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                                         Case No. 002-84828-2013

 THE STATE OF TEXAS                                                          IN THE COUNTY COURT
                                                                                          FILED IN
                                                                                   5th COURT OF APPEALS
 vs.                                                                                   DALLAS,
                                                                                         ATLAW#2TEXAS
                                                                                   3/10/2015 3:09:13 PM
 FARHAD NAYEB                                                               COLLIN COUNTY,    TEXAS
                                                                                         LISA MATZ
                                                                                           Clerk

        JUDGMENT - PLEA OF NOT GUILTY BEFORE COURT- FOUND NOT GUILTY

      The defendant has been charged by information with the misdemeanor offense of Comphrehensive
Zoning Ordinance City Ordinance - Money Transmission. This case was called for trial; the State of
Texas appeared; and the defendant appeared and either had counsel or waived counsel, any waiver having
been voluntarily, knowingly, and intelligently made. Both parties announced ready for trial. The
defendant was arraigned or waived arraignment and pleaded Not Guilty. The defendant knowingly,
voluntarily and intelligently waived a trial by jury, and the State consented to the waiver in writing. The
Court, having heard the information read, the defendant' s plea, the evidence submitted, and the argument
of counsel, is of the opinion that the defendant is not guilty.

        It is therefore ORDERED, ADJUDGED and DECREED that the defendant is acquitted of the
offense of Comphrehensive Zoning Ordinance City Ordinance - Money Trallismission, and is
immediately discharged from all further liability in this case. The defendant is hereby informed of the right
to an expunction of the records pertaining to this case, upon the defendant's written request to the trial
Court and after notice to the State of Texas and a hearing, not later than thirty days after the date of
acquittal.

       SIGNED on this the 20th day of February, 2014.



                                                                ~..;;yz_;~
                                                                  ettWalker --
                                                                   Judge Presiding




                                                                                                                1
        Nos. 002-82536-2013, 002-82537-2013, 002-82538-2013,
   002-82539-2013,002-82540-2013,002-82554-2013,002-82564-2013,
   002-84811-2013,002-84812-2013,002-84813-2013,002-84814-2013,
   002-84824-2013,002-84825-2013,002-84826-2013,002-84827-2013,
   002-84828-2013,002-84829-2013,002-84830-2013,002-84831-2013,
   002-84832-2013, 002-84833-2013, 002-84834-2013, 002-84835-2013,
   002-84836-2013, 002-84837-2013, 002-84838-2013, 002-84839-2013,
   002-84840-2013,002-84841-2013,002-84842-2013,002-84843-2013,
   002-84844-2013, 002-84845-2013, 002-84846-2013, 002-84847-2013,
                   002-84848-2013,002-84849-2013

THE STATE OF TEXAS                      §        IN THE COUNTY COURT
                                        §
          v.                            §        ATLAWNUMBER N0.2
                                        §
FARHADNAYEB                             §        COLLIN COUNTY, TEXAS

            STATE'S NOTICE OF VOID JUDGMENT AND
                   MOTION TO RECONSIDER

      The State of Texas, by the Collin County Criminal District Attorney,

files this Notice of Void Judgment and Motion to Reconsider, and would

show the following:

        1. The Court Held a Hearing on the Validity of Melissa's
                          Zoning Ordinance
                                                                 ;:o              ......,   n
                                                                 -< ("')          «::2      0
      On January 20 and February 20, 2014, the Court condu "e<f3 heatjg ~
                                                              Cn(/) :x-        - 1
                                                              ;z:: g     ::::0
                                                                            -j -< _,,
on the Defendant's Motion Challenging the Constitutionality          Qit}::pf 8r~
                                                                          -<-<              c , ·'1
                                                                 \     ~~:::<::   :x-       ::r. D
Melissa's Revised Zoning Ordinance No. 92-08 in the abo _, ~b~d ~
                                                                 ~ ~               ..
cases and in cause no. 002-82434-2013. The cases were conso~ated by tile .,....

agreement of the parties. During the hearing, the Court stated that the only

                                            1




                                                                                                      2
purpose of the hearing was to determine the constitutionality of the

ordinance. 1 RR 5; 2 RR 10-11. 1 Counsel for the defendant likewise

acknowledged the proceeding was not a trial. 2 RR 21-22. The defendant did

not enter a plea, no waiver of jury trial was signed by the Defendant or the

State, and the record does not otherwise reflect a jury was empaneled.

                 2. The Court Found the Ordinance Unconstitutional

         The Court heard arguments of counsel and the testimony of one

witness. At the conclusion of the hearing, the Court stated as follows: "So

with regard to the tickets that were originally issued, the Court finds that at

that time under the - Melissa's old ordinance that the Code was

constitutionally void for vagueness. No one could have anticipated and been

put on proper notice as to what an accessory use is." 2 RR 50-51. The Court

then recessed the hearing. 2 RR 51. Later the same day, the Court went back

on the record:

                   TilE COURT: Back on all the cases of State of Texas
         versus Farhad Nayeb, 002-84829-2013.

               The Court finds the City of Melissa's prior city ordinance
         was constitutionally void for vagueness. Therefore the
         defendant could not have violated the ordinances. Therefore the

         1
             " 1 RR" refers to the reporter's record of the January 20, 2014 hearing. "2 RR" refers to the

reporter' s record of the February 20, 2014 continuation of the hearing.

                                                          2




                                                                                                             3
                                                                        - - - - --------·-·        ··-   ..




        Court fmds the defendant is not guilty in each offense. The new
        city ordinance has however cured this situation.
        Any objection from the State?

                 MS. FOX: No, Your Honor.

               THE COURT: So ordered. This takes care of those 50
        cases. 2 RR 51-52.

                                 3. The Written Judgment

        On February 20, 2014, the Court signed a judgment of acquittal in

each case. The document is titled "JUDGMENT - PLEA OF NOT GUlLTY

BEFORE THE COURT- FOUND NOT GUILTY" and recites that the

Defendant was charged with offenses such violation of a city ordinance or

"comprehensive zoning ordinance--money transmission", that the case was

called to trial, that the Defendant pleaded not guilty after signing a waiver of

jury trial, and that the trial court found him not guilty. 2

                   4. The Court's Judgment of Acquittal is Void

        The Court's judgment of acquittal is void because no trial was had in

this case. The Court has no authority to render a judgment of acquittal

outside the context of a trial. Ex parte George, 913 S.W.2d 523, 526 (Tex.

Crim. App. 1995). And the record is clear-the proceedings held by the

        2
           The State earlier today filed a similar motion in cause no. 002-82434-2013 . A representative
judgment was attached to that motion. The State has not attached a copy of the judgments to this motion
because each judgment mainly differs by cause number, with subsets reflecting various ordinance
violations. In any event, the State requests the Court take judicial notice of the form of the judgments
entered on February 20, 2014 in the listed cause numbers.
                                                       3




                                                                                                              4
Court were not a trial. The Defendant did not enter a plea, no waiver of jury

trial was signed by the Defendant and consented to by the State, no jury was

empanelled and sworn, and jeopardy did not attach. Accordingly, the trial

court's judgment of acquittal is void and should be set aside. See George,

913 S.W.2d at 526-27. The Court's void judgment greatly hampers further

review of the Court's order because, on its face, a judgment of acquittal is

not an order appealable by the State. See Tex. Code Crim. Proc. art 44.01

(listing the types of orders the State may appeal).

         5. Melissa's Ordinance Is Not Unconstitutionally Vague

       An ordinance need not be mathematically precise; it need only give

fair warning, in light of common understanding and practices, of what the

prohibited conduct is. Grayned v. City of Rockford, 408 U.S. 104, 110

(1971); Gordon v. State, 757 S.W.2d 496, 497 (Tex. App.-Houston [1st

Dist.] 1988, pet. ref d).

       In the absence of a statute in which First Amendment rights are

involved, when determining whether a statute is unconstitutionally vague the

reviewing court should not consider hypothetical situations, but should

determine whether it is impermissibly vague as applied to the challenging

party's conduct. Briggs v. State, 740 S.W.2d 803, 806 (Tex. Crim. App.


                                           4




                                                                                5
··- - ...• ...   .   ..   · -·--·- - ------- -------------------- -·----- -

                          1987); State v. Fry, 867 S.W.2d 398, 401 (Tex. App.-Houston [14th Dist.]

                          1993, no pet.). "A statute is not unconstitutionally vague merely because it

                          fails to define words or terms used." Engelking v. State, 750 S.W.2d 213,

                          215 (Tex. Crim. App. 1988). "When words are not defmed, they are

                          ordinarily given their plain meaning, unless the statute clearly shows that

                          they were used in some other sense." Daniels v. State, 754 S.W.2d 214, 219

                          (Tex. Crim. App. 1988); Fry, 867 S. W.2d at 401-402.

                                In this case, the ordinance states a business must be included in the

                          listed uses for a district or it is not allowed in the applicable district. Melissa,

                          Texas, Code of Ordinances, Article 12.300 -Zoning Ordinance Adopted

                          § 20.1 ( 1992); Baird v. City of Melissa, 170 S. W.3d 921, 925 (Tex. App.-

                          Dallas 2005, pet. denied) (holding that because "RV Park" did not appear in

                          the schedule of uses it was a prohibited use under the Melissa zoning

                          ordinance). That language is neither ambiguous nor vague.

                                The Defendant claimed that an exception to the general rule of

                          prohibition of non-listed uses was as an "Accessory Use," which is defmed

                          in the statute as "a subordinate use which is incidental to the main or

                          primary use." Melissa, Texas, Code of Ordinances, at §31.2(2). But the plain

                          language of the Ordinance does not authorize accessory uses, generally, in a

                                                                      5




                                                                                                                 6
           - ---- --- --------- -------- ---··· ···-··


zoning district. Rather, the Ordinance prohibits any uses but those listed. !d.,

Article 12.300. The only portions of the Ordinance authorizing accessory

uses are for farms, orchards, and schools. !d. §31 .2(3 7), (68), (82).

      In any event, even if accessory uses are permitted generally, the

Ordinance's definition of that term also is not vague. Because the Ordinance

does not define "subordinate" or "incidental," the Court must use the plain

meaning of the words. Daniels, 754 S.W.2d at 219; Fry, 867 S.W.2d at 401-

402. Subordinate is commonly defined as "placed in or occupying a lower

class, rank or position" and "submissive to or controlled by authority."

Merriam Webster's Collegiate Dictionary 1255 (2004). Incidental is

commonly defined as "being likely to ensue as a chance or minor

consequence" or "occurring merely by chance or without intention or

calculation." Id at 629. Thus, in a gas station/convenience store setting,

adding baby formula to the product mix is subordinate to or a minor

consequence of the general business of selling gas and groceries. But

additional construction to the building in order to cash checks for fees and

the buying of gold represent separate lines of business that generally stand

alone, and thus would not be subordinate or a minor consequence of selling

gas and groceries.

                                           6




                                                                                   7
                            --------------------·--··---~




       Melissa's Zoning Ordinance gave a person of ordinary intelligence

fair warning, in light of common understanding and practices, that running a

check cashing business within a service station is in violation of the

Ordinance, whether as a prohibited use or because it is not an "accessory

use" to the service station. The Ordinance gives a clear and concise

definition of what an "accessory use" is, using words in common usage that

are easily defmed. Thus, it provides clear notice to the public and clear

guidelines to officers as to what is prohibited. And the evidence heard by the

Court was that Nayeb's check cashing business was not an accessory use

occurring merely by chance: rather, he constructed a bullet-proof booth in

the store solely for the business of cashing payroll checks. 2 RR 14-32, 43.

      In any event, whether Mr. Nayeb's check cashing business was an

improper use or an accessory use that is subordinate and incidental to his

service station is a question of fact for a fact finder. This is not different than

a fact finder determining if someone has lost the "normal use" of their

mental or physical faculties in a DWI case. That a fact fmder must determine

whether a person lacks the "normal use" of their mental and physical

faculties does not mean that the DWI law is vague. Here, just like DWI law

states someone must be intoxicated, the Ordinance clearly states that a

                                            7




                                                                                      8
                                                 .....   .   ·····- - - - - --



business must be specifically listed (or perhaps an "accessory use") to be

allowed. That a fact finder must determine whether Mr. Nayeb's check

cashing business is a proper use of his service station is not a constitutional

question of vagueness, but simply why the legal system has trials.

      That the City of Melissa has since amended its zoning ordinance to

more specifically address the business at issue does not demonstrate that the

ordinance applicable to these citations was unconstitional. The Texas Rules

of Evidence limits the consideration of subsequent remedial measures in

negligence cases. See Tex. R. Evid. 407(a). The policy reason behind this

rule is that it discourages people from making positive change. See generally

Cathy Cochran, Texas Rules of Evidence Handbook 319 (2003 ed.). And

even though Melissa has clearly prohibited the check cashing business in

question here in the revised Ordinance, the city also enacted many other

detailed changes to the zoning ordinance. See generally Defendant's Exhibit

A2 (containing the 2013 zoning ordinance). That the city council chose to

make certain provisions more detailed does not generally demonstrate their

earlier language did not give fair notice to the defendant.




                                          8




                                                                                  9
--- - - - - ---· -······· ...   ·· ·---- -- -- --- ---- ---------------------~--




                                          6. The Court Should Set Aside its Void Judgment and
                                                         Set the Case for Trial

                                      The Court's judgments of acquittal were entered without legal

                                authority because the hearing regarding the validity of the Ordinance was

                                not a trial. The State requests that the Court set aside those orders and

                                judgments. Furthermore, the State requests that the Court deny the

                                Defendant's Motion Challenging the Constitutionality of the City of

                                Melissa's Revised Zoning Ordinance No. 92-08 because the Ordinance

                                clearly proscribes non-listed uses such as check cashing businesses and the

                                accessory use provision in the Ordinance is simply inapplicable. Even if the

                                accessory use provision is applicable, it gives sufficient notice to citizens to

                                meet constitutional muster. In the alternative, the State requests that the

                                Court set aside its void judgment of acquittal and enter an order that reflects

                                the Court's oral ruling in its effective sense, i.e. that the charge is dismissed

                                because the Court found the Ordinance unconstitutional.

                                             7. The State requests a Hearing on This Motion
                                      The State requests an immediate hearing on this Motion in order to

                                best preserve its ability to defend the Ordinance by all legal means available.




                                                                           9




                                                                                                                    10
                                     Prayer

         Wherefore, the State Prays that the Court grant this Motion, set aside

the judgments of acquittal, and set the cases for trial as further detailed

above.




                                                  olate , r.
                                        Assis ant Criminal District Attorney
                                        2100 Bloomdale Rd., Ste. 200
                                        McKinney, Texas 7 5071
                                        972-548-4323
                                        214-491-4860


                             Certificate of Service

      I hereby certify a copy of the foregoing document has been served on
opposing     counsel,    Thomas      Keen,    by    electronic  mail    to
tom@keenlawfirm.com, and by facsimile to 972-499-2446 on this
day of March, 2014.




                                          10




                                                                                  11
                         3/12/2014 3:16PM Scanned Page 1




                        Cause No. 002-82535-2013,002-82536-2013, 002-
 82537-2013,002-82538-2013,002-82539-2013,002-82540-2013,002-82541-
2013,002-82545-2013,002-82546-2013,002-82551-2013,002-82553-2013,002-
 82554-2013,002-82555-2013,002-82557-2013,002-82560-2013,002-82563-
2013,002-82564-2013,002-82565-2013,002-84704-2013,002-84810-2013,002-
 84811-2013,002-84812-2013,002-84813-2013,002-84814-2013,002-84815-
2013,002-84816-2013,002-84823-2013,002-84824-2013,002-84825-2013,002-
 84826-2013,002-84827-2013,002-84828-2013,002-84829-2013,002-84830-
2013,002-84831-2013,002-84832-2013,002-84833-2013,002-84834-2013,002-
 84835-2013,002-84836-2013,002-84837-2013,002-84838-2013,002-84839-
2013,002-84840-2013,002-84841-2013,002-84842-2013,002-84843-2013,002-
 84844-2013,002-84845-2013,002-84846-2013,002-84847-2013,002-84848-
                2013, 002-84849-2013 and 002-84850-201

STATE OF TEXAS                           §         IN THE COUNTY COURT
                                         §
v.                                       §         AT LAW N0.2
                                         §
FARHAD NAYEB                             §         COLLIN COUNTY, TEXAS

                                         ORDER

        On this day came to be heard the State's Notice of Void Judgment and

Motion to Reconsider. The defendant appeared through counsel of record Thomas

Keen and the State appeared through Assistant Criminal District Attorney John

Rolater. After hearing the argument of the parties and considering the evidence and

argument previously heard in hearings in this matter, the Court enters the following

orders:

        The Judgment of Acquittal previously entered by the Court on February 20,

2014, is void and is hereby set aside.




Order                                                                             1

                                                                                       12
        The City of Melissa Zoning Ordinance No. 92-08 is unconstitutionally vague

because it does not give fair notice to citizens accused of violating the ordinance

by cashing checks and/or transmitting money allegedly contrary to the permitted

uses of a premises covered by the ordinance.



        Entered this the 12th day of March, 2014.




                                               arnett Walker, Judge Presiding




Th mas Keen, Attorney for the Defendant




Order                                                                            2

                                                                                      13
                          2/20/2015 3:14 PM Page 1



                             Cause No. 002-84828-2013

STATE OF TEXAS                          §            IN THE COUNTY COURT
                                        §
v.                                      §            AT LAW N0.2
                                        §
FARHADNAYEB                             §            COLLIN COUNTY, TEXAS

                       ORDER DISMISSING COMPLAINT

        The Court, having previously determined that City of Melissa Zoning

Ordinance No. 92-08 is unconstitutionally vague because it does not give fair

notice to citizens accused of violating the ordinance by cashing checks and/or

transmitting money allegedly contrary to the permitted uses of a premises covered

by the ordinance, hereby orders that the Complaint be, and it is hereby,

DISMISSED. See Ex parte Lo, 424 S.W.3d 10, 27 (Tex. Crim. App. 2013).

        Entered this the .11-- day of February, 2015 .




                                            ~ ..                ~ ;:;;;, ..2 -.e .L.
                                                         Walker, Judge Presiding




Order                                                                                  1

                                                                                           14
-   - - - -- - - - - - - -- - -· ... --···· ··           -·· - ··- ..... .
                                                3/9/2015 4:30 PM




                                       Cause No. 002-84828-2013

           STATE OF TEXAS                             §                      IN THE COUNTY COURT
                                                      §
                                                                                                                             .,
           v.                                         §                      ATLAWN~~                               ~        ::>


                                                                                        C~    T~i~
                                                      §
           FARHADNAYEB                                §                      COLLIN
                                                                                        -~r;_    -~0                -o
                                         NOTICE OF APPEAL                                    ·..:J     -:< ~.r.
                                                                                                        -t :;u -r
                                                                                                                    :Jt
                                                                                                                     N
                                                                                                                                   ~
                                                                                                                                   :=.t
                                                                                              ~ rn~::U
                                                                                               ,;._ ><                  ••         ~
                                                                                               .. ~,    ).•
           To the Honorable Judge of Said Court:                                                 .-     (.'l




                   The State of Texas by and through her prosecuting attorney, Greg Willis,

           Collin County Criminal District Attorney, and within 20 days of the trial court's

           order files this written notice of appeal to the Fifth District Court of Appeals of

           Texas.

                   The order appealed from is an order dismissing the complaint. See Tex.

           Code Crim. Proc. art. 44.01(a)(l).

                    Wherefore, premises considered, the State prays this notice of appeal be

           entered of record; and that further proceedings be stayed pending the disposition of

           this appeal.


                                                                               1
                                                                                   istrict Attorney

                    A copy of the foregoing has been served on om Keen, 555 Republic Dr.,

            Ste. 325, Plano, TX 75074 on this the    1~ day of rv\~                        ,2015.
                                                                  Is/ John Rolater
                                                                  Assistant Criminal District Attorney


            State's Notice of Appeal                                                                                                 1
                                                                                                                                          15
