                                  NO. 07-00-0203-CR
                                  NO. 07-00-0204-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                     JULY 24, 2001

                         ______________________________


                      DAVID MICHAEL GRISWOLD, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

  FROM THE COUNTY CRIMINAL COURT AT LAW NO. 15 OF HARRIS COUNTY;

        NOS. 9939029 AND 9939030; HONORABLE JEAN HUGHES, JUDGE

                        _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


      Presenting four issues which he says require reversal, appellant David Michael

Griswold challenges his conviction of managing the All Star News & Video, 3415 Katy

Freeway, Houston, “an adult bookstore” without a valid manager’s permit and, while acting

as an operator of an adult arcade, allowing an obstructed view of an adult arcade from the

manager’s station in violation of City of Houston Ordinance No. 97-75. His punishment,
assessed after a bench trial, was by confinement in the Harris County Jail for a period of

180 days, probated for a period of one year and, in addition, in each case a $250 fine was

assessed together with court costs. In his four issues, appellant contends 1) and 2)

because the arcade in question was not an adult arcade, the evidence is insufficient to

prove any violation of the ordinance, and because 3) and 4) the definitions of “enterprise,”

“primary business,” and “adult arcade” are unconstitutionally vague and overbroad, the

evidence is legally insufficient to support his conviction. For reasons we later recount, we

must reverse the judgment of the trial court and enter an acquittal in each case.


       Because it is necessary to a proper discussion of the issues presented, we will first

review the evidence in the case. The State’s first witness, Sergeant David Lovett, a 22-

year veteran of the Houston Police Department [HPD], testified that he was assigned to

the “vice” division of the force, which investigates prostitution, public lewdness, indecent

exposure, and liquor violations. He averred that one of his duties was to investigate

sexually oriented businesses to determine whether they were in violation of any city

ordinances. Prior to the filing of the charges of which appellant was ultimately convicted,

Lovett, on June 21, 1999, went to the All Star News and Video Emporium. At the time of

this visit, Lovett met appellant. His trip to that establishment was part of “an ongoing

investigation . . . regarding their sexually oriented business for permits and also numerous

complaints of indecent exposure and public lewdness.” At the time, appellant was the only

employee in the business and was operating the cash register and the entrance counter.

These facts led the officer to conclude that appellant was the “manager” of the business.


                                             2
      Lovett noticed that there was “an assortment of adult pornography tapes, videos,

magazines, as well as some nonpornographic material. Also some vibrators, sex lubes

and jells.” After completing his investigation and consulting other officers at the scene,

Lovett discussed some potential violations of the ordinance with appellant. According to

Lovett, “[w]e advised him of the unobstructed – unobstructed view from the manager’s

station to the adult arcade. We advised him of wall penetrations inside the adult arcade,

and we also advised him of the manager’s license.”


      Lovett averred that to be in compliance with the ordinance, appellant must be able

to view customers anywhere within the business itself, which he could not do because the

arcade portion had plywood walls and an electric entrance door which could only be

opened by pushing a button behind the counter. Presumably, appellant could not go

through the door because he could not push the button and walk through the door at the

same time. The arcade portion to which the door led was to an area in which a patron

goes into a booth and watches a movie from a selection of pornographic or

nonpornographic movies. When asked about the “wall penetrations,” Lovett explained

they are “pre-drilled holes inside the booth that are used by patrons for anonymous sex.”

Finally, Lovett testified on that occasion he watched other officers videotape the

establishment and give appellant a warning for ordinance violations, and that appellant

signed the warning indicating that he understood its contents.




                                            3
       Then, the State turned the focus of its examination of Lovett to September 6, 1999,

the date appellant was arrested on the charges giving rise to his conviction. Because of

a complaint from a concerned parent who complained that her son had visited “the All Star

News at 3415 Katy Freeway and had gone into the arcade section and apparently had

been involved in oral sex.” On that date, Lovett said, he arrived at the location, paid a

$6.00 fee, and entered the arcade section. There were no patrons in the video rental

portion of the store but, he testified, as he entered the arcade portion, he “observed

approximately 25 ‘porn’ patrons in the back, and [he] observed two of these patrons to be

masturbating.” He said he paid the $6.00 entrance fee to appellant because he was the

only employee present that night. Lovett estimated that only about 5% of All Star’s

inventory was nonpornographic and 14 of the 36 movie channels available were not

pornographic.


       With regard to whether All Star was a sexually oriented business, Lovett was cross-

examined repeatedly about what he believed would constitute a “primary” business. Lovett

averred that in making his determination of whether a store is a sexually oriented business,

he looks “at the total picture of the store, what is offered to customers. I look at the arcade

section, see what type of movies are available for viewing. I look at the primary business.

I don’t – I cannot give you just a simple answer of one item versus another.” When queried

whether he had any guidelines as far as a certain percentage of adult content that would

make a store’s business sexually oriented, he admitted he did not have any such

guidelines. Lovett also testified that All Star ran an ad in an adult bookstore trade


                                              4
publication which featured the fact that it had an “[a]ll new super huge movie arcade with

over 30 different titles.”


       Officer Shipley, the State’s second witness, testified that he had been to that All

Star location approximately 50 times over the past three or four years. When he entered

All Star’s premises on September 6, 1999, he did not see any patrons in the video rental

section. He, too, paid the $6.00 admission fee to appellant, who “buzzed” him into the

arcade section. Shipley pointed out that the door to the arcade section was electronically

controlled, and he believed appellant was the manager that night because he was the only

employee there and was in charge of the premises. He also described the arcade portion

of All Star and noted that appellant could not see into that portion of the store.


       As he walked into the arcade, Shipley noticed four or five men “just leaning up and

walking around.” As he walked through the arcade, Shipley noticed about 20 to 25

patrons. More specifically, he described those patrons as participating in a “stalking-type

ritual” which meant “[t]hey’re looking for anonymous partners for sex.” He added that some

patrons “would motion us into the rooms or they would stand in the rooms masturbating

and then motion us, you know, or make reference to have us come in and join them, that

type of activity.” He also observed two wall penetrations in the cubicles.


       Shipley videotaped the premises that day, which was received into evidence. He

said appellant did not present a permit authorizing him to act as the manager of a sexually

oriented business and that he never saw such a permit. Another officer, Officer Williams,


                                             5
also paid the $6.00 fee and was admitted to the arcade portion by appellant. He also said

that appellant’s view into the arcade was “obstructed by plywood and Sheetrock wall,” and

“upon going into the video booths, it was noted there was a ‘glory hole’ or a wall

penetration between the two booths.” He said that three of the arcade patrons were

arrested for indecent exposure and, when asked if he knew what was going on back there,

appellant replied that he “didn’t want to know . . . and he tried not to go back there.”


       Officer Robert Foulis testified that a business known as Houston All Star News,

located at the same address as All Star, had unsuccessfully applied for a sexually oriented

business permit in April of 1997 on two occasions. The first application was denied

because of a failure to meet certain “signage” [sign] requirements and free standing

building color requirements. The second application was denied because of certain

residential density requirements. Foulis said that All Star previously had a permit, but

when the ordinance was changed, it lost it. He also said that appellant had no manager’s

permit and had never applied for such a permit. He also pointed out that in order to obtain

a manager’s permit, “[a]ll you need is two passport-type photos, valid governmental issued

Id with a picture and a $29 money order and not to have been convicted of any of, like, 1

of 13 crimes within the last 5 years.”


       During his presentation of the case, appellant testified and said he was “definitely

not the manager.” In describing a typical day at work, he averred the “[f]irst thing I do

would be to check in with the previous clerk as far as making sure that the bank is in order.



                                             6
We have a set amount in the bank. I check the bank, and as long as that is in order, the

previous clerk signs off on it. I sign it also, it’s deposited and then I take over the shift.”

According to him, All Star has a hired crew to do the janitorial work and he spent most of

his time behind the counter. He said that because of the electronic door it would be

“virtually impossible” for him to go into the arcade area and he had no reason to go in. He

averred that he never ordered inventory or stocked the shelves of All Star. He said that

he was paid $6.00 per hour without benefits.


       Michael Allen Foster, an employee of All Star’s owner, Campus Investments,

testified that approximately 40 percent of the videos All Star stocks are adult and that less

than 40 percent of the written material they stock are adult material. He did not include

magazines such as Playboy, Penthouse, and Gallery as adult material because they “are

sold everywhere.” Foster observed that All Star was in the business of buying, selling, and

trading magazines and videos. He stated that there are 42 arcades or “mini-theaters” at

All Star and that there are 17 channels in the first two hallways and in the back two

hallways there are 36 channels. Each “mini-theater” has its own video player and the

movies are changed out so that more than 60 percent are non-adult. Foster opined that

out of the 36 channels, usually 20 were non-adult and 16 were adult “depending on if

there’s a VCR broke or not broke.” He also said that he is the only one with a key to

change out videos. He also admitted that if there were 25 customers in different arcades

at the same time, all 25 could watch the same movie. He believed that between 65 and

70 percent of the lobby floor area was allocated to non-adult materials. When questioned


                                              7
as to what other merchandise All Star carries, Foster testified “sexual aids, lubricants,

contraceptives, some vibrators, toys, gag gifts, fuzzy handcuffs. We sell just about

everything you could imagine. Aspirins, just a lot of stupid things.” Foster conceded that

when an item is rung up on the cash register, there is no way to tell whether it was adult

or non-adult because only the price is entered.


       Appellant also called Police Lieutenant Douglas Larry Smith, who had been with the

vice department for about 15 years. Defense counsel’s questioning of him focused on

testimony Smith had given at a trial in 1995 and his reference there to the term “50/50

store” which meant 50 percent adult merchandise and 50 percent non-adult. If the adult

material was less than 50%, the store did not need a permit. He described some of the

standards he used in determining whether a business is sexually oriented. Specifically,

whether more than 50 percent of their stock is X-rated, as well as what items generated

the store’s business and the square footage of the business. Smith also stated that, to his

knowledge, there were no written criteria within his command explicating standards by

which a police officer could follow in arriving at the 50/50 store determination.


       During cross-examination by the State, Smith explained that the ordinances

themselves served as written guidelines. In determining whether a business is sexually

oriented, “[w]e look for several things. We look at the – the particular things that they have

for sale or for rent, merchandise. The clientele, we look for clientele that’s going into the

business. We look for – we also look in the area of have they – did they have a sexually



                                              8
oriented business permit in the past. Things such as that.” Smith said the police are

“looking for a good faith effort [of] what the business is actually . . . doing.” He admitted

that the officers would make an “eyeball estimate” about what is being sold. Calculating

a store’s revenue from sexually oriented material as opposed to other merchandise would

be very hard to do, but that it might be done in the case of a store that is a “close call.”

Smith had visited All Star “a couple of times” and, in his opinion, it was clearly a sexually

oriented business and “wouldn’t be a close call.”


       Chapter 243 of the Local Government Code empowers cities to regulate sexually

oriented businesses. In relevant part, it defines a sexually oriented business as:


       . . .a sex parlor, nude studio, modeling studio, love parlor, adult bookstore,
       adult movie theater, adult video arcade, adult movie arcade, adult video
       store, adult motel, or other commercial enterprise the primary business of
       which is the offering of a service or the selling, renting, or exhibiting of
       devices or any other items intended to provide sexual stimulation or sexual
       gratification to the customer.


Tex. Local Gov’t Code Ann. § 243.002 (Vernon 1999).


       In carrying out this authority, the city enacted its ordinance number 97-75. The

ordinance defines “manager,” “sexually oriented enterprise,” and “adult bookstore” as

follows:


              Manager. Any person who supervises, directs or manages any
       employee of an enterprise or any other person who conducts any business
       in an enterprise with respect to any activity conducted on the premises of the
       enterprise, including any “on-site manager.”


                                             9
Houston City Ordinance No. 95-75 § 28-251.


              Enterprise. An adult bookstore, adult cabaret, adult encounter parlor,
      adult lounge, adult modeling studio, adult movie theatre or any
      establishment whose primary business is the offering of a service or the
      selling, renting or exhibiting of devices or any other items intended to
      provide sexual stimulation or sexual gratification to its customers, and which
      is distinguished by or characterized by an emphasis on matter depicting,
      describing or relating to specified sexual activities or specified anatomical
      areas.

              Adult Bookstore. An establishment whose primary business is the
      offering to customers of books, magazines, films, or videotapes (whether for
      viewing off-premises or on-premises by use of motion picture machines or
      other image-producing devices), periodicals, or other printed or pictorial
      materials which are intended to provide sexual stimulation or sexual
      gratification to such customers, and which are distinguished by or
      characterized by an emphasis on matter depicting, describing or relating to
      specified sexual activities, or specified anatomical areas.


Houston City Ordinance No. 97-75 § 28-121.


      Adult arcade . . . any premises that is subject to regulation under Chapter
      243 of the Local Government Code, as amended, to which members of the
      public or members of any club, group or association are admitted and
      permitted to use one or more arcade devices.

      Arcade device . . . any coin- or slug-operated or electronically or
      mechanically controlled machine or device that dispenses or effectuates the
      dispensing of entertainment, that is intended for the viewing of five (5) or
      fewer persons in exchange for any payment of any consideration.

      Entertainment shall mean:

      1) Any live exhibition, display or performance; or

      2) Any still picture(s) or movie picture(s), whether mechanically, electrically
      or electronically displayed; or



                                            10
       3) Any combination of the foregoing, in which the specified anatomical areas
       or specified sexual activities are depicted.


Houston City Ordinance No. 97-75 § 28-81.


       In his first issue, appellant challenges the sufficiency of the evidence to sustain a

holding that All Star was an adult bookstore, and that appellant served as a manager. In

his second issue, appellant argues the evidence is insufficient to prove All Star was an

adult arcade or that appellant acted as an operator of an adult arcade. Because these

issues are so closely related, we will consider them together. The standards governing

our review of legal and factual sufficiency challenges are now so well established as to be

axiomatic and it is not necessary to reiterate them here. See Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and Clewis v. State, 922 S.W.2d 126

(Tex.Crim.App. 1996). Suffice it to say that we must first determine whether the evidence

is legally sufficient and, if it is not, render a judgment of acquittal. Id. at 133. If the

evidence is legally sufficient, we must then determine if it is factually sufficient when

measured by the standard explicated in Clewis. Id.


       The evidence which we have set out in some detail is ample to sustain the trial

judge’s finding that All Star is both an adult bookstore and an adult arcade. The question

then presented is whether the evidence is sufficient to sustain a finding that appellant was

acting as a manager/operator of All Star within the purview of the ordinance. The evidence

is undisputed that at the time in question here, appellant was the only employee present



                                            11
and was operating the cash register and the electronic control admitting patrons to the

arcade.


       The very recent decision of the 14th Court of Appeals in Pedraza v. State, 34 S.W.2d

697 (Tex.App.–Houston [14th Dist.] 2000, no pet.) is instructive in interpreting the

ordinance. In that case, the court was also presented with the question of whether the

evidence was sufficient to sustain a finding that the appellant was an “operator” of an adult

arcade. The court of appeals noted the trial evidence concerning Pedraza was 1) he was

the only person working behind the counter, and 2) he was “in charge” of the arcade while

[the police officer] was there. Id. at 700.


       En route to reversing the conviction, the appellate court viewed the ordinance as

a whole and, in particular, the detailed requirements the “operator” must comply with in

order to obtain a permit. Id. at 699. After doing so, it commented that it was clear that in

the ordinance, the city intended an operator to mean more than a clerk or an employee

who simply minds the store, and concluded that the trial evidence was legally insufficient

to show that Pedraza possessed “managerial control” such that he was an operator as that

term is defined in the ordinance and was really nothing “more than a mere clerk.” Id. at

700.


       Here, the evidence was very similar to that before the Pedraza court. As was the

case in Pedraza, we can conclude that appellant was only a clerk who minded the store

and whose responsibilities were not sufficient make him a “manager” as the term is defined


                                              12
in the ordinance.1 Appellant’s first two issues must be, and are, sustained. That action

nullifies the necessity for a discussion of appellant’s remaining two issues.


       Accordingly, the judgments of the trial court are reversed, and judgment rendered

acquitting appellant of the offenses of which he was convicted. Tex. R. App. P. 43.2(c).



                                                 John T. Boyd
                                                  Chief Justice

Do not publish.




      1
        As did the Pedraza court, we note that the ordinance does place a duty on
employees and agents of the arcade to keep the view unobstructed. However, the State
did not charge appellant as an employee or agent and that question is not before us.

                                            13
