









Affirmed and Opinion filed April 29, 2004








Affirmed and Opinion filed April 29, 2004.
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-03-00666-CR
____________
 
CHARLES S.
SPINGOLA,
Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 

 
On Appeal from the County
Court at Law
Walker County, Texas
Trial Court Cause No. 01-597
 

 
O P I N I O N
Appellant entered a plea of not guilty to
the offense of criminal trespass.  He was
convicted and the jury assessed punishment at confinement for one day in the
Walker County Jail and a fine of $800. 
In four points of error, appellant contends (1) the evidence is legally
insufficient to support his conviction, (2) the criminal trespass statute was
unconstitutionally applied, (3) the trial court erred in failing to instruct
the jury on probable cause, and (4) the trial court erred in refusing to allow
counsel to question prospective jurors about their opinions on the issue of
abortion.  We affirm.




Background
On March 5, 2001, Dean Frank Parker of Sam
Houston State University received a call about several people gathered in the
mall area of campus.  In the mall area,
Dean Parker discovered a crowd of thirty to forty people gathered around
appellant, who was speaking about abortion. 
Dean Parker told appellant he was welcome to remain on campus, but
needed to move to the area designated as the free expression area.  Appellant refused to move to the free
expression area after being asked five times to move.  Dean Parker then told appellant that if he
did not move to the free expression area in compliance with University policy,
he would have to leave the campus. 
Appellant refused, stating he had a right to free speech.  Dean Parker agreed with appellant=s right to free
speech, but explained the University had a time, place, and manner restriction
on campus.  Dean Parker further testified
that he was concerned for appellant=s and his listeners= safety because of
on-going construction in the area where appellant was speaking.  Appellant was subsequently arrested because
he refused to leave the campus after repeatedly being asked to move to the free
expression area.
Appellant testified that he had been to
the University before to speak and that the free expression area was adjacent
to a fountain, which made it noisy and difficult for his listeners to hear
him.  Appellant further testified that
had he known he was going to be arrested, he would have moved to the free
expression area.
Constitutional Question
In his second issue, appellant contends
the criminal trespass statute was unconstitutionally applied to him.  The question to be resolved is whether appellant=s conviction for
criminal trespass violated his right of free expression as guaranteed by the
United States and Texas Constitutions.  U.S. Const. amend. I; Tex. Const. art. I, ' 8.




Nothing in the Constitution requires a
governmental entity to freely grant access to all who wish to exercise their
right to free speech on every type of government property without regard to the
nature of the property or to the disruption that might be caused by the speaker=s activities.  Cornelius v. NAACP Legal Defense &
Educational Fund, Inc., 473 U.S. 788, 799-800, 105 S.Ct. 3439, 3447, 87
L.Ed.2d 567 (1985).  Recognizing that the
government has power to preserve the property under its control for the use to
which it is lawfully dedicated, the Supreme Court has adopted a forum analysis
as a means of determining when the government=s interest in
limiting the use of its property to its intended purpose outweighs the interest
of those wishing to use the property for other purposes.  Perry Education Assn v. Perry Local
Educators= Assn, 460 U.S. 37, 45-46, 103 S.Ct. 948,
954-55, 74 L.Ed.2d 794 (1983).  
In applying the forum analysis, the Court
has found that public places may generally be divided into three
categories.  The first, the Aquintessential
public forums,@ includes those places that by long
tradition or by government fiat have been devoted to assembly and debate, such
as parks, streets, and sidewalks.  Id.,
460 U.S. at 45, 103 S.Ct. at 954.  In
those places, expressive activity will rarely be incompatible with the intended
use of the property.  See Schneider v.
State, 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939).  The second category, which has been referred
to as forums by designation, or limited public forums, consists primarily of
government property that the government has opened for use as a place for
expressive activity for a limited amount of time, or a limited class of
speakers.  See Heffron v.
International Society for Krishna Consciousness, Inc., 452 U.S. 640, 655,
101 S.Ct. 2559, 2567, 69 L.Ed.2d 298 (1981); Widmar v. Vincent, 454 U.S.
263, 268, 102 S.Ct. 269, 273-74, 70 L.Ed.2d 440 (1981).  The third category, nonpublic forums,
consists of property that is not compatible with general expressive activity.  




In both public and limited public forums,
people generally have a First Amendment right to engage in expressive activity
on the property.  Perry, 460 U.S.
at 45, 103 S.Ct. at 955.  The right to
engage in expressive activity on public property is not absolute, but may be
regulated by the government as to the time, place, and manner of the expressive
activity in order to accommodate the interest of all members of the public to
enjoy the use of the public space.  Hague
v. CIO, 307 U.S. 496, 516, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939).  Such restrictions must be Ajustified without
reference to the content of the regulated speech,@ be Anarrowly tailored
to serve a significant governmental interest,@ and Aleave open ample
alternative channels for communication.@  Clark v. Community for Creative
Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221
(1984).  
The Supreme Court has recognized that
First Amendment rights must be analyzed Ain light of the
special characteristics of the school environment.@  Tinker v. Des Moines Independent School
District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969).  A university differs in significant respects
from public forums such as streets or parks in that a university=s mission is
education.  Widmar, 454 U.S. at
268, 102 S.Ct. at 274.  A campus need not
make all of its facilities equally available to students and non-students
alike, nor must a university grant free access to all of its grounds or
buildings.  Id.  
Here, appellant contends the university
was either a public or limited public forum subject to reasonable time, place,
and manner restrictions.  We agree.  Appellant contends, however, that the
University=s time, place, and manner restrictions
only apply to parades, demonstrations, and rallies.  Because he was not conducting a parade,
demonstration, or rally, appellant contends he was not required to move to the
free expression area.  In making this
contention, appellant refers to the University policy titled, AParades,
Demonstrations or Rallies, and Use of the Free Expression Area.@  Although the policy addresses parades,
demonstrations, and rallies, it also addresses Aall other persons
and groups.@ 
Section 3.8 of the policy provides that AAll other persons
and groups may assemble and demonstrate only in the Free Expression Area
between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday.@  Therefore, the University=s time, place, and
manner restrictions apply to all persons and groups seeking to assemble or
speak on the campus.




Appellant contends, in his brief, that ADean Parker
confirmed in his testimony that Rev. Spingola was not in violation of the
University=s policy on parades, demonstrations, and
rallies because he was not conducting a demonstration, parade or rally[.]@  In his testimony, Dean Parker stated that
appellant was not conducting a parade, demonstration, or rally; he did not
state that appellant was not in violation of the University=s time, place, and
manner restrictions.
The purpose of the criminal trespass
statute is not to regulate speech.  See
Tex. Pen. Code Ann. ' 30.05.  Its purpose is to regulate conduct.  Otwell v. State, 850 S.W.2d 815, 818
(Tex. App.CFort Worth 1993, pet. ref=d).  A general trespass statute may be
constitutionally applied, even to those who trespass to communicate, as long as
the statute is applied without discrimination and is not used for the primary
purpose of suppressing speech.  Reed
v. State, 762 S.W.2d 640 644 (Tex. App.CTexarkana 1988,
pet. ref'd).  The criminal trespass
statute provides that a person commits an offense if he enters or remains on
property or in a building of another without effective consent and he received
notice to depart but failed to do so.  Tex. Pen. Code Ann. ' 30.05.  The evidence shows that appellant was not
asked to leave the premises until he refused five requests to move to the free
expression area.  There is no evidence
appellant was asked to move to the free expression area because of the content
of his message.  Under those facts, the
enforcement of the criminal trespass statute did not violate appellant=s rights of
expression under the United States or Texas Constitutions.  Appellant=s second issue is
overruled.
Sufficiency of the Evidence
In his first issue, appellant contends the
evidence is legally insufficient to support a conviction for criminal
trespass.  Specifically, appellant
contends the State failed to prove he knowingly remained on University grounds
after having been asked to leave.




When reviewing legal sufficiency, we view
the evidence in the light most favorable to the verdict, asking whether 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, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Wesbrook
v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  The jury, as trier of fact, is entitled to
resolve any conflicts in the evidence, to evaluate the credibility of
witnesses, and to determine the weight to be given any particular evidence.  See Jones v. State, 944 S.W.2d 642,
647 (Tex. Crim. App. 1996).  When, as in
this case, the trial court=s charge
authorized the jury to convict on several different theories, we will uphold
the verdict of guilt if the evidence is sufficient on any one of the
theories.  Rabbani v. State, 847
S.W.2d 555, 558B559 (Tex. Crim. App.1992).
A person commits the offense of criminal
trespass if he Aenters or remains on property or in a
building of another without effective consent and he: . . . received notice to
depart but failed to do so.@  Tex.
Pen. Code Ann. ' 30.05. 
The evidence is undisputed that appellant violated the criminal trespass
statute by remaining on University property after being asked to leave.  Appellant argues that he thought he was
entitled to remain in the area where he was speaking; therefore, he had no
intent to commit a crime.  No culpable
mental state is required, however, for a conviction under section 30.05 other
than a volitional refusal to leave when requested.  Reed, 762 S.W.2d at 646.  We have concluded that appellant=s constitutional
rights were not violated when he was asked to move to the free expression
area.  Appellant repeatedly refused to
move to the free expression area.  After
refusing to move to the free expression area, appellant was asked to leave the
campus, and he refused.  Therefore, the
evidence is sufficient to support appellant=s conviction.  Appellant=s first issue is
overruled.
Probable Cause Instruction
In his third issue, appellant contends the
trial court erred in denying his request to include a definition and
instruction with regard to probable cause under article 38.23 of the Texas Code
of Criminal Procedure.  Probable cause
exists where the police have reasonably trustworthy information sufficient to
warrant a reasonable person to believe a particular person has committed or is
committing an offense.  Guzman v.
State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).  The determination of the existence of
probable cause concerns the factual and practical considerations of everyday
life on which reasonable and prudent people act.  Id. 





Article 38.23(a) of the Texas Code of
Criminal Procedure requires the jury to decide the lawfulness of an arrest or
search only when the facts regarding the arrest or search are in
controversy.  Ballentine v. State,
71 S.W.3d 763, 773 (Tex. Crim. App. 2002). 
Here, there is no dispute as to the facts surrounding appellant=s arrest.  Appellant was repeatedly asked to move to the
free expression area.  When he refused to
do so, he was asked to leave the premises. 
When he refused to leave, he was arrested.  Although appellant testified, he did not
controvert those facts.  Because there
was no factual dispute, no instruction was required.   See id.  Appellant=s third issue is
overruled.
Voir Dire
In his fourth issue, appellant contends
the trial court erred in refusing to allow defense counsel to question the
prospective jurors as to their opinion on abortion.  We review a trial court=s ruling regarding
questioning of the venire during voir dire for abuse of discretion.  Skinner v. State, 956 S.W.2d 532, 542
(Tex. Crim. App. 1997); Nunfio v. State, 808 S.W.2d 484, 484 (Tex. Crim.
App. 1991). The propriety of the question determines whether the trial court
abused its discretion.  Nunfio,
808 S.W.2d at 484.  If a question seeks
to discover a juror=s view on an issue applicable to the case,
it is a proper question.  Id.  The trial court abuses its discretion if it
disallows a proper question.  Goff v.
State, 931 S.W.2d 537, 545‑46 (Tex. Crim. App. 1996).
Appellant contends the trial court erred
in refusing to allow him to ask the following question:




MR. KLASING [defense counsel]:
Okay, great.  Now for the biggy.  One of the topics that Mr. Spingola talks
about a lot when he=s around is abortion, and I hate to
even bring up this issue, but I need to talk about it just briefly.  Obviously he preaches against it when he goes
to different places, and that can be a very sensitive issue for a lot of
people.  You know, I think people are on
either side of that issue, for the most part, and it will be almost like
talking about the war.  In some places in
this country right now people are pretty hot on both sides of that issue as
well, so having mentioned that, you know, don=t kill the messenger because of the
message he=s delivering, all right, and I want
to make sure that because of the message that Mr. Spingola delivered in his
profession during this time, that=s not going to cause you to be biased, you know, toward him
or against him, and I B 
 
MR. ESQUIVEL [prosecutor]:
Objection, Your Honor.  This is
irrevlevant.
THE COURT: Sustained.
 
MR. KLASING: I want to make sure
that nobody here, you know, would feel biased toward Mr. Spingola because of
his beliefs.  Is there anybody that feels
that way?  I just want to ask the panel
generally.  How about over here?
 
(No
response.)
 
Appellant=s counsel did not
ask the veniremembers about their views on abortion, only whether they would be
biased against appellant for his views on abortion.  To preserve error, a defendant=s trial objection
must comport with the issue raised on appeal. 
Banda v. State, 890 S.W.2d 42, 62 (Tex. Crim. App. 1994).  At trial, appellant asked the venire if they
would be biased against appellant because of his views on abortion.  On appeal, appellant complains he was not
allowed to ask potential jurors about their views on abortion.  Appellant has not preserved error because his
issue does not comport with the question he asked at trial.  Further, although the prosecutor=s objection was
sustained, appellant=s counsel was allowed to ask the venire
whether they would be biased toward appellant based on his beliefs.  The veniremembers, by their silence,
indicated they would not be biased. 
Appellant=s fourth issue is overruled.
 
 
/s/      John S. Anderson
Justice
 
Judgment
rendered and Opinion filed April 29, 2004.
Panel
consists of Justices Yates, Anderson, and Hudson.
Publish
C Tex. R. App. P. 47.2(b).

