

Opinion issued
July 7, 2011

In
The
Court of
Appeals
For
The
First District
of Texas
————————————
NO. 01-10-00616-CR
NO. 01-10-00617-CR
———————————
PATRICIA
RIVERA, Appellant
V.
THE STATE OF TEXAS, Appellee

 

 
On Appeal from County Criminal Court At Law No. 3
Harris County, Texas

Trial
Court Case Nos. 1652303 & 1652305
 

 
 
* * *
————————————
NO. 01-10-00618-CR
———————————
TELIA
D. CASEL, Appellant
V.
THE STATE OF TEXAS, Appellee

 

 
On Appeal from County Criminal Court At Law
No. 3
Harris County, Texas

Trial
Court Case No. 1683906
 

 
* * *
————————————
NO. 01-10-00619-CR
———————————
JOANNA
LYNN WALTON, Appellant
V.
THE STATE OF TEXAS, Appellee

 

 
On Appeal from County Criminal Court At Law
No. 3
Harris County, Texas

Trial
Court Case No. 1652289
 

 
O P I N I O N
          These
four appeals arise from orders denying relief in pretrial habeas corpus proceedings
in which appellants, Patricia Rivera, Telia D. Casel, and Joanna Lynn Walton, challenge
the constitutionality of City of Houston Ordinance No. 97–75, under which each is being
prosecuted.  See Tex. R. App. P. 31.  Appellants present four identical issues on
appeal. [1]  
          We
affirm the trial court’s order denying habeas relief in each appeal.
Background
Appellants, Patricia Rivera,
Telia D. Casel, and Joanna Lynn Walton, have been charged with Class A
misdemeanor offenses for violating certain provisions of City of Houston Ordinance
No. 97–75
(“the Ordinance”).[2]  The Ordinance regulates sexually-oriented businesses
and criminalizes certain conduct by persons employed by those establishments.
          Here, the State charged Rivera,
Casel, and Walton by information with the misdemeanor offense of “intentionally
and knowingly” acting as an “entertainer” at Legs Cabaret, “a sexually oriented
enterprise, namely, an adult cabaret” without “holding a valid permit . . . as
required under Section 28–253(a) of the Code of Ordinances of the City of
Houston.”[3]  Each appellant was also charged with
violating the “no touch provision” of the Ordinance, which makes it “unlawful for
any entertainer to touch a customer or the clothing of a customer while
engaging in entertainment or while exposing any specified anatomical areas or
engaging in any specified sexual activities.”[4]  Specifically, Casel and Walton were charged
with “intentionally and knowingly” touching a customer while “engaging in
entertainment, namely, a dance, involving the display and exposure of a portion
of the human buttock” and “a portion of the human breast immediately below the
top of the areola.”  Rivera was charged
with “intentionally and knowingly” touching a customer while “engaging in
entertainment, namely, a dance, involving the display and exposure of the
fondling and touching of the female breast.”
          Appellants
filed individual applications for pretrial writ of habeas corpus in which they challenged
the constitutionality of the Ordinance.  Each
asserted that the Ordinance is unconstitutionally vague and overbroad and argued
that it violates the preemption and proportionality protections of the state
and federal constitutions.  The trial
court issued the writs and conducted a hearing on the applications.  Following additional briefing by the parties,
the trial court denied the requested habeas relief in each cause and filed conclusions
of law in support of its rulings.  
          These
appeals followed in which appellants challenge the trial court’s denial of the
requested habeas relief.  In four issues,
appellants raise the following constitutional claims: (1) the Ordinance improperly
limits expressive conduct protected by the First Amendment because it creates strict
liability offenses without requiring a culpable mental state; (2) the Ordinance
contains unconstitutionally vague terms; (3) the Ordinance unlawfully expands
the City of Houston’s authority and violates the doctrine of preemption; and
(4) the Ordinance violates the doctrine of proportionality because the sentence
is disproportionate to the offense.  
Pretrial Habeas Relief and Standard
of Review
          “The
writ of habeas corpus is an extraordinary writ.”  Ex parte
Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001).  Neither trial courts nor appellate courts
should entertain applications for writ of habeas corpus when the applicant has
an adequate remedy by appeal.  See id.  A claim that a statute is unconstitutional on
its face is cognizable by pretrial habeas corpus; if there is no valid statute,
the charging instrument is void.  See id. at 620.
An appellate court reviews a
trial court’s decision to grant or deny an application for writ of habeas
corpus under an abuse-of-discretion standard.  Kniatt
v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006).  In reviewing the trial court’s ruling, we view
the evidence in the light most favorable to the trial court’s ruling.  Ex parte
Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d
335, 371 (Tex. Crim. App. 2007).  The
trial judge, as fact finder at the writ hearing, is the exclusive judge of
witness credibility.  Ex parte Amezquita, 223 S.W.3d 363, 367
(Tex. Crim. App. 2006).  When, as here,
the resolution of the ultimate questions turns on an application of legal
standards, we review the trial court’s ruling de novo.  Doyle v.
State, 317 S.W .3d 471, 475 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).
Culpable Mental State
          In
their first issue, appellants assert that the Ordinance is facially
unconstitutional because it is overbroad.[5]  We begin by noting that appellants correctly assert
that the expressive conduct at issue—namely, nude and exotic dancing—is constitutionally protected conduct under the First
and Fourteenth Amendments.[6]  See State
v. Howard, 172 S.W.3d 190, 192 (Tex. App.—Dallas 2005, no pet.).  
In support of their
overbreadth challenge, appellants point out that the Ordinance does not expressly
require the State to prove a culpable mental state. Appellants argue that criminalizing
expressive conduct without requiring a culpable mental state is a greater
restriction than necessary to protect and further any governmental interests that
the City of Houston may have in regulating the conduct. [7]   
Appellants’ contention that
the Ordinance is overbroad hinges on their assertion that it does not require
the State to prove a culpable mental state when prosecuting violations of the
Ordinance.  Thus, if the State is
required to prove a culpable mental state when prosecuting an Ordinance
violation, appellants’ overbreadth claim fails. 

A.      Applicable Law 
If the definition of an
offense does not prescribe a culpable mental state, one is nevertheless
required, unless the definition plainly dispenses with any mental element.  Tex.
Penal Code Ann. § 6.02(b) (Vernon 2011).  If a statute plainly dispenses with a culpable
mental state as an element of the offense, it is a strict liability statute.  See
State v. Walker, 195 S.W.3d 293, 298 (Tex. App.—Tyler 2006, no pet.).  A person who commits an act in violation of a
strict liability statute may be held criminally liable even though she might be
innocent of any criminal intent.  See id. 

A court must look for a
manifest intent to dispense with the requirement of a culpable mental state.  Aguirre
v. State, 22 S.W.3d 463, 472 (Tex. Crim. App. 1999).  The omission of a culpable mental state is a
clear implication of the legislature’s intent to dispense with a mental element
in that section.  See Lomax v. State, 233 S.W.3d 302, 304 (Tex. Crim. App. 2007); Aguirre, 22 S.W.3d at 473.  Nonetheless, absent an express intent to
dispense with the requirement of a culpable mental state, we must inquire
whether such intent is manifested by other features of the statute.  Aguirre,
22 S.W.3d at 473.  These features include
(1) the language of the statute, (2) the nature of the offense as either malum prohibitum or malum in se, (3) the subject of the
statute, (4) the legislative history of the statute, (5) the seriousness of harm
to the public, (6) the defendant’s opportunity to ascertain the true facts, (7)
the difficulty in proving a culpable mental state, (8) the number of
prosecutions expected, and (9) the severity of the punishment.  Id.
at 472–76.
B.      Analysis
          To address appellants’
overbreadth challenge, we must first ascertain whether the Ordinance defines strict
liability offenses or requires a culpable mental state.  Because the Ordinance does not contain an
affirmative culpable mental state, we must examine other features of the Ordinance
to determine whether such intent is manifested. 
See id.
          First,
we review the language of the Ordinance. 
We presume that culpability is required because the Ordinance is silent
regarding a culpable mental state for these offenses.  See Aguirre,
22 S.W.3d at 472; Walker, 195 S.W.3d
at 297.  Moreover, no other provision in the
Ordinance prescribes a mental state, an indicator that the omission was not
necessarily intended to dispense with a culpable mental state.  Cf. Aguirre,
22 S.W.3d at 473 (stating that if any section of statute prescribes a mental
state while another section omits a mental state, it is presumed legislature
intended to dispense with mental element in section lacking culpable mental
state).  The first factor weighs in favor
of a conclusion that the Ordinance requires a culpable mental state.
          Second,
we examine the nature of the offense proscribed.  See id.
at 476.  Strict liability is associated
with civil violations that incur only a fine and also with criminal offenses that
are characterized as malum prohibitum.
 Aguirre,
22 S.W.3d at 472; see also Howard,
172 S.W.3d at 193.  Mala prohibita offenses are acts that are
crimes merely because they are prohibited by statute, although they are not necessarily
immoral.  See Howard, 172 S.W.3d at 193.  
In contrast, mala in se offenses are acts that are
inherently immoral and require a culpable mental state.  See id.
 The implication is that a strict
liability offense must be malum
prohibitum.  Aguirre, 22 S.W.3d at 473.  Courts have recognized that, under the common
law, public nudity is classified as mala
in se offense.  See Howard, 172 S.W.3d at 193 (citing Barnes v. Glen Theatre, Inc., 501 U.S. 560, 568, 111 S. Ct. 2456,
2461 (1991); Aguirre, 22 S.W.3d at
477).  It follows that the offenses
involved here are most appropriately classified as mala in se offenses and require a culpable mental state.  See Howard,
172 S.W.3d at 193.  The second factor weighs
in favor of a conclusion that the Ordinance requires a culpable mental state.
          Third, we consider the subject of the Ordinance.  See
Aguirre, 22 S.W.3d at 476.  Strict
liability statutes are traditionally associated with the protection of public
health, safety, or welfare.  Aguirre, 22 S.W.3d at 473.  The court of criminal appeals has upheld
statutes that impose strict liability for offenses including air and water
pollution, driving while intoxicated, sale of horse meat for human consumption,
adulteration of food, and speeding.  Id. at 475 & n.47; Walker, 195 S.W.3d at 298.  The Ordinance involved here regulates the operation
of sexually oriented businesses.  The
class of public safety statutes that appellate courts have found to impose
strict liability comprises statutes that punish dangerous activities that may
result in serious physical injury or death to members of the public.  Walker,
195 S.W.3d at 298 (citing Aguirre, 22 S.W.3d at 475 & n.47).  The potential harm from violations of the
Ordinance is not of that nature.  The third
factor weighs in favor of a conclusion that the Ordinance requires a culpable
mental state. 
          The
fourth factor identified in Aguirre is
the legislative history of the statute.  See Aguirre, 22 S.W.3d at 475.  The provisions of the Ordinance involved here
were added by amendment to the already existing sexually oriented business
ordinance in 1997.  See N.W. Enters. Inc. v. City of Houston, 352 F.3d 162, 172 (5th
Cir. 2003) (discussing history of Ordinance No. 97-75, including 1997
amendments).  However, the amending of the statute
without adding a mental state does not rise to the level of “a manifest intent
to dispense with the requirement of a culpable mental state.”  Walker,
195 S.W.3d at 299 (citing Aguirre, 22
S.W.3d at 472; State v. Abdallah, 64
S.W.3d 175, 179 (Tex. App.—Fort Worth 2001, pet. ref’d).  
          Section
25–258(a), which makes it
illegal for an entertainer to touch a customer, is entitled “Conduct of
Employee.”  Houston, Tex., Code of Ordinances, No.
97–75, § 28–258(a).  Arguably,
the term “conduct” connotes purposeful action by the entertainer, which in turn
indicates that a culpable mental state was contemplated.  This factor weighs in favor of a conclusion
that the Ordinance requires a culpable mental state.
          Fifth,
we examine the seriousness of the harm to the public that may be expected to
follow from the forbidden conduct.  See Aguirre, 22 S.W.3d at 476.
Generally, the more serious the consequences to the public, the more likely the
legislature intended to impose liability without regard to fault.  See
Walker, 195 S.W.3d at 299 (citing Thompson,
44 S.W.3d at 180).  In most strict
liability offenses, the statutes protect unwitting and unwilling members of the
public from the noxious and harmful behavior of others in situations in which
it would be difficult for members of the public to protect themselves.  See id. (citing
Thompson, 44 S.W.3d at 180).  Such statutes involve serious risk to the
public, including serious physical injury or death.  See id.  Examples of such strict liability offenses
are speeding, driving while intoxicated, adulteration of food, and air and
water pollution.  See id.  Here, as recognized
by the Fifth Circuit Court of Appeals, the Ordinance is designed to protect the
public from criminal activity, such as prostitution, lewd conduct, indecent
exposure, and narcotics violations that are the secondary effects of operating
a sexually oriented business.[8]  See N.W.
Enters. Inc., 352 F.3d at 176 & n.7.  While they are significant, such concerns are
not of the same nature as recognized strict liability offenses that involve the
risk of serious bodily injury and death. 
Accordingly, the fifth factor weighs in favor of a conclusion that the
Ordinance requires a culpable mental state. 
          Sixth,
we examine a potential defendant’s opportunity to ascertain the “true facts” that
constitute the offense.  When ordinary
citizens are not in a position to know about a statute or conduct constituting
a violation of the statute, it is unlikely that the legislature intended to
forego a culpable mental state.  See State
v. Abdallah, 64 S.W.3d 175, 180 (Tex. App.—Fort Worth 2001, pet. ref’d); see also Aguirre, 22 S.W.3d at 476–77.  Here, the subject provisions of the Ordinance
do not apply to an ordinary citizen; rather, they apply to those employed as an
“entertainer” in the highly regulated industry of sexually oriented businesses.
 Cf.
Abdallah, 64 S.W.3d at 180  (concluding that average citizen would not
likely know of “some obscure statute about placing a stamp on a package of
cigarettes, whereas one in the business of selling cigarettes is likely to
know, or should know, whether his merchandise is properly marked”).  An entertainer would likely have knowledge of
the Ordinance and have little difficulty in determining whether she possessed
the required permit or whether she was touching a customer while entertaining him.
 See
Thompson, 44 S.W.3d at 181 (reviewing Ordinance 97–75’s permitting provision and concluding
that entertainer could easily ascertain “true facts” with regard to whether she
is displaying required permit); cf. Aguirre, 22 S.W.3d at 476–77 (holding
that employee, unlike the business owner, of live nude business was not in best
position to know, nor had much of an incentive to find out, that her place of
employment was within 1,000 feet of a school in violation of a city ordinance).
 The entertainer’s ability to easily
ascertain the “true facts” favors the imposition of strict liability.  See Thompson,
44 S.W.3d at 180.
          Seventh,
we examine the difficulty prosecutors would have in proving a mental state for
this type of offense.  See Aguirre, 22 S.W.3d at 476.  The greater the difficulty in proving a mental
state, the more likely legislators intended to create a strict liability
offense to ensure more effective law enforcement.  Id.  A defendant’s intentions or culpable mental
state can be inferred from circumstantial evidence, such as her words, actions,
and conduct.  See Walker, 195 S.W.3d at 300 (citing Smith v. State, 965 S.W.2d 509, 518 (Tex. Crim. App. 1998); Guevara v. State, 152 S.W.3d 45, 50
(Tex. Crim. App. 2004)).  Because intent
may be inferred from a defendant’s words, actions, and conduct, proving a
mental state required to violate the Ordinance is no more difficult than
proving a mental state in another offense.  See
Walker, 195 S.W.3d at 300.  The seventh
factor weighs in favor of a conclusion that the Ordinance requires a culpable
mental state.
          Eighth,
we examine the number of prosecutions expected.  The fewer the expected prosecutions, the more
likely the legislature intended to require prosecutors to show fault.  Aguirre,
22 S.W.3d at 476.  The greater the number
of prosecutions, the more likely the legislature meant to impose liability
without regard to fault.  Id.  We, however, lack information regarding this
factor; thus, this factor is neutral.
          Finally,
we examine the severity of the punishment for an offense under the
Ordinance.  The greater the possible
punishment, the more likely some fault is required.  Aguirre,
22 S.W.3d at 476.  Strict liability is
generally associated with civil violations that are punishable by fine only.  Walker,
195 S.W.3d at 300 (citing Thompson,
44 S.W.3d at 180).  Conversely, if the
offense is punishable by confinement, the presumption against strict liability
strengthens.  Id.
          A
violation of either the permitting or no-touch provisions of the Ordinance is a
Class A misdemeanor.  See Houston, Tex., Code of Ordinances, No. 97–75, §§ 28–133(a), 28–259(a);
Tex. Loc. Gov’t. Code Ann.
§ 243.010(b) (Vernon 2005).  Punishment
for a Class A misdemeanor includes a fine up to $4,000, confinement in jail for
a term not to exceed one year, or both a fine and confinement.  See Tex. Penal Code Ann. § 12.21
(Vernon 2011).  Possible confinement of
up to one year for violation of the Ordinance is a strong indication that a
culpable mental state is required.  See Walker, 195 S.W.3d at 300 (citing Thompson, 44 S.W.3d at 180–81).  Therefore, the last factor weighs in favor of a
conclusion that the Ordinance requires a culpable mental state.
A majority of the factors we
have considered weigh in favor of requiring a culpable mental state.  These factors are not, however, equally
important.  See Aguirre, 22 S.W.3d at 473 (acknowledging that subject of the
statute has been the most important factor in recent cases); Walker, 195 S.W.3d at 300 (considering
severity of punishment to be significant indicator).  Here, the seriousness of the possible
punishment, one year in jail, is an important factor that weighs against strict
liability.  See Walker (citing Ex parte
Weise, 23 S.W.3d 449, 454 (Tex. App.—Houston [1st Dist.] 2000), rev’d on other grounds, 55 S.W.3d 617 (Tex. Crim. App. 2001)).  In addition, the subject of the Ordinance,
nude and exotic dancing, is considered malum
in se and any violations associated with such conduct require a culpable
mental state.  See Aguirre, 22 S.W.3d at 477. 
Because the majority of the factors weigh in favor of requiring a
culpable mental state, we cannot say that the Ordinance manifests an intent to
dispense with a culpable mental state sufficient to overcome the presumption
that one is required.  See Aguirre, 22 S.W.3d at 477; Walker, 195 S.W.3d at 300.  We conclude that a culpable mental state is
required to prove a violation of the Ordinance; that is, offenses under the
Ordinance are not strict liability offenses.[9]  See
Aguirre, 22 S.W.3d at 477; see also
Howard, 172 S.W.3d at 193–94 (concluding that “no touch” provision of Dallas
sexually oriented business ordinance required culpable mental state); Haddad v. State, 9 S.W.3d 454, 459 (Tex.
App.—Houston [1st Dist.] 1999, no
pet.) (holding Ordinance 97–75 requires culpable mental state, despite lack of
express culpable mental state).  
Appellants’ contention in
their first issue that the Ordinance is unconstitutionally overbroad hinges on
their assertion that it does not require the State to prove a culpable mental
when prosecuting violations of the Ordinance. 
Because we conclude that the State is required to prove a culpable mental
state when prosecuting the violations of the Ordinance, appellants’ overbreadth
argument fails.
We overrule appellants’
first issue in each appeal.  
Vagueness Challenge
          In
their second issue, appellants assert that the Ordinance is unconstitutionally
vague on its face.  Appellants contend
that certain terms used in the Ordinance are not adequately defined.[10]  As a result, appellants claim that the
Ordinance (1) fails to put those subject to the Ordinance on notice of what is
prohibited, (2) fails to contain objective standards, and (3) gives the police
unfettered discretion to determine what conduct amounts to a violation.  
A.      The Subject Terms
The Ordinance regulates
“entertainers,” who are employed by sexually oriented businesses or “enterprises.”
 “Entertainer” is defined as “[a]ny
employee of an enterprise who performs or engages in entertainment.”  Houston,
Tex., Code of Ordinances, No. 97–75, § 28–251.  “Entertainment” is, in turn, defined to
include “any employee or entertainer exposing any specified anatomical areas or
engaging in any specified sexual activities whatever in the presence of
customers.”  See id.  “Specified
anatomical areas” include “less than completely and opaquely covered . . . [f]emale
breast or breasts or any portion thereof that is situated below a point
immediately above the top of the areola.” 
See id.  The Ordinance defines “specified sexual
activities” to include “[f]ondling or other erotic touching of human genitals,
pubic region or pubic hair, buttock or female breast or breasts.”  See
id.  
Appellants take issue with the phrases “fondling and erotic
touching” and “any portion of [the female breast] that is situated below a
point immediately above the top of the areola.” 
With regard to the first phrase, appellants assert that it “fails to
sufficiently distinguish which conduct constitutes fondling or erotic touching
and how it is to be measured.”  With
regard to the second phrase, appellants describe it as being “awkward” and “ambiguous”
because it is difficult to ascertain where the “point immediately above the areola”
lies.   
B.      Applicable Legal Principles
          The Due
Process Clause of the Fourteenth Amendment requires a legislature to define a
criminal offense in its penal statutes in a manner sufficient to inform
ordinary people whether their conduct is prohibited and to provide minimal
guidelines to govern law enforcement.  See State v. Edmond, 933 S.W.2d 120, 125
(Tex. Crim. App. 1996). “Without such guidance, a penal statute might be
susceptible to arbitrary and discriminatory enforcement.”  Id.
          An appellate
court presumes the validity of a statute or ordinance attacked on
constitutional grounds.  See Ex Parte Granviel, 561 S.W.2d 503,
511 (Tex. Crim. App. 1978); Webb v. State,
991 S.W.2d 408, 414 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).  The court must uphold the ordinance if a
reasonable construction will render it constitutional and carry out the
legislative intent.  Flores v. State, 33 S.W.3d 907, 920 (Tex. App.—Houston [14th Dist.]
2000, pet. ref’d); see Ely v. State,
582 S.W.2d 416, 419 (Tex. Crim. App. 1979); 
A statute is vague if
persons of common intelligence must necessarily guess at its meaning and differ
about its application.  See Vill. of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S. Ct. 1186, 1193 (1982); Cotton v. State, 686 S.W.2d 140, 141
(Tex. Crim. App. 1985).  A statute need
not be mathematically precise; it need only give fair warning, in light of
common understanding and practices.  See Ex parte Anderson, 902 S.W.2d 695,
699 (Tex. App.—Austin 1995, pet. ref’d).  A statute is not unconstitutionally vague
merely because the words or terms used are not defined.  See
Edmond, 933 S.W.2d at 126.
          When a
word is not defined, it is ordinarily given its plain meaning unless the
statute clearly shows that it was used in some other sense.  Flores,
33 S.W.3d at 921 (citing Anderson,
902 S.W.2d at 699).  Statutory words should
be read in context and construed according to the rules of grammar and common
usage.  See Tex. Gov’t Code Ann.
§ 311.011(a) (Vernon 2005).  Words
defined in dictionaries and with meanings so well known as to be understood by
a person of ordinary intelligence are not vague and indefinite.  See
Floyd v. State, 575 S.W.2d 21, 23 (Tex. Crim. App. 1978); Anderson, 902 S.W.2d at 700.
C.      Analysis
          1.       Fondling or other erotic touching
          With
respect to the phrase, “fondling or other erotic touching,” appellants complain
that “[the] terms are vague because they are inherently resistant to a single
meaningful interpretation.”  Appellants
assert that the Ordinance neither describes sufficiently what constitutes “fondling
or other erotic touching” nor defines how to measure it.  Appellants suggest that inadvertent touching
may be enough.  They question how long or
how much touching constitutes fondling and ponder how and who will determine
the erotic nature of the touching.  
          We
disagree with appellants’ contentions.  Appellants
incorrectly read each word in the phrase in isolation, and they incorrectly read
the phrase in isolation from the rest of the Ordinance.  Appellants also fail to assign the terms
their common meanings.  
In the context of the phrase
itself, the word “erotic” is the defining term; it serves to modify “touching”
and also to define “fondling.”  By the
phrasing “fondling or other erotic
touching,” the intent of Ordinance’s drafters is apparent.  It is the “erotic” nature of the touching and
fondling that is significant and defining in this phrase.  
          In Flores, the Fourteenth Court of Appeals determined
whether the term “erotic,” in the context of the same ordinance at issue here, is
unconstitutionally vague.  See Flores, 33 S.W.3d at
921.  The Flores court provided the following analysis:
In the context of the Ordinance, the term “erotic”
describes how the entertainer touches specific body parts, the whole of which
comprise a sexual activity.  The commonly
understood meaning of “erotic” is “of or causing sexual love, esp. tending to
arouse sexual desire or excitement.”  The Oxford Encyclopedic English Dictionary
483 (1991); see also Webster’s Ninth New Collegiate Dictionary
422 (1983) (defining erotic as “of, devoted to, or tending to arouse sexual
love or desire”).  Thus, erotic touching
of a specified body part in the context of this Ordinance means touching a
specified body part in such a manner that would tend to arouse sexual desire or
excitement.
 
Id.
The Flores court
concluded, “The language of the Ordinance is not unconstitutionally vague.  It conveys a sufficient warning about the
proscribed conduct when measured by a common understanding and practice.”  Id. at
922.  We agree with the above reasoning and
conclusion of the Flores court. [11]  In short, the term “erotic” is a common word
with an unambiguous meaning.  
Similarly, the words
“fondling” and “touching” are words of common understanding.  In this case, the contextual meaning of these
words is clear because the object of touching and fondling in the Ordinance are
specifically identified erogenous zones and are modified by the term
“erotic.”  Under these circumstances, the
average person would understand this to mean sexual contact. 
We note that courts in other
jurisdictions have concluded that the term “fondle” is not vague when used in
the regulation of sexually oriented businesses. 
See, e.g., Giovani Carandola, Ltd.
v. Fox, 470 F.3d 1074, 1081 (4th Cir. 2006) (concluding that the term
“fondle,” when used in conjunction with specified erogenous zones, indicates
that “it aims to prevent overt sexual contact, something the ordinary person
likely understands”); Kev, Inc. v. Kitsap
County, 793 F.2d 1053, 1057–58 (9th Cir. 1986) (holding that provisions of
ordinance prohibiting erotic dancers from “fondling” and “caressing” any patron
were not unconstitutionally vague); J.L.
Spoons, Inc. v. O’Connor, 190 F.R.D. 433, 444 (N.D. Ohio 1999) (holding
that word “fondle” is sufficiently clear and noting that “[r]egulatory language
need not be mathematically precise”).        We recognize that the word “touching” may
be more amorphous in its meaning than “fondling,” but when read in the context
of the entire phrase and ordinance, and as modified by the term “erotic,” the
meaning of “touching” can also be commonly understood to mean sexual contact.  
          A
statute need not be mathematically precise; it need only give fair warning in
light of common understanding and practices.  See Flores,
33 S.W.3d at 920–21;
Anderson,
902 S.W.2d at 699.  The phrase “fondling
or other erotic touching” provides a sufficient warning to place persons of
ordinary intelligence on notice regarding what conduct the Ordinance regulates
and to prevent the risk of arbitrary enforcement.  We conclude that the phrase “fondling or
other erotic touching,” as used in the Ordinance, is not unconstitutionally
vague.  
2.       Any portion of [the female breast] that is
situated below a point immediately above the top of the areola       
 
Appellants assert that
“[t]he definition of ‘entertainment’ is also vague insofar as it hinges on an
entertainer or employee engaging in conduct that exposes ‘any portion of [the female
breast] that is situated below a point immediately above the top of the areola.’”  Appellants acknowledge that the term “areola”
is “a medical term, with a specific meaning, and an absolute beginning and
end.”  Nonetheless, appellants assert
that the phrase as a whole is too subjective, lending itself to many
interpretations.  For example, appellants
posit that the phrase could be interpreted to refer only to the areola, to the
areola and those portions below the areola, but not those portions to
the side of the areola, or to the entire breast below the areola.    
          The Delaware
Superior Court reviewed a similar phrase for vagueness in State v. Fantasia Restaurant & Lounge, Inc., 2004 WL 483649
(Del. Sup. Ct. Mar. 9, 2004).  There, the
court held that the phrase was not unconstitutionally vague.  See id.
at *4.  The Fantasia court reasoned, 
And while the phrase ‘female breast below the top of the
areola’ could conceivably be open to some interpretation, this Court believes
that a person of ordinary intelligence could reasonably be expected to know
that the term refers to the entire area of the entire breast below the top of
the areola, not simply the strip of flesh the width of the areola below the top
of the areola.  
 
Id. at *4.  
This is also the
interpretation adopted by the Florida Supreme Court when it reviewed the same
issue.  See City of Daytona Beach v. Del Percio, 476 So.2d 197, 200 (Fla. 1985).  In Del
Percio, the court held that the phrase was not unconstitutionally vague.  See
id.  Similar to the Fantasia court, the Del Percio court stated, “The plain meaning of the statute is . . .
that no portion of the breast directly or laterally below the top of the areola
may be exposed to public view.”  See id. 

          After
giving effect to every word in the phrase, we agree with the Del Percio and Fantasia courts that, under the plain language of the Ordinance, a
person of ordinary intelligence would understand the phrase to describe the
entire breast that is below the top of the areola.  See Fantasia
Restaurant & Lounge, 2004 WL 483649, at *4; Del Percio, 476 So.2d at 200. 
To read the phrase in a manner consistent with one of the other variant
interpretations suggested by appellants would require us to ignore the complete
wording of the phrase: “any portion of [the female breast] that
is situated below a point immediately above the top of the areola.”  Thus, it is clear that the phrase does not
refer only to the areola and does not exclude portions of the breast lateral to
the areola, as appellants suggest.  
Appellants, however, contend
that to interpret the phrase to mean the entire breast that is below the top of
the areola “makes little sense either on a practical level or within normal
rules of construction.”  Appellants state,
“From a practical perspective, the end result is that exotic dancers would be
held to a higher standard than females who wear a bikini to a swimming pool,
the beach, or other function, [or] a low cut evening dress to a charity ball .
. . .”  Appellants assert that it is
unconstitutional to place a higher burden on an exotic dancer—whose conduct is constitutionally protected—than is placed on a person whose
conduct is not similarly protected.  We
disagree.  First Amendment protection
does not guarantee an exotic dancer the right to engage in the protected
expression at all times and places or in any manner that may be desired.  Howard, 172 S.W.3d at 192 (citing Hang
On, Inc. v. City of Arlington, 65 F.3d 1248, 1254 (5th Cir. 1995); 2300, Inc. v. City of Arlington, Texas,
888 S.W.2d 123, 127 (Tex. App.—Fort
Worth 1994, no pet.)).  
A governmental entity, when acting
to further legitimate ends of the community, may impose incidental burdens on
this protected expression through “content-neutral” regulations of time, place,
or manner.  Id. (citing Hang On, Inc., 65 F.3d at 1254; 2300,
Inc., 888 S.W.2d at 128).  An
ordinance is content-neutral if it is justified without reference to the
content of the regulated speech or expression and serves purposes unrelated to
the content of expression.  Howard, 172 S.W.3d at 192 (citing City of Renton v. Playtime Theatres, 475
U.S. 41, 49, 106 S. Ct. 925, 930 (1986)). 
“No touch” provisions, such as the one at issue here, have been deemed
to be content-neutral because they do not discriminate on the basis of the
content of the dance performance and are directed toward the secondary effects
of adult cabarets, including prostitution, drug dealing, and assault.  See Howard, 172 S.W.3d at 192; 2300,
Inc., 888 S.W.2d at 128; see also
Millennium Rest. Group, Inc. v. City of Dallas, Tex., 181 F. Supp. 2d 659,
665 (N.D. Tex. 2001).  
In addition, the Fifth Circuit Court
of Appeals has specifically held Ordinance 97–75 to be content-neutral.  See
N.W. Enters. Inc, 352 F.3d at 176. 
The court stated that the legislative history of Ordinance demonstrates
that the city’s predominant concern in enacting the Ordinance was to regulate
the secondary effects, i.e., the crimes, associated with the operation of
sexually oriented businesses.  See id.  Thus,
contrary to appellants’ contention, an exotic dancer performing in a sexually
oriented business may be subject to more restrictions “than
females who wear a bikini to a swimming pool, the beach, or other function, [or]
a low cut evening dress to a charity ball.” 

          We
conclude that the phrase “any portion of [the female breast] that is situated below a
point immediately above the top of the areola” provides a sufficient warning to place persons of ordinary intelligence
on notice regarding what conduct the Ordinance regulates and to prevent the
risk of arbitrary enforcement.  Thus, the
phrase, as used in the Ordinance, is not unconstitutionally vague.
          We
overrule appellants’ second issue in each appeal.  
Authority to Regulate Under Chapter
243 of Local Government Code
          In
their third issue, appellants contend that the Ordinance is “an unlawful
expansion of the City’s authority and violates the doctrine of preemption.”  
Appellants are each charged
with Class A misdemeanors for violating section 28–258 of the Ordinance.  This section prohibits entertainers from, inter alia, touching customers while
engaging in entertainment.  See Houston, Tex., Code of Ordinances, No. 97–75, § 28–258(a).  It also regulates other conduct of entertainers.  See
id.  Entertainers are also required
to obtain and to display a permit to engage in entertainment.  See
Houston, Tex., Code of Ordinances,
No. 97–75, § 28–253.  
The Ordinance’s penalty
provision associated with violating the conduct and permit provisions, provides
as follows: “The violation of any provision of this article, including the
doing of anything which is herein prohibited or declared to be unlawful or the
failure to do anything or perform any duty which is required herein, shall be
punishable as provided by Section 243.010(b) of the Local Government Code.”  See
Houston, Tex., Code of Ordinances,
No. 97–75, § 28–259(a).  Local
Government Code section 243.010(b) provides, “A person commits an
offense if the person violates a municipal or county regulation adopted under
this chapter.  An offense under this
subsection is a Class A misdemeanor.”  Tex. Loc. Gov’t Code Ann. § 243.010(b)
(Vernon 2005).  
Appellants assert that the
City of Houston did not adopt the provisions of the Ordinance regulating the
conduct and permitting of entertainers “under this chapter”; that is, it did
not adopt those regulations pursuant to Chapter 243 of the Local Government
Code.  Instead, appellants contend that
the City enacted those regulations, and the penalty for violating the
regulations, under its home-rule authority. 

Appellants contend that
because the provisions regulating employee conduct and permitting were enacted
under the City’s home-rule authority, and not pursuant to Chapter 243, “the
only authority the City has in relation to punishment is to enforce the
violations by fine only.”  See Tex.
Loc. Gov’t Code Ann. § 54.001(b) (Vernon 2008) (providing that a
violation of an ordinance may result in a fine only, not to exceed $2,000).  Appellants argue, “Continued prosecution
against appellant[s] for a Class A misdemeanor is an unlawful expansion of the
City’s authority in violation of the limits set forth in the Local Government
Code and the doctrine of preemption.”  
Here, we must ascertain
whether the City has the authority to impose a Class A misdemeanor penalty for
violating the Ordinance’s provisions regulating entertainer conduct and
permitting.  To do so, we must determine
whether the City was allowed to enact those provisions under the authority of
Chapter 243.  
We begin our analysis by examining
Chapter 243.  Generally, we construe
statutes as written and, when possible, ascertain the legislative intent from the
language used within the statute.  See Marcus Cable Assocs., L.P. v. Krohn,
90 S.W.3d 697, 706 (Tex. 2002).  We also
construe the statute as a whole and will not give one provision a meaning which
is out of harmony or inconsistent with other provisions of the statute.  Id.  
This Court has previously stated,
“Chapter 243 is the enabling legislation that permits municipalities to
regulate sexually oriented businesses.”  Haddad, 9 S.W.3d at 459.  Chapter 243 provides that “[a] municipality
by ordinance . . . may adopt regulations regarding sexually oriented businesses
as the municipality or county considers necessary to promote the public health,
safety, or welfare.”  See Tex.
Loc. Gov’t Code Ann. § 243.003(a) (Vernon 2005).  As one court recognized, “[I]t is apparent
that the Legislature intended to provide a broad framework for regulation of
certain ‘sexually oriented businesses’ while authorizing municipalities and
counties to enact ordinances within that framework.”  See State
v. Chacon, 273 S.W.3d 375, 379 (Tex. App.—San Antonio 2008, no pet.).  
Appellants point to sections
243.006 and 243.007 to support their claim that the City regulates the conduct
of entertainers who work in sexually oriented businesses under its home-rule
authority and not under the authority of Chapter 243.  Sections 243.006 and 243.007 authorize a
municipality to restrict or prohibit the location of a sexually oriented
business and to require an owner or operator to obtain a license or permit to
operate the business.  Tex. Loc. Gov’t Code Ann. § 243.006(a)
(providing that municipality may restrict location of sexually oriented
businesses); § 243.007(a) (providing that municipality may require owner or
operator of sexually oriented business to obtain license or permit).  Citing sections 243.006 and 243.007, appellants
contend that the City’s authority to enact ordinances pursuant to Chapter 243
is limited to regulating the location of sexually oriented businesses and to
permitting the owner/operator of such businesses.  For this reason, they argue that the enforcement
provision of the Local Government Code, section 243.010, applies only to
location or owner/operator permit violations; it does not apply to violations
of the Ordinance provisions regulating entertainer conduct.   
We disagree that Chapter 243
does not contemplate a city’s regulation of the conduct of persons working in
sexually oriented businesses.  See Chacon, 273 S.W.3d at 381; see also Ex Parte Smalley, 156 S.W.3d
608, 610–611 (Tex. App.—Dallas 2004, pet. dism’d); Thompson, 44 S.W.3d at 176; Flores,
33 S.W.3d at 916; Haddad, 9 S.W.3d at
458.  In enacting Chapter 243, the legislature
expressly found that “the unrestricted operation of certain sexually oriented
businesses may be detrimental to the public health, safety, and welfare by
contributing to the decline of residential and business neighborhoods and the
growth of criminal activity.”  Tex. Loc. Gov’t Code Ann. § 243.001(a).
 The purpose of Chapter 243 is to give
local governments a means of dealing with this problem.  Smalley,
156 S.W.3d at 611 (citing Tex. Loc. Gov’t
Code Ann. § 243.001(a)).  
The legislature granted cities
broad authority to “adopt regulations regarding sexually oriented businesses as
the municipality . . . considers necessary to promote the public health,
safety, or welfare.”  Tex. Loc. Gov’t Code Ann. § 243.003(a).
 Chapter 243 further states that “[t]his
chapter does not diminish the authority of a local government to regulate
sexually oriented businesses with regard to any
matters.”  Tex. Loc. Gov’t Code Ann. § 243.001(b) (emphasis added); see Haddad, 9 S.W.3d at 459 (“Clearly,
the conduct of individual employees, as it relates to activities of the
sexually oriented business, falls within the ambit of ‘any matters.’”).  “Neither the stated purpose nor the broad
grant of authority contained within section 243.003 limits the type of
municipal regulations contemplated under [Chapter 243].”  Chacon,
273 S.W.3d at 380–81.  
Although sections 243.006
and 243.007 authorize a city to regulate the location of the business and
permitting of the owner/operator of a sexually oriented business, nothing in
the language of those sections limits the entirety of Chapter 243, or the penal
provisions of section 243.010, to those regulations.  See Smalley,
156 S.W.3d at 611.  We disagree with the
premise that the enforcement provision of section 243.010(b) applies only to violations
of owner/operator permitting and zoning-type regulations.  See id.  We conclude that the Ordinance’s provisions
regulating the conduct and permitting of entertainers are authorized under
Chapter 243.  See Thompson, 44 S.W.3d at 176.  Thus, the City properly made violations of
those provisions punishable as Class A misdemeanors.  See
Chacon, 273 S.W.3d at 381.  We hold
that the Ordinance is not “an unlawful expansion of the City’s authority in
violation of the limits set forth in the Local Government Code and the doctrine
of preemption,” as claimed by appellants.
We overrule appellants’
third issue in each appeal.
Disproportionate Punishment
In their fourth issue, appellants
contend that the Ordinance is unconstitutional under the Eighth Amendment to
the United States Constitution and Article I, section 13 of the Texas
Constitution because it authorizes punishment not proportionate to any offense
committed for violating the Ordinance.[12]  
The Eighth Amendment, which
forbids cruel and unusual punishments, contains a narrow proportionality
principle prohibiting a sentence from being greatly disproportionate to the
crime it punishes.  See Ewing v. California, 583 U.S. 11, 20, 123 S. Ct. 1179, 1185
(2003) (citing Harmelin v. Michigan,
501 U.S. 957, 996–997,
111 S. Ct. 2680, 2702 (1991) (Kennedy, J., concurring in part and concurring in
judgment)).  Embodied in the Constitution’s
ban on cruel and unusual punishments is the “precept of justice that punishment
for crime should be graduated and proportioned to [the] offense.”  Weems
v. United States, 217 U.S. 349, 367, 30 S. Ct. 544, 549 (1910).  The Eighth Amendment does not require strict
proportionality between crime and sentence; rather, it forbids only extreme
sentences that are grossly disproportionate to the crime.  See Ewing,
583 U.S. at 23, 123 S. Ct. at 1187.  
In Graham v. Florida, __U.S.__, 130 S. Ct. 2011 (2010), the Supreme Court of the
United States stated that generally there are two classifications of
proportionality challenges to sentences.  “The first involves challenges to the length
of term-of-years sentences given all the circumstances in a particular case.” Graham, 130 S. Ct. at 2021.  Under this approach, courts must determine
“whether a sentence for a term of years is grossly disproportionate for a
particular defendant’s crime.”  Id. at 2022.  
“The second classification
of cases has used categorical rules to define Eighth Amendment standards.”  Id.  This classification consists of two subsets,
one considering the nature of the offense, the other considering the
characteristics of the offender.  Id.  Here, we are presented with a categorical
challenge turning on the nature of the offense. 

As discussed, a violation of
any provision of the Ordinance is a Class A misdemeanor.  See
Houston, Tex., Code of Ordinances,
No. 97–75, §§ 28–133(a), 28–259(a); Tex.
Loc. Gov’t. Code Ann. § 243.010(b).  Appellants contend that punishing a
violation of the Ordinance as a Class A misdemeanor is disproportionate to the
offense.  Appellants argue the
disproportionate nature of the punishment is shown within the Ordinance
itself.  Appellants point out that any
violation of the Ordinance, whether it is a permitting violation or a conduct
violation, is punished as a Class A misdemeanor.  Appellants assert, “The failure to address
even elementary situational distinctions should be sufficient itself to
illustrate the point that the statute was never designed to correlate the
punishment with the crime.”  
Appellants further asserts, “The
clearest argument for disproportionality exists when comparing the punishment
for [sexually oriented business] ordinance violations with that of prostitution—likely the primary evil
the [ ] ordinance was designed to curtail.” 
Appellant emphasizes that, while a violation of the Ordinance is a Class
A misdemeanor, the offense of prostitution is a Class B misdemeanor.
When faced with a
categorical challenge, such as the one here, the judiciary, in determining
whether the punishment at issue is grossly disproportionate to the offense,
must consider the following: (1) whether there is a national consensus against
imposing the punishment for the offense; (2) the moral culpability of the
offenders at issue in light of their crimes and characteristics; (3) the
severity of the punishment; and (4) whether the punishment serves legitimate
penological goals.  Graham, 130 S. Ct. at 2022, 2026; see Meadoux v. State, 325 S.W.3d 189, 194 (Tex. Crim. App. 2010).  It is an appellant’s burden to show these
factors.  Meadoux, 325 S.W.3d 194 n.7.
Here, there is no evidence or
discussion of a national consensus against prosecuting a violation of the
Ordinance as a Class A misdemeanor.  With
regard to moral culpability, we can think of no reason why exotic dancers would
not be morally culpable for violating the Ordinance.  Cf. Meadoux,
325 S.W.3d at 194–95
(discussing juvenile defendant’s argument that he was less morally culpable for
murder than adult offenders in support of his contention that life in prison
for juvenile offenders is disproportionate sentence).  
For violating the Ordinance,
a Class A misdemeanor, an offender can be fined up to $4,000, confined in jail
for a term not to exceed one year, or receive both punishments.  See Tex. Penal Code Ann. § 12.21.  While it is not inconsequential, such
punishment is less than the punishment range for offenses that the Ordinance
was enacted to prevent, such as narcotics and prostitution violations.  See N.W.
Enters. Inc., 352 F.3d at 176 n.7 (detailing that Ordinance 97–75 enacted to prevent associated
crimes, including narcotics offenses).  For
example, the offense of possession of less than one gram of a Penalty 1
controlled substance is a state jail felony, which has a punishment range of
not more than two years or less than 180 days’ imprisonment.  Tex.
Health & Safety Code Ann. § 481.115(a) (Vernon 2010); Tex. Pen. Code Ann. § 12.35(a)
(Vernon 2011).  
Significantly, certain
prostitution offenses, which, as mentioned, appellants characterize as “the primary
evil the [ ] ordinance was designed to curtail,” have punishment ranges greater
than or equal to that of a violation of the Ordinance.  The offense of prostitution is raised from a
Class B misdemeanor to Class A misdemeanor if the offender has previously been
convicted of prostitution once or twice under Penal Code section 43.02.  See
Tex. Penal Code Ann.
§ 43.02 (Vernon 2011).  Section
43.02 further provides that if an offender has been previously convicted three
or more times under that section, then the offense is a state jail felony.  See
id.  
Penal Code sections 43.03
and 43.04 define criminal offenses for promoting prostitution.  See
Tex. Penal Code Ann.
§§ 43.03, 43.04 (Vernon 2011). 
Offenses relating to the promotion of prostitution range from a Class A
misdemeanor to a third-degree felony.  See  Tex.
Penal Code Ann. §§ 43.03(b), 43.04(b).  In addition, Penal Code section 43.05 defines
the offense of “compelling prostitution” as a second-degree felony.  See
Tex. Penal Code Ann. § 43.05
(Vernon 2011).  
With respect to penological
goals, a sentence can have a variety of justifications, such as incapacitation,
deterrence, retribution, or rehabilitation. 
Ewing, 583 U.S. at 25, 123 S. Ct.
at 1187; see Meadoux, 325 S.W.3d at
195.  Some or all of these justifications
may play a role in a State’s sentencing scheme.  Id.  Selecting the sentencing rationales is
generally a policy choice to be made by state legislatures, not the courts.  Id.  Indeed, the Texas Legislature, when it
enacted Chapter 243, observed that “the unrestricted operation of certain
sexually oriented businesses may be detrimental to the public health, safety,
and welfare by contributing to the decline of residential and business
neighborhoods and the growth of criminal activity.”  Tex.
Loc. Gov’t Code Ann. § 243.001(a).  The legislature gave cities broad authority to
“adopt regulations regarding sexually oriented businesses as the municipality .
. . considers necessary to promote the public health, safety, or welfare.”  Tex.
Loc. Gov’t Code Ann. § 243.003(a).  As discussed by the Fifth Circuit in N.W. Enterprises, Ordinance 97–75 was enacted specifically to
regulate and to prevent a gamut of criminal offenses associated with the
operation of sexually oriented businesses. 
N.W. Enters. Inc., 352 F.3d at
176 & n.7.  Prosecuting violations of
the Ordinance as a Class A misdemeanor is justified to deter continuing
violations of the Ordinance that legislative bodies have determined leads to
greater criminal activities.  
We conclude that appellants
have not carried their burden to show that the punishment range for a Class A
misdemeanor is grossly disproportionate to the offense of violating the Ordinance.
We overrule appellants’
fourth issue in each appeal.
Conclusion
          We
affirm the orders of the trial court denying appellants’ habeas relief in each
appeal.
 
 
Laura Carter Higley
                                                                   Justice

 
Panel consists of
Justices Keyes, Higley, and Yates.[13]
 
Publish.   Tex. R. App. P. 47.2(b). 
 
 




[1]           Appellate cause numbers 01–10–00616-CR and 01–10–00617-CR arise from the
trial court’s denial of the habeas relief sought by appellant, Patricia
Rivera.  Appellate cause numbers 01–10–00618-CR and 01–10–00619-CR relate to the
denial of the habeas relief sought by appellants, Telia D. Casel and Joanna Lynn Walton,
respectively.  All four appellants are
being prosecuted pursuant to City of Houston Ordinance No. 97–75.  In the
trial court, appellants sought the same habeas relief based on identical
grounds and arguments.  Appellants also
raise identical arguments and issues on appeal. 
Therefore, for purposes of judicial economy, we consider the appeals
together.
 


[2]           The Ordinance has been codified in Chapter 28,
Articles II, III, and VIII of the City of Houston’s Code of Ordinances.  


[3]           Houston,
Tex., Code of Ordinances, No. 97–75, § 28–253(a).
 


[4]           Houston,
Tex., Code of Ordinances, No. 97–75, § 28–258(a).


[5]           The State contends that the orders
denying habeas relief should be affirmed because a copy of the Ordinance is not
included in the record, and appellants have not offered a certified copy of the
Ordinance on appeal.  We decline the
State’s invitation to affirm on this basis. 
Rule of Evidence Rule 204 applies to all courts, including this Court,
and authorizes us, on our own motion to take judicial notice of a municipal
ordinance.  See Tex. R. Evid. 204;
see also Flores v. State, 33 S.W.3d
907, 922 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).  In Flores,
our sister court took judicial notice on its own motion of Ordinance 97–75, the same ordinance
at issue here.  See Flores, 33 S.W.3d at 922. 
In taking judicial notice, the Flores
court noted that (1) the trial court had taken judicial notice of the
ordinance, (2) neither party disputed that the correct statement of the law had
been applied by the trial court, (3) the appellant had recited the pertinent
provisions of the ordinance in her brief, and (4) the pertinent provisions of
Ordinance 97–75 were posted on the City of Houston’s Internet web page.  See id.  The court reasoned, “Consequently, this court
may readily verify the pertinent sections of the Ordinance and review the
sufficiency of the evidence in light of these provisions.”  Id.  Similarly, here, (1) the trial court
noted in its conclusions of law that it took judicial notice of the Ordinance,
(2) the parties do not dispute the content of the Ordinance, (3) appellants set
out specific provisions of the Ordinance in their briefs, and (4) the City’s
website provides a link to the Ordinance. 
Thus, we can ascertain the relevant provisions of the Ordinance to
review the issues appellants present.  As
did the Flores court, we take
judicial notice of Ordinance 97–75.  See id.;
see also Tex. R. Evid. 204.  
 


[6]
       The
Supreme Court of the United States explained that while nude dancing “falls
only within the outer ambit of the First Amendment’s protection,” it is
nevertheless protected as expressive conduct. 
City of Erie v. Pap’s A.M.,
529 U.S. 277, 289, 120 S. Ct. 1382, 1391 (2000) (plurality opinion).  
 


[7]           Appellants acknowledge that the O’Brien test for content-neutral
restrictions on expressive conduct apply to their overbreadth challenge to the
Ordinance.  Under this
intermediate-scrutiny test, we will find a content-neutral regulation to be
constitutional, despite its adverse impact on the exercise of First Amendment
rights, if (1) it is within the constitutional power of the government; (2) it
furthers an important or substantial governmental interest; (3) the asserted
governmental interest is unrelated to the suppression of free expression; and
(4) the incidental restrictions on alleged First Amendment freedoms are no
greater than is essential to the furtherance of that interest.  United
States v. O’Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 1679 (1968).  Appellants’ overbreadth claim focuses on the
fourth factor.  They contend that,
without requiring a culpable mental state, the criminalization of the touching
of a customer and the failure to obtain a permit is a greater restriction on
free expression than is necessary to further the City of Houston’s interests
because it criminalizes accidental and inadvertent conduct.  See
Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1254 (5th Cir. 1995)
(rejecting this argument with respect to no touch provision of City of
Arlington ordinance).


[8]           As appellants point out, no evidence
was offered in the trial court to establish the purpose behind enacting the
Ordinance.  As stated by the Fifth
Circuit in N.W. Enters. Inc. v. City of Houston, “[t]he City need
not relitigate this issue every time its [sexually oriented business]
ordinances are challenged.”  352 F.3d 162,
176 (5th Cir. 2003).  In other words, the
City need not establish in each case in which the constitutionality of the
Ordinance is challenged that “predominate concern was to regulate the secondary
effects of the [sexually oriented businesses]” when such legislative concern
had been previously established in another case.  See id.


[9]           We note that the charging instruments
contained in the record assert that appellants “intentionally and knowingly”
violated the Ordinance.  
 


[10]         In their second issue, appellants assert
that the Ordinance is unconstitutionally vague and overly broad.  Appellants’ briefing in support of their
second issue focuses on the vagueness claim. 
Summary statements reminiscent of an overbreadth claim are interspersed
in the predominating vagueness arguments, but any such contentions are not
specifically developed, identified, or supported with authority.  See Tex. R. App. Proc. 38.1(i).  A brief to this Court must contain more than
summary statements.  See id.  Therefore, as
appellants do, we focus on their vagueness claims.  We are, however, aware, as noted by Judge
Onion, that “[t]he overbreadth and vagueness doctrines are conceptually
distinct, but in the First Amendment context they tend to overlap since
statutes are often overly broad because their language is vague about what
behavior is proscribed.”  Sanchez v. State, 974 S.W.2d 307, 312
(Tex. App.—San Antonio 1998), rev’d on
other grounds, 974 S.W.2d 307 (Tex. Crim. App. 1998).  


[11]         We recognize that the vagueness
challenge in Flores was an “as
applied” challenge, rather than a facial challenge to the Ordinance.  Nonetheless, the portion of the Flores court’s analysis cited above
applies equally to a facial challenge.  We
do not rely on the portion of the Flores opinion
discussing and analyzing the specific evidence in that case. 


[12]
      Appellants
do not argue that Article I, section 13
of Texas Constitution provides any more or different protection than its
federal counterpart.  Accordingly, we
examine their argument solely under the Eighth Amendment.  See
Buster v. State, 144 S.W.3d 71, 81 (Tex. App.—Tyler 2004, no pet.); see also
Baldridge v. State, 77 S.W.3d 890, 893-94 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).


[13]         The Honorable Leslie Brock Yates, former
Justice, Court of Appeals, Fourteenth District of Texas at Houston,
participating by assignment.


