challenge to the
constitutionality of a statute, or to the statute=s application, may
be favored for that reason.  Lebo v. State, 90 S.W.3d 324, 328 (Tex.
Crim. App. 2002).  This is at least in part because the Legislature was
unlikely to have intended a meaning of doubtful constitutionality. Id.  We
hold that the answer to the trial court=s question is Ayes.@
We grant appellant=s point of error..
In view the trial court failed to rule on all the grounds
of the motion to quash, we do not need to discuss or rule on the grounds not
ruled on by the trial court




We reverse and remand. 
 
 
/s/        Maurice Amidei
Senior Justice
 
Judgment rendered and
Opinion filed October 3, 2006.
Panel consists of
Justices Hudson, Amidei and Mirabal.[1]
Publish C Tex.
R. App. P. 47.2(b).
 
 




[1]  Senior Justices Margaret Garner Mirabal and Maurice
Amidei sitting by assignment.


