Petition for Writ of Certiorari — Zarsky v. Texas

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No. JAN 29 83

OFFICE OF THE cum |

In The

Supreme Court of the United States

October Term, 1992

CLIFFORD L. ZARSKY,

Petitioner,

VS.

THE STATE OF TEXAS,

Respondent.

Petition For A Writ of Certiorari

To The Court Of Appeals For The

Thirteenth Supreme Judicial District Of Texas

PETITION FOR WRIT OF CERTIORARI

CuirForD L. ZARSKY

4710 Everhart

Corpus Christi, Texas 78411

(512) 993-9341

Petitioner Pro-Se

Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

gpa TY wien mere

QUESTIONS PRESENTED

1. Is presence only on private business property

open to the public protected from criminal trespass by the

First and Fourteenth Amendments?

2. Does criminal trespass for all speech on private

business property open to the public violate the First and

Fourteenth Amendment protection for speech?

3. Was petitioner denied Fourteenth Amendment

equal protection for greater speech rights of the Texas

Constitution by the Appellate Courts’ misconstruction of

the facts?

4. Is criminal trespass prohibited by the First and

Fourteenth Amendments on privately owned business

property where there are no adequate alternative means

of communication with business patrons?

5. Did the abortion clinic private business property

become a limited public forum for abortion speech when

permitted for use of pro-abortion public demonstrations?

6. Is the Texas trespass statute unconstitutionally

overbroad as applied to access and speech on privately

owned business property open to the public?

7. Is the Texas trespass statute unconstitutionally

vague as applied to access and speech on privately

owned business property open to the public?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........-----+++ eee eeeee i

TABLE OF CONTENTS..........--sseeeeeeeeeecees ii

TABLE OF AUTHORITIES...........-.- +e eeeeeeee iv

OPINION AND PROCEEDINGS BELOW.........-. 1

JURISDICTION..........-: cece ce cece ecccesccceseeees 1

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED ........---ccceccccceecceeeces 1

STATEMENT OF THE CASE...........--++eeeeeee: >

REASONS FOR GRANTING THE WRIT ........--- 6

I. Amendments 1 and 14 of the United States Con-

stitution which protect the freedoms of expres-

sion, petition, and assembly, guarantee petitioner

the right of access to peaceably be on the private

owned common business parking lot areas of

office buildings in a shopping center, available

and open to the general public and thus protect

him from arrest and prosecution.........-.---- 6

A. Petitioner was not involved in any unlawful

conduct either alone, as a leader or a partici-

pant, nor was he charged as a party in any

unlawful conduct but trespass...........-- 6

B. Petitioner was protected from criminal tres-

pass by the First and Fourteenth Amend-

ments because he was peacefully in a place

of business open to the public, a location also

defined statutorily as a “public place.”..... 8

iii

TABLE OF CONTENTS - Continued

Page

C. Total speech rights cannot be prohibited by

regulation or by arrest for trespass on private

business property open to the public.......

D. Petitioner was denied Fourteenth Amend-

ment equal protection of Texas greater con-

stitutional speech rights by the Appellate

Courts’ misconstruction and screening of

| BEER re Freer ee eee eee eee ee

E. The First and Fourteenth Amendments of the

United States Constitution protect speech

rights on private business property where

there are no other adequate means of com-

munication with business patrons..........

F. The abortion clinic property became a limited

public forum when it was used with the

owner agent’s permission for a pro abortion

Te eee ihc encdceseevaccessescessssensers

II. The trespass statute, as applied, is unconstitu-

tional because it is not narrowly applied and

because it significantly impairs constitutionally

protected access and speech................45.

A. The trespass statute as applied here is

unconstitutionally overbroad ..............

B. The statute as applied is unconstitutionally

ETC AWGAS URES sWWhnN SS seuss knee ueeeeesss

TABLE OF AUTHORITIES

Page

Cases: FEDERAL AND STATE

Airport Com’rs of Los Angeles v. Jews for Jesus, 482

tf gg Perper errr a rrerr ters 12, 29

Allred v. Shawley, 284 Cal. Rptr. 140 (Cal. App.

ik: Me Es aoc sua uae od ha aneesan ress xh 22

Broadrick v. Oklahoma. 413 U.S. 600 (1973) ........... 28

Brown v. Davis, 495 A2d 90 (NJ Super Ct. 1984). .22, 26

Bullock v. City of Dallas, 281 S.E.2d 613 (Ga.1981) . .9, 14

Cameron v. Johnson, 390 U.S. 611 (1968)............-. 27

Central Hardware Co. v. National Labor Rel. Bd., 407

th Fi. >: ee eerr rr ere Ter ret ects Tere 24

City Council v. Taxpayers for Vincent, 466 U.S. 789

ti Serre rrerr reer eet Perey ree 29

City of Houston v. Hill, 482 U.S. 451 (1987)....... 29, 30

Cox v. Louisiana, 379 U.S. 536 (1965). ............-45- 14

Cox v. Louisiana, 379 U.S. 559 (1965). ...........-645- 27

Davenport v. Garcia, 384 S.W. 2d 4 (Tex. 1992)

ciusycnsndhSS56s5SOb ATER ER eR ERES 11, 18, 19, 20

De Jonge v. State of Oregon, 299 U.S. 353 (1937)... .8, 12

Erzoznick v. City of Jacksonville, 422 U.S. 205 (1975) .... 29

Gibbons v. State, 775 S.W.2d 790 (Tex. App. — Dallas

| OE rs ere orn terry Mere sr oe eee 24

Gonzales v. State, 664 S.W.2d 797 (Tex. App. -

Corpus Christi 1984)............. sees eee eee eens 10

Grayned v. City of Rockford, 408 U.S. 104 (1972)...... 30

TABLE OF AUTHORITIES - Continued

Page

Hague v. C.1.0., 307 U.S. 496 (1939) .....-..- +e eee ee. 12

Healy v. James, 408 U.S. 169, 191 (1972).......-..-+--. 8

Hoffart v. State, 686 S.W.2d 259 (Tex. App. -

Houston [14th Dist.] 1985, pet. ref’d) ............. 24

Hudgens v. NLRB, 424 U.S. 507 (1976)........-.-. 23, 24

In re Frederick A. Hoffman, 434 P.2d 353 (1967)....... 14

In re Donald Robert Lane, 457 P.2d 561 (1969)........ 15

International Society for Krishna Consciousness, Inc.

v. Lee, 112 S.Ct. 2709, 2716 (1992)............-. 17, 24

King v. Loessin, 572 S.W.2d 335 (Ct. App. -

a we OB ae, | ee ee ce 25

Kolander v. Lawson, 461 U.S. 352 (1983).............. 29

Kovacs v. Cooper, 336 U.S. 77 (1949) ..........-+-- 22, 25

LeCroy v. Hanlon, 713 S.W.2d 335 (Tex. 1986) ..... 11, 18

Lloyd Corporations Limited v. Tanner, 407 U.S. 551

FOGG ool weRv San nw'es cach eedesecwneervices Kaas 23, 24, 25

Marsh v. Alabama, 326 U.S. 501 (1946)............... 16

Munn vo. Illinois, 94 U.S. 113 (1877). .......0ccsecseees 9

Murchinson v. State, 5 S.W. 508 (1887) .............--: 9

NAACP v. Clairborne Hardware Co., 458 U.S. 886

(Serer error rr rr rrr or err trey creer 8

Planned Parenthood of San Diego and Riverside Coun-

ties v. Wilson, 282 Cal. Rptr. 760 (Cal. App. Dist.

ie. | eee ere C eee rrr rrr tr rs tre eer i 22

TABLE OF AUTHORITIES - Continued

Page

PruneYard Shopping Center v. Robins, 447 U.S. 74

POTD conch ncn ccicdvcurseceaneapenavaccaeseates 18, 20

Rains v. Mercantile Nat'l Bank, 599 S.W.2d 121 (Tex.

Civ. App. - Dallas 1980), writ re’f n.re.......-. 22, 24

Right to Life Advocates, Inc. v. Aaron Women's Clinic,

737 S.W.2d, 564, (Tex. App. - Houston [14th

Dist.] 1987), writ denied, cert. denied, 102

L.Ed.2d 47 (1988).........:c eee ee cece cere eeeeeeeee 24

Smith v. Goyuen, 415 U.S. 566 (1974) .....-.-+-++-+>- 30

State of Texas v. Barbara Ritter et al., Cause No.

325-669, 1989 (Travis County, Texas — Court At

law NO.2) ....cccccccccecssscncenccccccnescsseccss 17

Sunnyside v. Lopez, 751 P.2d 313 (Wash. App. 1988) .... 22

Thibout v. State of Texas, 782 SW 2d 307 (Tex. App.

— Eastland 1989)..........ccccscevccenccconccennns 10

Thompson v. City of Louisville, 362 U.S. 199 (1960) ...-. 8

Thornhill v. Alabama, 310 U.S. 88 (1940).....-- 17, 27, 28

Tinker v. Des Moines Independent Com. Sch. D’st.,

393 U.S. 503 (1969) ......... cece cece cece eee eens 14

U.S. v. Albertini, 472 U.S. 675 (1985). ......---- sees 26

United States v. O’Brien, 391 U.S. 367 (1968)......... 27

Widmar v. Vincent, 454 U.S. 262 (1981)..........--++:- 26

Wolin v. Port of New York Authority, 302 F.2d 83

(C.A.2 1968)..... 2. cece cere eee eeec ere eeneeeeeeers 15

Zwickler v. Koota, 389 U.S. 241 (1967).........-----:: 27

Vii

TABLE OF AUTHORITIES - Continued

Page

U.S. CONSTITUTION AND STATUTES:

Tet Amendment. ... 0... cscs rcccecesecseccncncees passim

14th Amendment, Due Process and Equal Protec-

ke errr eer errr rrr r rer rr passim

Texas CONSTITUTION:

Pe RS er errr rrr ere ee ee Pere sy 2, 11

pa OS | Sere errr rer err er rer ere ery 2, 10

pe | er rrr rr rrre ree Prt T 10, 11

Texas PENAL Cope:

1.07(a)(29) Definition of a “Public place”....... 2, 8, 29

5 SPP ne Tere rerer er rr eet sree ee eee passim

TREATISES AND MISCELLANEOUS:

16A Am. Jur. 2d., “Constitutional Law,” No. 570, p.

eet rere srry errr cere kr re Tet er eer 9

L.Tribe, American Constitutional Law, §18-5 at

BAUR -11,, BG OG. BONG eons eve se ccs evecetecnweas 16

OPINION AND PROCEEDINGS BELOW

The opinion of the Texas Court of Appeals for the

Thirteenth Supreme Judicial District is published at 827

S.W.2d 408 (App. Ct. - Corpus Christi 1992), and is

reprinted in the appendix hereto, p.1, infra.

Petitioner was convicted by a jury of criminal tres-

pass, Texas Penal Code No. 30.05, and was sentenced by

the court to 30 days in jail and court costs. Petitioner’s

motion to the trial court for arrest of judgment, motion

for acquittal, and motion for new trial were denied. Peti-

tioner’s appeal te the 13th Court of Appeals, and motions

therein for rehearing and reconsideration en banc were

denied, but motion to recall mandate was granted. Peti-

tion for Discretionary Review to the Texas Court of Crim-

inal Appe2is was refused November 4, 1992. Judge

Campbell would grant. Motion to the 13th Court of

Appeals to stay issuance of mandate after denial of Peti-

tion for Discretionary Review was granted.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. CONSTITUTION:

First Amendment: “Congress shall make no law-

. . abridging the freedom of speech, or of the

press; or the right of the people peaceably to

assemble, and to petition the Government for a

redress of grievances.”

Fourteenth Amendment: ” . . . [NJor shall any

State deprive any person of life, liberty, or prop-

erty, without due process of law; nor deny to

any person within its jurisdiction the equal pro-

tection of the laws.”

TEXAS CONSTITUTION:

Article I, Section 8: “Every person shall be at

liberty to speak, write or publish opinions on

any subject, being responsible for the abuse of

that privilege; and no law shall ever be passed

curtailing the liberty of speech or of the

”

press...

Article I, Section 27: “The citizens shall have the

right, in a peaceable manner, to assemble

together for their common good; and to apply to

those invested with the powers of government

for redress of grievances or other purposes, by

petition, address or remonstrance.”

TEXAS STATUTORY LAW:

(

Texas Penal Code, Sec. 1.07 Definitions (a)(29)

“‘Public place’ means any place to which the

public or a substantial group of the public has

access and includes, but is not limited to streets,

highways, and the common areas of schools,

hospitals, apartment houses, office buildings,

transport facilities, and shops.”

Texas Penal Code, Sec. 30.05 Criminal Trespass.

(a) A person commits an offense if he enters or

remains on property or in a building of another

without effective consent and he:

had notice that the entry was forbidden; or

received notice to depart but failed to do so

(b) For purposes of this section:

(1) “Entry” means the intrusion of the

entire body.

(2) “Notice” means:

(A) oral or written communication by the

owner or someone with apparent authority to

act for the owner;

(B) fencing or other enclosure obviously

designed to exclude intruders or to contain live-

stock; or

or at the entrance to the building, reasonably

likely to come to the attention of intruders, indi-

cating that entry is forbidden.

(3) “Shelter center: has the meaning assigned by Section

51.002(1), Human Resources Code.

misdemeanor unless it is committed in a habita-

tion or a shelter center or unless the actor car-

ries a deadly weapon on or about his person

during the commission of the offense, in which

even it is a Class A misdemeanor.

STATEMENT OF THE CASE

By Information filed in County Criminal Court at

Law No. 3 of Nueces County, Texas (Trial Court), Peti-

tioner was charged with and convicted of criminal tres-

pass by unlawfully and knowingly remaining on

property without the effective consent of William S. Hop-

kins, the owner, said property located at 5315 Everhart

Road, Corpus Christi, Texas, after notice to depart from

the property by the owner, William S. Hopkins. The perti-

nent facts are these:

FACTS OF THE CASE

Among the many types of businesses conducted at a

shopping center located at the intersection of Everhart

Street and Corona Drive, Corpus Christi, Texas, in a

section called Stonegate Professional Offices at 5315

Everhart, is Reproductive Services, in Suite 24, building

“C” on lot 4, which provides services of abortion. The

shopping center is similar to other shopping centers for

goods and services comprising an area of 13.70 acres.

(Statement of Facts Vol. II-151, 200-202; Def. Exhibit-23

[Plat]; Def. Exhibit 1-18 [shopping center pictures])

Though there are legal boundaries of individual real

estate ownership comprising the shopping center, there

are no physical identifiable boundaries prohibiting access

throughout the entire shopping center. The shopping cen-

ter is composed of retail stores, business offices, eating

place and service businesses all open to the general pub-

lic. (Statement of Facts Vol. II, 149) Reproductive Services

is located approximately 400-500 feet distant from the

public streets of Everhart and Corona, and is about in the

center of the shopping center. (Statement of Facts Vol. II,

150, 201; Def. Exhibit-23) The entrance to the abortion

clinic and the adjacent parking facilities cannot be seen

from the public streets and sidewalks because of build-

ings between, prohibiting all communications with clients

of Reproductive Services from the closest public streets

and sidewalks. (Statement of Facts Vol. II, 230; Def. Exhibit

19) Any attempt to communicate with customers coming

to the shopping center while the customer is driving onto

the property would be a traffic hazard, by backing up

traffic on heavily traveled Everhart street. (Statement of

Facts Vol. II, 210)

The arresting officer, Lt. Michael McKinney, ordered

officer Michael C. Ross to video tape petitioner while he

was on the subject property, and the video tape was

admitted as state’s evidence. (State’s Exhibit 2). No

request was made by the owner that petitioner be

arrested, though the arresting officer, Lt. McKinney, testi-

fied he arrested petitioner about fifteen minutes after Mr.

Hopkins, the owner, had requested petitioner to leave

because petitioner did not leave. Petitioner was arrested

on a common area parking lot between office buildings

adjacent to a covered walkway while standing between

two police officers, about ten to twenty feet away from

the rear door of the abortion clinic, which the state admit-

ted is a publicly used passageway (Statement of Facts Vol.

V, 66, 73). Lt. McKinney arrested petitioner only for his

presence on the property, and not for any expressive

speech activity or illegal conduct (Statement of Facts Vol.

II, 152). Even though Lt. McKinney assumed the owner's

tenants had authority to permit whoever they wanted on

the property, Lt. McKinney did not ask and did not know

if the petitioner had permission from any tenant to be on

the property (Statement of Facts Vol. II, 154), nor did he

give the petitioner any warning that he must leave the

property or be arrested (Statement of Facts Vol. Il, 144).

The petitioner testified that he was at the location for

real estate business with Brian Moore, who was also

located at 5315 Everhart, and that since Brian Moore was

not yet at his office, he went to the rear of the property

where there was an abortion clinic ” . . . to see what was

going on and also to do what I could in the way of speech

to prevent abortions . . . I decided not to do anything that

was going to be contrary to the law . . . ” (Statement of

Facts Vol. V, 92) Petitioner testified that he believed he

was not trespassing when Mr. Hopkins asked him to

leave because Mr. Hopkins did not tell him he would be

arrested if he did not leave (Statement of Facts Vol. V, 44);

because he had obtained the permission of a business

owner to be on the property (Statement of Facts Vol. III, 4);

because he believed the location was a place for protected

speech based on United States Supreme Court cases (State-

ment of Facts Vol. V, 15-33); because Police Chief Garrett

had stated publicly that arrests would only be made at

the abortion clinic for police assault or intrusion into the

abortion clinic (Statement of Facts Vol. V, 47-48); because

he understood the location was a “public place” by Texas

statute which allowed public access (Statement of Facts

Vol. V, 50-52); because the same location was used one

week before with the owner agent’s permission for a pro-

abortion demonstration (Statement of Facts Vol. V, 36-38);

and because a state prosecutor had previously defined

the location of petitioner’s arrest as a public passageway

(Statement of Facts Vol. V, 66, 73).

REASONS FOR GRANTING THE WRIT

I. Amendments 1 and 14 of the United States Constitu-

tion which protect the freedoms of expression, peti-

tion, and assembly, guarantee petitioner the right of

access to peaceably be on the private owned com-

mon business parking lot areas of office buildings

in a shopping center, available and open to the gen-

eral public and thus protect him from arrest and

prosecution.

The evidence is uncontroverted that the location of

petitioner’s arrest was on the common area of a parking

lot and common walkway between office buildings,

(Opinion p.13) in the center of a shopping center four to

five hundred feet from the nearest public street and side-

walk. The first question is whether there is a right to be

on common areas between office buildings of private

business property in a shopping center open to the public

when there is no unlawful conduct or expressive speech.

A. Petitioner was not involved in any unlawful

conduct either alone, as a leader or a partici-

pant, nor was he charged as a party in any

unlawful conduct but trespass.

The Appellate Court found that”... when viewed in

context, petitioner was a leader of the group which came

onto Stonegate to interfere with a tenant’s normal busi-

ness operations. These intruders were not merely picket-

ing, handbilling, or engaging in peaceful speech. They

were sitting on the ground blocking entry to the building

that housed the clinic.” (Opinion p.10). The Appellate

Court includes petitioner as a leader and a member of

“these intruders” engaging in unlawful activities. The

Appellate Court imputes criminal conduct to the peti-

tioner that was not brought by complaint or information

and is not to be found in the record, and more positively

not in the prosecution video and audio which show and

tell petitioner’s activities and speech. The record is

devoid of any evidence that petitiuner was a leader or a

participant with others by his conduct or speech in any

way at any time on the day of the arrest. Petitioner

remained standing between two police officers a distance

away from the people who were sitting down on the

walkway. Lt. McKinney, the arresting officer, admitted

petitioner was doing nothing unlawful, and that peti-

tioner’s presence alone was protest. (Statement of Facts

Vol. II, 152):

Zarsky: Was I doing any activities that you

would have arrested me for if I were

on a public street?

McKinney: No, sir.

Zarsky: Or did you see me carrying on any

protest of any kind, other than my

presence?

McKinney: Again, yes, sir. Your presence is

what I’m considering as being your

protest at that particular time.

The Appellate Court further found the evidence suf-

ficient to sustain the conviction: “As appellant .. . ad-

mitted that he was at the clinic to see what he could to

prevent abortions ... ” (Opinion p.14). But the court

didn’t cite the remainder of the petitioner’s admission,

which was: “ . . . I decided not to do anything that was

going to be contrary to the law or contrary to what |

understood Mr. Hopkins was asking me not to do.”

(Statement of Facts Vol. V-92). Petitioner’s conduct while

on the owner’s property at all times conformed to his

stated intents and purposes as confirmed by the arresting

officer’s testimony and evidence to the contrary is not in

the record. Petitioner was not charged as a party to other

individual’s charges nor for conduct of another, and can-

not be guilty by association.

“... [I]t is of prime importance that no constitutional

freedom, least of all the guarantees of the Bill of Rights,

be defeated by insubstantial findings of fact screening

reality. That is why this Court has the ultimate power to

search the records in the state courts where a claim of

constitutionality is effectively made.” NAACP v. Clair-

borne Hardware Co., 458 U.S. 886, 924 (1982). “Conviction

upon charge not made constitutes denial of due process.”

De Jonge v. State of Oregon, 299 U.S. 353, 362 (1937),

Thompson v. City of Louisville, 362 U.S. 199 (1960). “It has

been established that guilt by association alone without

establishing that an individual’s association poses the

threat feared by the Government is an impermissible

basis which to deny First Amendment rights.” Healy v.

James, 408 U.S. 169, 186 (1972). ” .. . [T]he critical line for

First Amendment purposes must be drawn between

advocacy, which is entitled to full protection, and action,

which is not.” Id. at 191.

All the evidence, even by prosecution witnesses, is

conclusive that appellant was not involved in any unlaw-

ful activity, protest or speech, and the video evidence

confirms the testimony. The Appellate Court’s rendition

of the facts that petitioner was a leader of intruders and

lawbreakers is without basis in the record or the state’s

video evidence, and the fact that petitioner was not

arrested for such crimes makes abundantly clear that

petitioner had no part in any criminal conduct reported

in the appellate court opinion.

B. Petitioner was protected from criminal trespass

by the First and Fourteenth Amendments

because he was peacefully in a place of busi-

ness open to the public, a location also defined

statutorily as a “public place.”

The Legislature has defined the “common areas of

office buildings”, not excluding such areas on private

property, and provided that it means “ . . . any place to

which the public or a substantial group of the public has

access...” Tex. Pen. Code 1.07(a)(29). The Legislature

has defined “common areas of office buildings” as a place

that the public has access and this Court has recognized

such locations as imposing limitations on private prop-

erty:

Property does become clothed with a public

interest when used in a manner to make it of

public consequence, and affect the community

at large. When, therefore, one devotes his prop-

erty to a use in which the public has an interest,

he, in effect grants to the public an interest in

that use, and must submit to be controlled by

the public for the common good, to the extent of

the interest he has thus created.

Munn v. Illinois, 94 U.S. 113, 126 (1877).

Rights in public places are spelled out in 16A Ameri-

can Jur.2d, Constitutional Law No. 570, page 483:

Under the constitutional guaranty of liberty

one may, under normal conditions, move at his

inclination along the public highways, or in pub-

lic places, and while conducting himself in an

orderly and decent manner, neither interfering

with nor disturbing another’s rights, he will be

protected, not only in his person, but in safe

conduct. (Emphasis added).

Statutes or ordinances regulating loitering,

vagrancy, breach of the peace, or disorderly con-

duct in public places, challenged on due process

grounds, have been sustained in some cases and

invalidated in other, depending upon the lan-

guage and scope of the provisions.

The early Texas case of Murchinson v. State, 5 S.W. 508

(1887) held that use of a “public place” under the statute

“ does not mean a place devoted solely to the uses of the

public, but it means a place, which in point of fact, is

public as distinguished from private - a place that is

visited by many persons, and accessible to the public.”

The Supreme Court of Georgia in Bullock v. City of

Dallas, 281 S.E.2d 613 (1981) held that a conviction for

loitering under a city ordinance prohibiting anyone from

remaining or loitering on any premises to which the public

has access, including private owned business property,

even where the presence is unrelated to the normal activ-

ity for which the premises are made available to the

public, is not only unreasonable but also contravenes the

First and Fourteenth Amendments of the U.S. Constitu-

tion.

The Texas Legislature has codified locations on pri-

vate property in which the public has access and a right

to remain unless there is unlawful activity. Texas appel-

late courts have held that private property defined as a

“public place” under Tex. Penal Code 1.07(a)(29) are

changed in character and authorize arrest for conduct,

even the owner’s conduct, that would not otherwise be

permitted on private property. Gonzales v. State, 664

S.W.2d 797 (Tex. App. — Corpus Christi 1984) (Arrest for

public intoxication on private business convenience

store.); Thibaut v. State of Texas, 782 S.W.2d 307 (Tex. App.

— Eastland 1989) (Parking lot of a private condominium

was a “public place” for arrest of driving while intoxi-

cated.) Texas appellate courts recognize properties

defined by statute as “public places”, do not have the

protective character of purely private property because

the public has the right to be on and remain on such

property, unless involved in unlawful activity. There is no

evidence in the record that petitioner was involved in

unlawful activity. The Texas Constitution, art. 1, sect. 27

and 29 provide:

The citizens shall have the right, in a peaceable

manner, to assemble together for their common

good; and apply to those invested with the

powers of government for redress of grievances

or other purposes, by petition, address or

remonstrance.

To guard against transgressions of the high

powers herein delegated, we declare that every-

thing in this “Bill of Rights” is excepted out of

the general powers of government, and shall

forever remain inviolate, and all laws contrary

thereto, or to the following provision shall be

void.

Just as with sec. 8, sec. 27 is distinct from its federal

counterpart in the First Amendment, affirmatively assur-

ing that ” . . . citizens shall have the right, in a peaceable

manner, to assemble together for their common

good ...” (Emphasis added).

Not only do secs. 8 and 27 confer affirmative rights on

Texans and impose prohibitions on their government;

but, together with the general structure of the Bill of

Rights and the Constitution, they impose a” . . . duty to

protect the additional state guaranteed rights of all

Texans.” LeCroy v. Hanlon, 713 S.W.2d 335, 339 (Tex. 1986);

reaffirmed in Davenport v. Garcia, 834 S.W.2d 4, 11 (Tex.

1992). The additional state guaranteed rights of the Texas

Constitution as interpreted by the Texas Supreme Court

were not provided to petitioner by the Court of Appeals

because there was insubstantial findings of facts screen-

ing reality and “ ... insults the dignity of the state charter

and denies citizens the fullest protection of their rights.”

Davenport v. Garcia, 384 S.W.2d. 4, 11 (Tex. 1992).

Petitioner was arrested and convicted of criminal

trespass for his peaceful presence only in a public place

in violation of the First and Fourteenth Amendments

regardless that the Texas Appellate Courts failed to pro-

vide him with the greater guarantees of the Texas Consti-

tution. His conviction should be reversed.

C. Total speech rights cannot be prohibited by reg-

ulation or by arrest for trespass on private busi-

ness property open to the public.

There are no Texas or federal laws that limits persons

to business purposes only on privately owned business

property open to the public but the appellate court sus-

tained the conviction for trespass on such an unfounded

concept.

As appellant sang with the protestors and

admitted that he was at the clinic to see what he

—————EEEES22....00000e

could do to prevent abortions, we find the evi-

dence sufficient for the jury to have found that

appellant’s purpose was not to engage in busi-

ness with Moore.

(Opinion p.14). Petitioner did nothing unlawful during

the time on Hopkin’s property and the only speech he

was involved in was inaudible as testified to by the

arresting officer (Statement of Facts Vol. II, 153):

Zarsky: Do you recall if it (video) showed

me in any protest activities?

McKinney: I believe it shows you singing with

the people that were singing by the

door; at least mouthing the words.

Zarsky: Could you hear me?

McKinney: Hear you? No, sir.

The strongest state’s evidence of petitioner’s speech

activity on Stonegate Center are assumptions that peti-

tioner was singing with the people by the door, with no

evidence that his singing was audible. Assuming that

inaudible singing is speech, does petitioner lose his right

to remain in a place open to the public?

The right to assemble peaceably is “cognate to those

of free speech and free press.” De Jonge v. State of Oregon,

299 U.S. 353, 364 (1937). “ . . . [C]onsistently with the

Federal Constitution, peaceable assembly for lawful dis-

cussion cannot be made a crime.” Id. 365. Like the right to

freedom of expression, the right of assembly “may be

regulated in the interest of all; it is not absolute, but

relative, and must be exercised in subordination to the

general comfort and convenience, and in consonance with

peace and good order, although it cannot, under the guise

of regulation, be denied.” Hague v. C.I.0., 307 U.S. 496,

515-516 (1939).

In Airport Com’rs of Los Angeles v. Jews for Jesus, 482

U.S. 562 (1987), a resolution banning all “First Amend-

ment activities” within the central terminal area at the

Los Angeles airport was held facially unconstitutional

under the overbreath doctrine, regardless of whether the

airport was considered a public or a nonpublic forum

(Emphasis added), because no conceivable governmental

interest could justify such an absolute prohibition of

speech, holding:

On its face, the resolution at issue in this

case reaches the universe of expressive activity,

and, by prohibiting all protected expressive

activity, purports to create a virtual “First

Amendment Free Zone.”

The resolution therefore does not merely

reach the activity of respondents at LAX, it pro-

hibits even talking and reading, or the wearing

of campaign buttons or symbolic clothing.

Under such a sweeping ban, virtually every

individual who enters LAX may be found to

violate the resolution by engaging in some

“First Amendment activity.” We think it obvious

that such a ban cannot be justified even if LAX

were a nonpublic forum because no conceivable

governmentai interest would justify such an

absolute prohibition of speech. Id., at 574.

(Emphasis added).

Petitioner was not arrested for singing, or any other

expressive speech or conduct, but for his “presence only”,

however the appellate court affirmed his conviction on

petitioner’s intended purpose to speak with others about

abortion, though in fact he did not do so. Even if peti-

tioner spoke to others about abortion, his arrest for that

reason in a place he had a right to be is the worst possible

result of a total ban on First Amendment speech.

The Court has gone further and allowed some

expressive speech as constitutional when it is done in a

place a person has a right to be:

Students have a constitutional right to expres-

sive speech by wearing symbolic black arm-

bands because “It (school) is a public place, and its

dedication to specific uses does not imply that

the constitutional rights of persons entitled to be

there are to be gauged as if the premises were

purely private property. :

Tinker v. Des Moines Independent Com. Sch. Dist., 393

U.S. 503, 511, Note 6 (1969). (Emphasis added).

It was not argued in the State appellate courts that

the common area between the offices was a public forum,

though it was argued with supporting evidence that it

was a limited public forum because a proabortion demon-

stration was permitted one week before. (Defendant's

video-audio Exhibit No. 22). However petitioner submits,

even if the location is not a limited public forum, his

presence and “pure speech” have greater constitutional

protection than expressive speech. Cox v. State of Louisi-

ana, 379 U.S. 536, 555 (1965).

The appellate court did not cite any statutory law

that requires the public to have business purposes for

being in a place open to the public, and stated on page 12

of the Opinion: “We can find no state that has granted

free speech rights to a person merely because private

property was used in a public manner.” Appellant's brief

cited several cases in addition to Bullock v. City of Dallas,

Supra, that have granted First Amendment speech rights

because private property was used in a public manner,

among which were the following:

In re Frederick A. Hoffman, 434 P.2d 353 (1967). Habeas

corpus to the California Supreme Court for conviction of

passing out leaflets opposing Vietnam policies under an

ordinance for being in a privately owned public transporta-

tion railroad terminal longer than reasonably necessary to

conduct business, holding:

... the test is not whether petitioners’ use of the

station was a railway use but whether it inter-

fered with that use . . . In this respect, a railway

station is like a public street or park . . . The

railroads seek, neither privacy within nor exclu-

sive possession of their station. They therefore

cannot invoke the law of trespass against petitioners

to protect those interests. Id., at 356. (Emphasis

added).

Wolin v. Port of New York Authority 302 F.2d 83 (Ct.

Appls. - 2nd Dist. 1968). Declaratory judgment seeking

the right to distribute leaflets, carry placards and con-

ducting discussions with others publicizing antiwar

views to the public in a bus terminal is an appropriate

place for such activities, and are entitled to protection

under First and Fourteenth Amendments.

... where the issue involves the exercise of First

Amendment rights in a place clearly available to

the general public . . . the factors to be consid-

ered are essentially the same, be the forum

selected for expression in a street, park, shop-

ping center, bus terminal, or office plaza. Id., at

89. (Emphasis added).

The Port Authority argues that the Terminal is

an inappropriate site for such activity because

the interior of a building is not traditionally a

place for exercise of First Amendment Rights

.. . We disagree with these views because they

evidence too little regard for the vagaries of

effective communication, and for the versatility

of the First Amendment's proscription. Id., at 89.

Others may quarrel with Wolin’s choice of

forum and vigorously dispute his message, but

we believe the Port Authority may not abridge

his right to choose this place any more than they

can control his choice of message. Id., at 91.

Similarly, the availability of some alternative

forum, and the likelihood of a swarm of protes-

ters each with their special cry disrupting the

normal operation of the Terminal, are not mate-

rial where the issue involves a blanket and

wholesale ban. Id., at 91.

In re Donald Robert Lane, 457 P.2d 561 (1969). Habeas

corpus brought by a defendant to the California Supreme

Court for a conviction of trespass for being on privately

owned sidewalk area opened by a supermarket for use by

its customers. Held that defendant had the right under

free speech guarantees to distribute handbills on pri-

vately owned sidewalks of a supermarket because such

“sidewalk” was a “public area” in which members of the

public might exercise First Amendment rights.

Certainly, this sidewalk is not private in the

sense of not being open to the public. The public

is openly invited to use it in gaining access to

the store and in leaving the premises. Thus, in

our view it is a public area in which members of

the public may exercise First Amendment rights.

Certainly the paramount and preferred place

given to the First Amendment freedom of

speech right in our democratic system should be

accorded precedence over the mere “naked

title” of market owner Stewart's interest in the

premises.

. when a business establishment invites the

public generally to patronize its store and in

doing so to traverse a sidewalk opened for

access by the public the fact of private owner-

ship of the sidewalk does not operate to strip

the members of the public of their rights to

exercise First Amendment privileges on the

sidewalk at or near the place of entry to the

establishment.

Id., at 565.

It is generally recognized that the Supreme Court's

focus, in the line of cases beginning with Marsh v. Ala-

bama, 326 U.S. 501 (1946) on the nature of property

involved is an alternate way of establishing state action.

See L.Tribe, American Constitutional Law §18-5 at 1708-11

(2nd ed. 1988). In this case the Appellate Court holds that

the shopping center, or the location of the abortion clinic

is not the functional equivalent of a “town square”, but it

must be admitted that it is not private like a private

residence, as is emphasized in the above cited cases.

Thus, while the shopping center may not be as large as

some mega shopping centers, it is certainly a much larger

area than shopping areas and “town squares” of many if

ea eee ee Aen

not most Texas towns, and should be subject to at least a

diminished right of speech free from criminal trespass.’

“At the heart of our jurisprudence lies the principle that

in a free nation citizens must have the right to gather and

speak with other persons in public places.” International

Society for Krishna Consciousness, Inc., v. Lee, 112 S.Ct.

2709, 2716 (1992), Justice Kennedy concurring. “The free-

dom of speech and of the press guaranteed by the Consti-

tution embraces at the least the liberty to discuss publicly

and truthfully all matters of public concern without pre-

vious restraint or fear of subsequent punishment.” Thorn-

hill v. State of Alabama, 310 U.S. 88, 101 (1940). Arrest for

1 A trial court judge in Austin, Texas dismissed four crimi-

nal trespass charges where defendants protested against grape

growers and solicited signatures on a parking lot of a separate

single private property grocery store abutting a street and side-

walk. Judge Steve Russell held: “Every activity that these defen-

dants engaged in was constitutionally protected activity, classic

speech. There was nothing, nothing that does not obviously fall

under the rubric of speech. Therefore, in the analysis set out by

Judge Hart, although there is a continuum with the private

dwelling at one end, and perhaps a mega-mall at the other end,

this one is not close. I find these defendants not guilty; all of

them.”

The police in Austin, Texas, where Judge Russell dismissed

these charges, no longer make trespass arrests for such expres-

sive speech activities in public areas like the grocery store.

Reported in the Austin American Statesman, Saturday, Decem-

ber 9, 1989, Appendix A-1, and State of Texas v. Barbara Ritter et

al., Cause No. 325-669, 1989 Travis County, Texas - Court at Law

No. 2, presented to the Appellate Court in Appellant’s Motion

for Reconsideration En Banc, Appendix A-1 through A-5. This

case was not appealed and shows that Texas defense lawyers,

prosecutors, and one trial judge understand such expressive

speech activity is constitutionally protected on private business

property. “The state is entitled to appeal a order of a court ina

criminal case if the order: (1) dismisses an indictment, informa-

tion or complaint. ... ” Art. 44.01, Texas Code of Criminal

Procedure.

non-expressive speech in a place open to the public vio-

lates a basic principle at the heart of our jurisprudence

and transformed the private dispute of the business prop-

erty owner with petitioner into a public one in which

criminal arrest denied petitioner First and Fourteenth

Amendment protection.

D. Petitioner was denied Fourteenth Amendment

equal protection of Texas greater constitutional

speech rights by the Appellate Courts’ mis-

construction and screening of facts.

The Texas Supreme Court held in Davenport v. Garcia,

384 S.W.2d 4, 11 (Tex. 1992)

Today we reaffirm our prior pronouncement

that “[o]ur constitution has independent vitality,

and this court has the power and duty to protect

the additional state guaranteed rights of all

Texans.” LeCroy v. Hanlon, 713 S.W.2d 335, 339

(Tex. 1986). We decline to limit the liberties of

Texans to those found in the Federal Constitu-

tion when this court is responsible for the pre-

servation of Texas’ own fundamental charter.

When a state court interprets the constitution of

its state merely as a restatement of the Federal

Constitution, it both insults the dignity of the

state charter and denies citizens the fullest pro-

tection of their rights.

This Court held in PruneYard Shopping Center v.

Robins, 447 U.S. 74, 81 (1980) that state constitutions may

allow reasonable restrictions on private property, so long

as the restrictions do not amount to a taking without just

compensation or contravene any other federal constitu-

tional provisions.

A most important consequence state affirmative

grants of speech, assembly and petition is that the ques-

tion of state action is eliminated and the only question

that remains is the balancing of the rights to exercise free

speech, assembly and petition, on the one hand, and on

the other, the property rights of the owner.

Though the Appellate Court addressed petitioner's

claim of Texas’ broader speech freedoms, (Note 4, Page

7), the Texas Supreme Court case of Davenport v. Garcia,

Supra, upholding petitioner’s claim had not been decided.

The Appellate Court did not address the cases submitted

by petitioner permitting access and speech on private

business property, but did point out factors to be consid-

ered for greater state expressive speech rights: (1) size of

the shopping center, (2) amount of disruption to the

business entities caused by the speech activity, (3) degree

of public invitation extended by the center, (4) the degree

that the property has been dedicated to public use, (5)

safety matters and, (6) the owner’s property rights.

(Opinion, Page 9).

If the factors applied for expressive speech is applied

in the present case for broader state constitutional protec-

tion, all factors are sufficient. (1) Size: Though the arrest

was on property separately owned apart from other prop-

erty owners of the shopping center, it was not possible to

distinguish such ownership (1.70 acres, Defense Exhibit

23) by any physical boundaries, and all patrons of the

shopping center have an open invitation to the 13.70 acres

of the general businesses shopping center. (Defense

Exhibits 1-18, 23); (2) Disruption caused: Petitioner was

arrested for “presence only”, and there is no evidence

alleged or proven of any disruption by petitioner, and is

clear from the State’s video of petitioner during the time

on the premises; (3) Public invitation: No restrictions to

the general public, testified to by the arresting officer,

(Statement of Facts Vol. II, 149) and obvious from the

pictures and video evidence; (4) Degree of dedication to

public use: The common areas of office buildings has

been dedicated by State legislation as a “public place”, it

was previously identified by a state prosecutor as a “pub-

lic walkway” (Defense Exhibit 26 Statement of Facts Vol. V,

66, 73), and is open to the public; (5) Safety matters: It

would be hazardous because of traffic congestion to

attempt communication with patrons driving into the

shopping center; (6) Owner’s property rights were not

diminished by petitioner’s quiet, peaceful presence

regardless of property violations by others who were

arrested by the police to protect the owner’s property

rights.

Though these factors appear clearly sufficient to

apply broader state constitutional rights of speech under

the Constitutions of California or Texas under the Texas

Supreme Court interpretation, the broader protection is

not provided to petitioner by the Appellate Court or the

Court of Criminal Appeals, and leaves petitioner without

the broader protection in a criminal charge than would be

afforded in civil litigation in California in PruneYard Shop-

ping Center v. Robins, Supra, the other cited cases, and the

greater protection of Texas constitutional rights enunci-

ated by the Texas Supreme Court. Davenport v. Garcia,

Supra.

Though the Appellate Court addressed the greater

protection rights of the Texas Constitution, it screened the

reality of the facts to deny Texas constitutional greater

protection as pointed out above, by finding the petitioner

a leader of lawbreakers and intruders on the property,

and misconstrued assessment of the other facts, which

would provide petitioner entitlement. The requirements

for greater Texas constitutional protection applied by the

Appellate Court were based on requirements for expres-

sive speech rights in all the cases cited by the Appellate

Court, however there was not one case cited for prece-

dent by the Appellate Court that compared with the no

speech or “pure speech”, and arrest for “presence only”

in the present case. Another vital factor that was not

addressed by the Appellate Court was petitioner’s inabil-

ity to communicate with the property owner's clients in

any other location, which will now be addressed.

E. The First and Fourteenth Amendments of the

United States Constitution protect speech rights

on private business property where there are no

other adequate means of communication with

business patrons.

Reproductive Services is located approximately

400-500 feet distant from the public streets of Everhart

and Corona, and is about in the center of the shopping

center. (Statement of Facts Vol. II, 150, 201; Defendant

Exhibits-19, 23). The entrance to the abortion clinic and

the adjacent parking facilities cannot be seen from the

public streets and sidewalks, prohibiting all communica-

tions between clients of Reproductive Services and any-

one wishing to communicate with such clients from the

closest public streets and sidewalks. (Statement of Facts

Vol. II, 230; Defendant's Exhibit 19). Any attempt to com-

municate with customers coming to the shopping center

while the customer is driving onto the property would be

a traffic hazard by backing up traffic on Everhart street.

(Statement of Facts, Vol. II, 210).

Though petitioner was not engaged in any unlawful

activity or expressive speech, the Appellate Court

affirmed his conviction based on his intentions of com-

municating with patrons of the abortion clinic. If peti-

tioner was not protected from trespass because he was in

a public place which affords protection for access and

speech, then he was in a place which was the only place

he could communicate with the customers of the abortion

clinic because there was no other public forum location

for such communication.

The Appellate Court cites cases from states that did

not extend speech protections to protesters on abortion

clinics business property, but an analysis of the cases

shows the abortion clinics were not secluded far away in

shopping centers, but were rather individually located

businesses adjacent to public sidewalk forums providing

adequate means of effective communication. The com-

mon rule in each of the below cited abortion clinic speech

cases follows the Supreme Court precedent enunciated in

Kovacs v. Cooper, 336 U.S. 77, 88 (1949) holding:

The right of free speech is guaranteed every

citizen that he may reach the minds of willing

listeners and to do so there must be opportunity

to win their attention.

In Planned Parenthood of San Diego and Riverside Coun-

ties v. Wilson, 282 Cal. Rptr. 760, (Cal. App. Dist 4, 1991),

the court finds the public sidewalk is located immediately

in front of the Medical Center, and holds:

Mindful that the right of free speech involves a

guarantee of providing a forum so one may

obtain and perhaps reach the minds of willing

listeners, the protesters’ exclusion from the

parking lot has not deprived them of ample

opportunity within the traditional public forum

of the public sidewalk to do so. Id., at 768.

In Brown v. Davis, 495 A2d 900 (NJ Super Ct. 1984) the

abortion clinic was 45 feet from the public sidewalk and

the court held:

In the present case there is no pressing public

policy reason for permitting plaintiffs to enter

the premises, since alternative means of commu-

nication are available. Id., at 904.

In Allred v. Shawley, 284 Cal Rptr. 140 (Cal. App. Dist

4, 1991) the court found there was sufficient opportunity

to reach the targeted audience, that the public sidewalk

along the front of the building was but 32 feet from the

lobby of the building, and that the lobby was entirely

unshaded glass, from which patients could easily see

placards and billboards, and held:

Appellants are not denied access to their quarry.

“[T]he protesters’ exclusion from the parking lot

has not deprived them of an ample opportunity

within the traditional public forum of the public

sidewalk to reach [willing listeners].” Id., at 148.

See also Sunnyside v. Lopez, 751 P.2d 313 (Wash. App.

1988) and Rains v. Mercantile Nat'l Bank, 599 SW2d 121,

124 (Tex. Civ. App. Dallas, 1980, writ re’f n.r.e.) (Right of

access to private property “where there are not reason-

able means of exercising first amendment rights”.)

The Appellate Court misconstrues the law of Lloyd v.

Tanner, 407 U.S. 551 (1972), sustained in Hudgens v.

National Labor Relations Bd., 424 U.S. 507 (1976) (Opinion

p.5) that by these cases petitioner has no First Amend-

ment right of remaining on private business property

because the facts are dissimilar and inapposite. Lloyd

dealt with protest and expressive speech, but petitioner’s

facts did not. Lloyd dealt with speech where there was no

business related purpose, but petitioner’s did. Lloyd's fact

situation provided adequate alternative avenues of com-

munication, but petitioner’s situation did not. Expressive

speech and protest were factual and the Court addressed

the business relation and alternative means of communi-

cation to distinguish a previous case:

A further fact, distinguishing the present

case from Logan Valley is that the Union pickets

in that case would have been deprived of all

reasonable opportunity to convey their message

to patrons of the Weis store had they been

denied access to the shopping center. The situa-

tion at Lloyd Center was notably different. The

central building complex was surrounded by

public sidewalks, totaling 66 linear blocks. All

persons who enter or leave the private areas

within the complex must cross public streets

and sidewalks, either on foot or in automobiles.

When moving to and from the privately owned

parking lots, automobiles are required by law to

come to a complete stop. Handbills may be dis-

tributed conveniently to pedestrians, and also to

occupants of automobiles, from these public

sidewalks and streets. Indeed, respondents

moved to these public areas and continued dis-

tribution of their handbills after being requested

to leave the interior malls. It would be an

unwarranted infringement of property rights to

require them to yield to the exercise of First

Amendments rights under circumstances where

adequate alternative avenues of communication

exist. (Emphasis added.)

Lloyd Corp. Ltd. v. Tanner, 407 U.S. 551, 556 (1972). See also

Lee v. International Society for Krishna Consciousness, Inc.

112 S.Ct. 2709 (1992). (Distribution of literature in an

airport terminal could not be prohibited even though

there were adequate means of communication imme-

diately outside the terminal on the airport sidewalks,

where ninety-seven percent of the passengers could be

given literature.)

The Appellate Court misconstrues Supreme Court

and other state court decisions ” . . . all have declined to

extend such protections to property like that in the pre-

sent case.” (Opinion p.9). The facts in this case are clearly

different from others cited by the Appellate Court,

including Hudgens v. NLRB, Lloyd v. Tanner, Central Hard-

ware Co. v. National Labor Rel. Bd., 407 U.S. 539 (1992),

Gibbons v. State, 775 SW2d 790 (Tex. App. — Dallas 1989),

Hoffart v. State, 686 SW2d 259 (Tex. App. - Houston [14th

Dist.], Writ r’fd 107 S.Ct. 95, 478); Rains v. Mercantile Nat’l

Bank, 600 SW2d 121 (Tex. Civ. App. - Dallas 1980), Right

to Life Advocates, Inc. v. Aaron Women's Clinic, 737 SW2d

564, 568 (Tex. App. — Houston [14th Dist.] 1987, Writ

denied 109 S.Ct. 71), because in those cases there were

adequate public forums to communicate with the patrons

of the businesses, or the speech purposes did not pertain

to any business in the location.

Here the abortion clinic is secluded away 500 feet

from any public sidewalks or public forum locations and

prevented petitioner from all communication with abor-

tion clinic clients. Any attempt to communicate with the

clients while they are driving to the abortion clinic from

Everhart street would be a traffic hazard and a potential

cause of injury to the clients and others. Petitioner caused

no disruption to any business by his quiet and peaceful

presence on the parking lot and the public walkway, and

exhibited no expressive speech or conduct. Petitioner

wanted to communicate with persons going into the abor-

tion clinic but there was no alternative place for him to be

able to communicate with the persons he wanted to,

except to be where he was. Petitioner met the require-

ments of Lloyd v. Tanner, Supra, Kovacs v. Cooper, Supra,

and other cited state cases dealing with expressive speech

issues on private business property, though he was not

participating in expressive speech or conduct, because he

was attempting to communicate with business related

clients on the property. where he was arrested, and there

were no other means available for such communication,

and was therefore constitutionally protected by the First

and Fourteenth Amendments.

FE The abortion clinic property became a limited

public forum when it was used with the owner

agent’s permission for a pro-abortion rally.

The Appellate Court holds on page 11, that the pro-

abortion rally held on the abortion clinic property a week

before petitioner’s arrest was without the owner’s per-

mission, but the record is clear that owner Hopkins

admitted he had given the abortion clinic operator,

Rachael Vargas, express written authority to control the

entire property. (Statement of Facts Vol. II, 39-40; Vol. IV,

48), and Rachael Vargas promoted, coordinated and par-

ticipated in a loud pro-abortion demonstration on the

abortion clinic premises a week before. (Defendant

Exhibit-22, video; Statement of Facts Vol. IV, 51-58). Texas

law holds under the agency principle of “respondeat

superior” a principal is liable for the agent’s actions

regardless of whether the agent had authority to do the

specific act complained of. King v. Loessin, 572 SW2d 87,

90 (App. — Houston Ist Dist. 1978). It is very convenient

for an owner to authorize a tenant agent authority to do

what he approved of, but then deny such authority to

avoid any responsibility for what he disapproved of.

The court holds on page 11” . . . that this one rally,

without the owner’s permission, did not transform the

office complex into a ‘town square’ for free-speech pur-

poses”, but other courts do not have such a high require-

ment of a “town square” comparison before equal

protection is afforded. Restraint of constitutional rights of

speech in non-public forums is permitted so long as it is

applied without discrimination and is not used to pur-

posefully suppress speech. U.S. v. Albertini, 472 U.S. 675,

688-89 (1985). Non-public forums have been opened up to

all persons for activities protected by the First Amend-

ment if made available to other persons for such pur-

poses. Widmar v. Vincent, 454 U.S. 262 (1981); United States

v. Albertini, 472 U.S. 674 (1985).

In Brown v. Davis, 495 A2d 900 (NJ Super Ct. 1984) the

court held expressional activity to some persons by pri-

vate property owners must be afforded without discrimi-

nation to others on the same issues:

The protection of the rights of a private property

owner is concomitant to the owner’s obligation

to honor the rights of others to speak and

assemble on his property. In weighing the rea-

sonableness of the owner’s restrictions to access

to private property, effect must be given to

whether “there exist convenient and feasible

alternative means to individuals to engage in

substantially the same expressional activity.”

Id., at 903.

Owner Hopkins cannot avoid responsibility for the

pro-abortion rally on his property, and discriminate

against petitioner by having him arrested for his inten-

tions to speak on the issue of abortion, when through his

authorized agent he opened his property to many others

to speak and promote the same issue. The State’s video

evidence shows clearly many persons on the premises

who were not arrested, but petitioner was singled out,

not for impeding access to the center’s tenants, nor

harassing or verbally abusing potential clients, but to

suppress his speech even though a week before the

owner’s premises were opened to loud yelling and dem-

onstrations promoting the abortion business on the same

location. Petitioner’s interest in free speech to offer alter-

natives to abortion and aid to mothers should be given

the same legal protection as those who loudly promote

abortion on the same business location.

II. The trespass statute, as applied, is unconstitutional

because it is not narrowly applied and because it

significantly impairs constitutionally protected

speech.

A. The trespass statute as applied here is uncon-

stitutionally overbroad.

Petitioner also urges that the trespass statute as

applied is void for “overbreath”, that is, “it offends the

constitutional principle that a governmental purpose to

control or prevent activities constitutionally subject to

state regulation may not be achieved by means which

sweep unnecessarily broadly and thereby invade the area

of protected freedoms.” Zwickler v. Koota, 389 U.S. 241,

249 (1967).

A statute is overbroad if it “does not aim specifically

at evils within the allowable area of state control

but . . . sweeps within its ambit other activities that

. . . constitute an exercise of speech or press rights.”

Thornhill v. Alabama, 310 U.S. 88, 97 (1940).

This Court has approved only two ways in which the

state may achieve this balance.

The first approach is through use of reasonable time,

place, and manner regulations, narrowly drawn to serve

significant governmental interests. Cox v. Louisiana, 379

U.S. 559, 563 (1965).

The second approved method is by carving out of the

scope of the statute the conduct which enjoys First

Amendment protection. Cameron v. Johnson, 390 U.S. 611

(1968). Neither method was taken in this case. Thornhill’s

admonition especially applies:

But the group in power at any moment may

not impose penal sanctions on peaceful and

truthful discussion of matters of public interest

merely on a showing thai others may thereby be

persuaded to action inconsistent with its inter-

ests. Abridgment of the liberty of such discus-

sion can be justified only where the clear danger

of substantive evils arises under circumstances

affording no opportunity to test the merits of

ideas by competition for acceptance in the mar-

ket of public opinion.

Thornhill v. State of Alabama, Supra at 104, 105.

Since a pro-abortion demonstration was permitted in

the same location only a week before, it is clear that the

owner willingly discriminated against the content of peti-

tioner’s intentions to provide alternative information and

aid to individuals seeking solutions to unwanted preg-

nancies.

In United States v. O’Brien, 391 U.S. 367, 377 (1968),

the Supreme Court articulated the balancing test for

reviewing government regulations of conduct which inci-

dentally restricts protected speech:

[A] government regulation is sufficiently justi-

fied if it is within the constitutional power of the

government; if it furthers an important or sub-

stantial governmental interests; if the govern-

mental interest is unrelated to the suppression

of free expression; and if the incidental restric-

tion on alleged First Amendment freedoms is no

greater than is essential to the furtherance of the

interest.

The statute at issue here fails O’Brien’s fourth crite-

rion because the resulting restrictions on protected

speech are much greater than are essential to the govern-

ment’s interest.

As applied, the trespass statute displays no tailoring

whatever to the interest of the state.

To be invalid, the overbreath of the statute must be

substantial, judged in relation to its plainly legitimate

sweep. Broadrick v. Oklahoma, 413 U.S. 600, at 615 (1973).

But where the statute unquestionably attaches sanctions

to protected conduct, the likelihood that it will deter

protected speech or conduct is ordinarily sufficiently

great to justify an overbreath attack. City Council v. Tax-

payers for Vincent, 466 U.S. 789, 799 n.19 (1984), citing

Erzoznick v. City of Jacksonville, 422 U.S. 205, 217 (1975);

Airport Com’rs of Los Angeles v. Jews for Jesus, 482 U.S. 569

(1987). It is clear that the statute here can punish pro-

tected conduct, i.e., criminal trespass for remaining on a

parking lot common areas of office buildings of a shop-

ping center open to the public and, defined as “public

place” by Tex. Pen. Code 1.07(a)(29), and restraint of all

forms of speech thereon.

A state statute should be deemed invalid if it is not

readily subject to a narrowing construction by the state

courts and its deterrent effect on legitimate expression is

real and substantial. Erzoznick, 422 U.S. at 216.

The Court used a Texas case to again emphasize its

protection of the First Amendment from vague and over-

broad criminal statutes, invalidating a Houston disor-

derly conduct ordinance which “criminalized a

substantial amount of constitutionally protected speech,

and accorded the police unconstitutional discretion in

enforcement.” City of Houston v. Hill, 482 U.S. 451, 466

(1987).

The statute as applied here is substantially over-

broad, and a conviction thereunder should be reversed as

an unconstitutional abridgment of petitioner’s rights.

B. The statute as applied is unconstitutionally

vague.

Petitioner also urges that the trespass statute is

unconstitutionally vague. The void-for-vagueness doc-

trine requires that a penal statute define the criminal

offense with sufficient definiteness that ordinary people

can understand what conduct is prohibited and in a man-

ner that does not encourage arbitrary and discriminatory

enforcement. Kolander v. Lawson, 461 U.S. 352, 357 (1983).

“Where a statute’s literal scope . . . is capable of reaching

expression sheltered by the First Amendment, the doc-

trine requires a greater degree of specificity than in other

contexts.” Smith v. Goyuen, 415 U.S. 566, 573 (1974). “A

vague law impermissibly delegates basic policy matters

to policemen, judges and juries for resolution on an ad

hoc and subjective basis, with the attendant dangers of

arbitrary and discriminatory application” (footnotes

omitted.) Grayned v. City of Rockford, 408 U.S. 104, 108-09

(1972).

As already discussed in the overbreath section, this

Court invalidated a Houston disorderly conduct ordi-

nance in part on vagueness grounds because it accorded

“the police unconstitutional discretion in enforcement.”

City of Houston, Supra. The Texas trespass statute

accorded the police, the courts and juries unconstitutional

discretion for arrest and conviction of petitioner.

CONCLUSION

For the reasons and authorities set forth, the Petition

for a Writ of certiorari should be granted.

Respectfully submitted,

CuiFForD L. Zarsky

4710 Everhart

Corpus Christi, Texas 78411

(512) 993-9341

Petitoner Pro-Se, Attorney of

Record

App. 1

CHIEF JUSTICE CLERK

PAUL W. NYE CATHY WILBORN

JUSTICES DEPUTY CLERK

NOAH KENNEDY MARY JANE DUARTE

ROBERT J. SEERDEN TELEPHONE:

GILBERTO HINOIOSA a

FEDERICO G. HINOJOSA JR. FAX: 512-888-0794

COURT OF APPEALS

THIRTEENTH SUPREME JUDICIAL DISTRICT

TENTH FLOOR

NUECES COUNTY COURTHOUSE

CORPUS CHRISTI, TEXAS 78401

February 20, 1992

TO ALL ATTORNEYS OF RECORD:

Re: Cause No. 13-91-111-CR

Tr. Ct. No. 90-3938-3

Clifford L. Zarsky

The State of Texas

Dear Counsel:

The judgment of the trial court in the above-refer-

enced cause was this day AFFIRMED by this Court.

Copies of the opinion and judgment are enclosed.

Very truly yours,

/s/ Cathy Wilborn

Cathy Wilborn, Clerk

CW:rgl

enc.

App. 2

cc: Hon. Carlos Valdez

Hon. Clifford L. Zarsky

Hon. Gene A. Garcia

Hon. Hilda Tagle, Presiding Judge

Hon. Ernest Briones, County Clerk

Hon. Richard M. Berry

COURT OF APPEALS

Thirteenth Judicial District

Corpus Christi, Texas

Below is the JUDGMENT in the numbered cause set

out herein to be Filed and Entered in the Minutes of the

Court of Appeals, Thirteenth Judicial District of Texas, at

Corpus Christi, as of the 20th day of February, 1992. If this

Judgment does not conform to the opinion handed down

by the Court in this cause, any party may file a motion for

Correction of Judgment with the Clerk of this Court.

CAUSE NO. 13-91-111-CR (Tr. Ct. No. 90-3938-3)

CLIFFORD LOUIS ZARSKY, Appellant,

THE STATE OF TEXAS, Appellee,

on appeal to this Court from Nueces County, Texas.

* * .

JUDGMENT

On appeal from the County Court at Law No. 3 of Nueces

County, Texas, from a judgment signed January 9, 1991.

App. 3

Opinion by Assigned Justice Gerald T. Bissett. Opinion

ordered published. Tex. R. App. P. 90.

THIS CAUSE was submitted to the Court on September

12, 1991, on oral argument, the record, and briefs. These

having been examined and fully considered, it is the

opinion of the Court that there was no error in the

judgment of the court below, and said judgment is hereby

AFFIRMED against appellant, CLIFFORD LOUIS

ZARSKY.

Costs of the appeal are adjudged against appellant,

CLIFFORD LOUIS ZARSKY,. It is further ordered that this

decision be certified below for observance.

* * *

CATHY WILBORN, CLERK

NUMBER 13-91-111-CR

COURT OF APPEALS

THIRTEENTH JUDICIAL DISTRICT OF TEXAS

CORPUS CHRISTI

- *. *

CLIFFORD LOUIS ZARSKY, Appellant,

THE STATE OF TEXAS, Appellee.

* * oa

App. 4

On appeal from the County Court at Law No. 3

of Nueces County, Texas.

* x *

Before Gerald T. Bissett;! J. Bonner Dorsey;

and Gilberto Hinojosa, J.J.

* » *

OPINION

A jury found appellant guilty of criminal trespass,

and the trial court assessed his punishment at thirty days

in jail. Appellant asserts that his conviction violates the

free-speech and assembly provisions of the United States

and Texas Constitutions, that the evidence is insufficient

to sustain the conviction, and that the trial court erred in

excluding evidence and in failing to submit his requested

instructions to the jury. We affirm.

Appellant was arrested at the Stonegate Professional

Office Complex in Corpus Christi (Stonegate), while anti-

abortion protestors sat on a walkway outside an abortion

clinic, blocking its doors. Appellant, who was described

as part of the protest leadership, was arrested as he stood

in the parking lot, about eight feet from one of the clinic’s

doors, next to a pole which supported the roof covering

the walkway. Appellant was not personally blocking the

clinic’s door. Less than a half-hour before his arrest,

William Hopkins, the owner of the complex, notified

appellant at a face-to-face meeting to leave the premises.

1 Assigned to this Court by the Chief Justice of the Supreme

Court of Texas pursuant to Tex. Gov’t Code Ann. § 74.003 (Ver-

non 1988).

App. 5

Appellant was charged with violating Texas’ trespass law

by remaining on Hopkins’ property without Hopkins’

consent after he had notice to depart but failed to do so.

See Tex. Penal Code Ann. § 30.05(a)(2) (Vernon 1989).

In his first point of error, appellant contends that his

activities at the clinic were protected under the First

Amendment of the United States Constitution and under

Article I, §§ 8, 27, and 29 of the Texas Constitution.?

We find the federal constitutional issue resolved by

Hudgens v. National Labor Relations Bd., 424 U.S. 507

(1976). In Hudgens, warehouse employees of a company

with a retail store in a shopping center were found to

have no First Amendment right to enter the shopping

center to advertise their strike against the company.

Hudgens followed Lloyd Corp. v. Tanner, 407 U.S. 551

2 Article 1, § 8 of the Texas Constitution provides:

Every person shall be at liberty to speak, write or

publish his opinions on any subject, being responsible

for the abuse of that privilege; and no law shall ever

be passed curtailing the liberty of speech or of the

press. ...

Article 1, § 27 provides:

The citizens shall have the right, in a peaceable man-

ner, to assemble together for their common good; and

apply to those invested with the powers of govern-

ment for redress of grievances or other purposes, by

petition, address or remonstrance.

Article 1, § 29 provides:

To guard against transgressions of the high powers

herein delegated, we declare that everything in this

“Bill of Rights” is excepted out of the general powers

of government, and shall forever remain inviolate,

and all laws contrary thereto, or to the following pro-

visions, shall be void.

App. 6

(1972), in which the Court held that persons protesting

the Vietnam War did not have a First Amendment right to

distribute handbills in a large shopping center. In

Hudgens, the Court reiterated that it was rejecting the

rationale of and overruling Amalgamated Food

Employees Union v. Logan Valley Plaza, 391 U.S. 308

(1968), in which the Court had held that peaceful pick-

eters in a large shopping center were protected by the

First Amendment. Although appellant argues that

Hudgens and Lloyd did not overrule Logan Valley, the

Supreme Court has acknowledged that Logan Valley has

been overruled. See Pruneyard Shopping Center v.

Robins, 447 U.S. 74, 81 (1980); Flagg Bros. v. Brooks, 436

U.S. 149, 159 (1978).

Under the First Amendment to the United States

Constitution, before a private property owner can be

subjected to another’s freespeech rights, the privately-

owned property must assume to some significant degree

the functional attributes of public property devoted to

public use. Central Hardware Co. v. National Labor Rela-

tions Bd., 407 U.S. 539, 547 (1972); see Hudgens, 424 U.S. at

516; Gibbons v. State, 775 S.W.2d 790, 793 (Tex. App. -

Dallas 1989), pet. ref‘d, No. 1243-89 (Tex. Crim. App.

September 25, 1991) (not yet reported); Hoffart v. State,

686 S.W.2d 259, 262 (Tex. App. - Houston [14th Dist.]

1985, pet. ref’d); Rains v. Mercantile Nat’l Bank, 600

S.W.2d 121, 123-24 (Tex. Civ. App. - Dallas 1980, writ

ref’d n.r.e.). The evidence in the instant case shows that

the property was generally used for commerce and that

on one prior occasion, pro-choice demonstrators had

gathered at the site. Hopkins had not given his permis-

sion for that demonstration. There is no evidence that the

App. 7

office complex assumed the functional attributes of pub-

lic property devoted to public use. We find no First

Amendment protection for appellant’s activities.

We thus turn to the protections afforded appellant by

the Texas Constitution.? The Texas Constitution’s affirma-

tive grant of free speech is more broadly worded than the

First Amendment’s proscription of Congress from abridg-

ing freedom of speech. O’Quinn v. State Bar of Texas, 763

S.W.2d 397, 402-403 (Tex. 1988). While no Texas case has

held that Texas must grant broader speech freedoms than

the First Amendment, appellant urges us to do so, relying

in large part on California’s decision to interpret a provi-

sion of its Constitution broader than its federal counter-

part.* See Robins v. Pruneyard Shopping Center, 592 P.2d

341 (Cal. 1979). The California and Texas Constitutional

provisions are almost identical.

In Robins, the Supreme Court of California concluded

that its State Constitution protected speech and petition-

ing, reasonably exercised, in a large, privately-owned

shopping center. Robins, 592 P.2d at 347. Our research

reveals that a number of states have constitutional provi-

sions worded similarly to those of Texas and California.

Only a handful of those states have adopted positions

3 A state may adopt by its own constitution liberties more

expansive than those conferred by the federal constitution.

Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81 (1980).

* Although two Texas cases have held that the Texas Con-

Stitution is interpreted co-extensively with the First Amend-

ment, we will address the merits of appellant’s complaint. Gib-

bons, 775 S.W.2d at 793-94; Reed v. State, 762 S.W.2d 640, 644

(Tex. App. — Texarkana 1988, pet. ref’d).

App. 8

consistent with California’s decision in Robins. See

Batchelder v. Allied Stores Intern. Inc., 445 N.E.2d 590

(Mass. Sup. Jud. Ct. — Essex 1983); Alderwood Assocs. v.

Washington Environmental Council, 635 P.2d 108 (Wash.

1981); State v. Schmid, 423 A.2d 615 (N.J. 1980).

Most states having constitutions similar to Califor-

nia’s and Texas’ have refused to adopt California’s

approach. See Bock v. Westminster Mall Co., 797 P.2d 797

(Colo. App. 1990, cert. granted); Fardig v. Municipality of

Anchorage, 785 P.2d 911 (Alas. App. 1990); Fiesta Mall

Venture v. Mecham Recall Comm., 767 P.2d 719 (Ariz.

App. 1988, rev. denied); Jacobs v. Major, 407 N.W.2d 832

(Wis. 1987); Western Pennsylvania Socialist Workers 1982

Campaign v. Connecticut Gen. Life Ins. Co., 515 A.2d

1331 (Pa. 1986); Woodland v. Michigan Citizens Lobby,

378 N.W.2d 337 (Mich. 1985); Shad v. Smith Haven Mall,

488 N.E.2d 1211 (N.Y. 1985); Cologne v. Westfarms

Assocs., Inc., 469 A.2d 1201 (Conn. 1984). In these states,

the business property owner has a right to exclude

thirdparties from exercising forms of speech on the prop-

erty.

The few states which have followed Robins to permit

an exercise of free speech at large shopping malls have

refused to extend the same speech protections to protes-

tors at abortion clinics. See City of Sunnyside v. Lopez,

751 P.2d 313 (Wash. App. 1988); State v. Brown, 513 A.2d

974 (N.J. Super. Ct. 1986); Brown v. Davis, 495 A.2d 900

(N.J. Super. Ct. 1984); Ingram v. Problem Pregnancy of

Worcester, Inc., 488 N.E.2d 408 (Mass. 1986). In Sunnyside,

the Court held, “the center is private property and its

owners may bar the exercise of free speech regardless of

its nature or whether it is possible to reasonably regulate

App. 9

it.” Sunnyside, 751 P.2d at 319. Even California has refused

to extend Robins to private abortion clinics. See Allred v.

Shawley, 284 Cal. Rptr. 140, 143 (Cal. App. Dist. 4, 1991);

Planned Parenthood of San Diego and Riverside Counties

v. Wilson, 282 Cal. Rptr. 760, 766 (Cal. App. Dist. 4, 1991).

Our review thus shows that no state with a constitu-

tion similar to ours has been willing to extend speech

protections to the extent which appellant advocates. In

the states which have recognized speech protections

greater than the First Amendment, all have declined to

extend such protections to property like that in the pre-

sent case. The courts, in rejecting the free-speech claims,

have considered factors such as the size of the shopping

center, the amount of disruption to the business entities

caused by the speech activity, the degree of public invita-

tion extended by the center, the degree that the property

has been dedicated to public use, safety matters, and the

owner’s property rights. See, e.g., Allred, 284 Cal. Rptr. at

142-147.

In considering the factors used by the states above,

we find no reason to protect appellant’s speech or con-

duct under the Texas Constitution. The Stonegate com-

plex is substantially different from the large shopping

malls considered in other states. The Stonegate complex

contained three buildings which were subdivided to pro-

vide office space for about a dozen tenants who shared a

common parking lot. Stonegate is a modest business cen-

ter, whose tenants are primarily engaged in medical or

real estate businesses. Stonegate does not appear to have

any attributes of a “town square.” In Robins, by contrast,

the Pruneyard Center was a large shopping mall which

App. 10

catered to approximately 25,000 persons daily. Stonegate

is physically and functionally different.

We also find that appellant’s conduct, and that of the

protestors here, differed substantially from the free-

speech advocates in Robins. The speech in Robins was

peaceful and did not interfere with the business of the

center. Here, although appellant contends that he was

merely standing on the complex property, not blocking

the clinic’s door, we find that, when viewed in context,

appellant was a leader of the group which came onto

Stonegate to interfere with a tenant’s normal business

operations. These intruders were not merely picketing,

handbilling, or engaging in peaceful speech. They were

sitting on the ground blocking entry to the building that

housed the clinic.

We now turn to several specific matters raised by

appellant in sub-points under point of error one. Appel-

lant contends that because pro-choice demonstrators had

met at the abortion clinic one week before his arrest, the

complex was either a public forum or a limited public

forum dedicated to public debate on the abortion issue.

In the cases from other jurisdictions, there was no show-

ing that the property in question was used to air pro-

abortion views. Although we acknowledge the factual

difference, we disagree with appellant’s conclusion. Even

in California, for example, “It is only when the owner of

private property has created a ‘forum’ for the expression

of ideas similar to the traditional ‘town square’ that mem-

bers of the public are constitutionally [under the Califor-

nia Constitution] protected in the expression of their

ideas in a manner contrary to the wishes of the property

owner.” Wilson, 282 Cal. Rptr. at 766; see also Johnson v.

App. 11

Tait, 774 P.2d 185, 190 (Alas. 1989) (tavern not same

character as shopping mall so owner could exclude

others); see also Western Pennsylvania Socialist Workers 1988

Campaign, 515 A.2d at 1335, where the Supreme Court of

Pennsylvania, in a case analagous to the instant case, held

that a shopping mall open to the public solely for com-

mercial purpose is not a public forum. Another case on

point is Brown v. Davis, 495 A.2d at 903-04, where the

issue was whether a private citizen (“plaintiff”), who was

charged with criminal trespass, may enter upon the park-

ing and work areas of a multi-business office complex

(“Avenues of Commerce”) to espouse an anti-abortion

thesis directed to prospective patients of one of the ten-

ants without the consent of the landlord-owner. The court

held that the plaintiff was not entitled to enter defen-

dants’ private property against defendants’ wishes to

engage in the described expressional activity. Id. at 904.

The court, in so holding, reasoned:

[T]he Avenues of Commerce is not the func-

tional equivilant of a suburban shopping center,

which may be characterized as an alternative to

an urban downtown shopping area where the

public at large is invited. The Center is normally

used by employees of tenants and prospective

customers visiting specific businesses for the

limited services made available to them. It is not

a place to which a general consumer would go

to shop for personal, household or general busi-

ness merchandise.

Id. 903.

While the record in this case shows that one prior

pro-choice rally was held on the clinic’s property, we

hold that this one rally, without the owner’s permission,

App. 12

did not transform the office complex into a “town

square” for free-speech purposes.

Appellant further contends in support of his position

that because he was arrested in a public place as defined

by the Texas Penal Code his speech was protected. We

disagree. The accessibility of the public to the place has

no impact upon our consideration of this issue. The free-

speech advocates in all of the above cases asserted their

rights in “public places.” The mere fact that a business is

“open to the public” does not mean that the business has

assumed “to some significant degree” the functional

attributes of public property devoted to public use. See

Central Hardware, 407 U.S. at 547. We can find no state

that has granted free-speech rights to a person merely

because private property was used in a public manner.

Appellant next contends that the trespass statute, as

applied to him, is unconstitutional because it significantly

impairs protected speech. We find this point without

merit, as it is premised on a finding that his conduct was

protected. As we have found that it was not, we also find

this argument without merit. See Right to Life Advocates,

Inc. v. Aaron Women’s Clinic, 737 S.W.2d 564 (Tex. App. -

Houston [14th Dist.] 1987); Hoffart v. State, 686 S.W.2d

259, 262 (Tex. App. - Houston [14th Dist.] 1985, pet.

ref’d), cert. denied, 479 U.S. 824 (1986).

We find no merit to appellant’s first point, and it is

overruled.

In his second point of error, appellant contends the

evidence is insufficient to support his conviction. In

reviewing the sufficiency of the evidence, an appellate

court views the evidence in the light most favorable to

App. 13

the verdict to determine whether any rational trier of fact

could have found the essential elements of the offense

beyond a reasonable doubt. Baugh v. State, 776 S.W.2d

583, 585 (Tex. Crim. App. 1989); Butler v. State, 769 S.W.2d

234, 239 (Tex. Crim. App. 1989).

Specifically, appellant asserts that because he had the

permission of a tenant to come onto the property for

business purposes, he was not on the property without

consent. The evidence showed that Stonegate housed

about a dozen separate businesses. Bryan Moore leased

an office in the center for his real estate business. Moore

and appellant had business dealings in the past and

apparently had an on-going periodic business relation-

ship. The record shows that around the time of the inci-

dent appellant visited Moore at his office about once a

month.

Hopkins testified that Moore, as well as any other

tenant, could invite someone onto the property and allow

him to park and walk on the property. The parking lot is

common to all the businesses, and apparently any mem-

ber of the public-at-large could enter the property to

patronize any business. Appellant testified that he was

going to see Moore on the morning of his arrest and was

just waiting on the property when he was arrested. Thus,

appellant contends that the undisputed evidence showed

that he had consent to be on the property.

In support of his position, appellant relies on Hann v.

State, 771 S.W.2d 73 (Tex. App. - Fort Worth 1989, no

pet.). In Hann, the defendant and the complainant had a

bona fide dispute concerning whether the defendant had

easement rights on certain property. The Court of

i ie

App. 14

Appeals held that because of the unsettled legal dispute,

no rational trier of fact could have found that the defen-

dant was on the property without effective consent. We

do not find Hann controlling.

Here, Hopkins was the owner and general manager

of Stonegate. He testified appellant had his consent to

come onto the property for business purposes. On the

morning of appellant’s arrest, Hopkins approached

appellant, identified himself and requested that appellant

leave the property. Hopkins testified that he had the

authority to take care of the property; appeilant, in his

testimony, acknowledged that Hopkins had the authority

to ask him to leave. Appellant further testified that he

was not looking for Moore when he went to the back of

the property where the abortion clinic was located but

instead went back to see what he could do to prevent

abortions.

We find this evidence sufficient to sustain the convic-

tion. Appellant was not prosecuted for entering the prop-

erty. He was prosecuted for remaining on the’ property

after being notified to leave. The jury was free to deter-

mine whether appellant was at the site to conduct legiti-

mate business dealing with Moore or to engage in

activities related to the abortion protest. As appellant

sang with the protestors and admitted that he was at the

clinic to see what he could do to prevent abortions, we

find the evidence sufficient for the jury to have found

that appellant’s purpose was not to engage in business

with Moore.

Furthermore, we find that Hopkins’ direct notice to

appellant to leave the premises deprived appellant of any

App. 15

right to be on the property at that time regardless of any

past general invitation to come onto the property for

business purposes. We find no bona fide dispute concern-

ing appellant’s right to be on the property. The evidence

is sufficient to sustain the conviction. Appellant’s second

point of error is overruled.

In his third point, appellant contends that he was

denied due process because a police officer failed to

provide him with a chance to leave the property before

being arrested. Appellant claims that Corpus Christi

Police had a policy of arresting persons at abortion clinics

only if an officer was assaulted or if a person vandalized

or attempted to break into a clinic and that, as he did not

fall within these criteria, his arrest did not conform to the

announced police policy, and thereby violated his due

process rights. We find appellant’s complaint without

merit.

Without regard to whether the law would support

such a conclusion on those facts, we overrule appellant's

point. Our review shows that appellant has misconstrued

police department policy. Corpus Christi Police Chief

Henry Garrett testified that the policy gave officers at the

scene discretion to make arrests to keep the peace or

enforce the law. Any person who pushed an officer or

caused property damage, however, would be arrested.

Thus, it was police department policy to arrest anyone

assaulting an officer or causing property damage. Any-

one not committing these acts was subject to arrest at the

officer’s discretion. Because appellant’s point is premised

on his incorrect construction that only certain violators

were subject to arrest, we need not address this point any

further. Appellant’s third point is overruled.

App. 16

In his fourth and fifth points, appellant contends that

the trial court erred when it refused to submit two of his

requested charges to the jury. Appellant's first requested

charge defined “public place” pursuant to the Texas Penal

Code and then instructed the jury to find appellant “not

guilty” if they found that he through mistake formed a

reasonable belief that he was in a public place and that

his belief negated the culpability required for the com-

mission of the offense. The trial court refused to giveap-

pellant’s requested charge.

“Mistake of fact” is a defense defined by the Penal

Code. Tex. Penal Code Ann. § 8.02 (Vernon 1974). Section

~ §8.02(a) provides:

It is a defense to prosecution that the actor

through mistake formed a reasonable belief

about a matter of fact if his mistaken belief

negated the kind of culpability required for

commission of the offense.

Appellant contends that the “mistake of fact” was

raised by his testimony that he believed he was in a

public place and that he had a right to be where he was.

We find that appellant was not entitled to the requested

instruction. The evidence does not show that appellant

—was mistaken about any fact which negated an element of

the offense. If appellant believed that he was not tres-

passing because the location was a public place, that

belief would have been a mistake of the law rather than a

mistake of fact. The trial court instructed the jury on

“mistake of law.” Appellant was not entitled to the “mis-

take of fact” charge requested.

App. 17

Appellant next contends that he was entitled to the

following “mistake of fact” charge:

Further if you believe from the evidence that on

the occasion in question the defendant commit-

ted the acts alleged, but you further believe, or

you have a reasonable doubt thereof, that, at the

time of the alleged acts, he had through mistake

formed a reasonable belief about a matter of

fact, to wit: that his continued presence on the

property would not be a trespass because the

alleged owner, Mr. Hopkins, did not advise the _

defendant that he would be arrested if he did

not depart, and that said mistaken belief

negated the culpability required for the commis-

sion of the offense stated in Paragraph ___ of

this charge, you will find the defendant not

guilty.

Appellant testified that he believed his continued

presence on the property was not trespass because Hop-

kins did not advise him that he would be arrested if he

did not depart. We do not find any evidence that appel-

lant “formed a reasonable belief about a matter of fact

which negated the kind of culpability required for the

commission of the offense.” The culpability required for

this offense was that appellant knowingly remain on

Hopkins’ property without his consent after being noti-

fied to leave. Appellant was not mistaken about his con-

tinued presence on the property or the departure notice

given. He was mistaken about whether he would be

arrested for staying. There is a significant difference

between a person believing that he is not trespassing and

a person believing that he will not be arrested for tres-

passing. Appellant’s mistaken belief that he would not be

App. 18

arrested did not negate the culpability required for tres-

pass. The trial court correctly overruled appellant's

requested charge.

In his sixth through eleventh points of error, appel-

lant contends that the trial court erred by excluding evi-

dence which was relevant to his defense of necessity and

defense of third persons. In Boushey v. State, 804 S.W.2d

148, 150-153 (Tex. App. - Corpus Christi 1990, pet. ref’d),

we held that a similarly situated defendant was not enti-

tled to these defenses. Boushey controls the disposition of

the sixth through eleventh points of error. The trial court

did not err in excluding appellant’s proffered evidence.

Points six through eleven are overruled.

The judgment of the trial court is affirmed.

/s/ Gerald T. Bissett

GERALD T. BISSETT,

Assigned Justice

Opinion ordered published. Tex. R. App. P. 90.

Opinion delivered and

filed this the 20th

day of February, 1992.

App. 19

CHIEF JUSTICE CLERK

PAUL W. NYE CATHY WILBORN

JUSTICES DEPUTY CLERK

NOAH KENNEDY MARY JANE DUARTE

ROBERT J. SEERDEN .

J. BONNER DORSEY gs oe ome

GILBERTO HINOJOSA

FEDERICO G. HINOJOSA JR. FAX: 512-888-0794

COURT OF APPEALS

THIRTEENTH SUPREME JUDICIAL DISTRICT

TENTH FLOOR

NUECES COUNTY COURTHOUSE

CORPUS CHRISTI, TEXAS 78401

December 3, 1992

Clifford L. Zarsky Carlos Valdez

Attorney at Law County Attorney

4710 Everhart Nueces County Courthouse

Corpus Christi, TX 78411 901 Leopard - Room 206

Gene A. Garcia Corpus Christi, TX 78401

Attorney at Law

809 S. Port

Corpus Christi, TX 78405

RE: Case No. 13-91-00111-CR

Trial Court No. 90-3938-3

Style: Zarsky, Clifford Louis

v. The State of Texas

Dear Counsel:

The appellant’s motion to stay issuance of mandate

was this day granted by this Court.

Respectfully submitted,

CATHY WILBORN, CLERK

By: /s/ Mary Jane Duarte

Deputy

App. 20

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App. 21

CHIEF JUSTICE CLERK

PAUL W. NYE CATHY WILBORN

JUSTICES DEPUTY CLERK

NOAH KENNEDY MARY JANE DUARTE

ROBERT J. SEERDEN TELEPHONE:

J. BONNER DORSEY os5.ane nets

GILBERTO HINOJOSA

FEDERICO G. HINOJOSA JR. FAX: 512-888-0794

COURT OF APPEALS

THIRTEENTH SUPREME JUDICIAL DISTRICT

TENTH FLOOR

NUECES COUNTY COURTHOUSE

CORPUS CHRISTI, TEXAS 78401

July 30, 1992

Clifford L. Zarsky Carlos Valdez

Attorney at Law County Attorney

4710 Everhart Nueces County Courthouse

Corpus Christi, TX 78411 901 Leopard —- Room 206

Gene A. Garcia Corpus Christi, TX 78401

Attorney at Law

809 S. Port

Corpus Christi, TX 78405

RE: Case No. 13-91-00111-CR

Trial Court No. 90-3938-3

Style: Zarsky, Clifford Louis

v. The State of Texas

Dear Counsel:

The appellant’s motion for reconsideration en banc

was overruled by this Court on this day.

Respectfully submitted,

CATHY WILBORN, CLERK

By: /s/ Mary Jane Duarte

Deputy

App. 22

CHIEF JUSTICE CLERK

PAUL W. NYE CATHY WILBORN

JUSTICES DEPUTY CLERK

NOAH KENNEDY MARY JANE DUARTE

ROBERT J. SEERDEN TELEPHONE:

J. BONNER DORSEY 512-888-0416

GILBERTO HINOJOSA

FEDERICO G. HINOJOSA JR. FAX: 512-888-0794

COURT OF APPEALS

THIRTEENTH SUPREME JUDICIAL DISTRICT

TENTH FLOOR

NUECES COUNTY COURTHOUSE

CORPUS CHRISTI, TEXAS 78401

July 30, 1992

Clifford L. Zarsky Carlos Valdez

Attorney at Law County Attorney

4710 Everhart Nueces County Courthouse

Corpus Christi, TX 78411 901 Leopard - Room 206

Gene A. Garcia Corpus Christi, TX 78401

Attorney at Law

809 S. Port

Corpus Christi, TX 78405

RE: Case No. 13-91-00111-CR

Trial Court No. 90-3938-3

Style: Zarsky, Clifford Louis

v. The State of Texas

Dear Counsel:

The appellant’s motion to recall mandate was this

day granted by this Court. This Court’s mandate is

hereby withdrawn.

Respectfully submitted,

CATHY WILBORN, CLERK

By: /s/ Mary Jane Duarte

Deputy

cc: Ernest Briones, County Clerk

ocho alt

App. 23

CHIEF JUSTICE CLERK

PAUL W. NYE CATHY WILBORN

JUSTICES DEPUTY CLERK

NOAH KENNEDY MARY JANE DUARTE

ROBERT J. SEERDEN TELEPHONE:

J. BONNER DORSEY 512-888-0416

GILBERTO HINOJOSA

FEDERICO G. HINOJOSA JR. FAX: 512-888-0794

COURT OF APPEALS

THIRTEENTH SUPREME JUDICIAL DISTRICT

TENTH FLOOR

NUECES COUNTY COURTHOUSE

CORPUS CHRISTI, TEXAS 78401

March 26, 1992

Gene A. Garcia

Attorney at Law

809 S. Port

Corpus Christi, TX 78405

Carlos Valdez

County Attorney

Nueces County Courthouse

901 Leopard - Room 206

Corpus Christi, TX 78401

RE: Case No. 13-91-00111-CR

Trial Court No. 90-3938-3

Style: Zarsky, Clifford Louis

v. The State of Texas

Dear Counsel:

The appellant’s motion for rehearing was overruled

by this Court on this day.

Respectfully submitted,

CATHY WILBORN, CLERK

By: /s/ Mary Jane Duarte

Deputy

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.