Telia D. Casel v. State
363 S.W.3d 660
| Tex. App. | 2011Background
- Patricia Rivera, Telia Casel, Joanna Walton, and a fourth appellant are charged under City of Houston Ordinance No. 97–75 for conducting as entertainers in a sexually oriented business without a permit and for violating the ordinance’s no-touch provision.
- Appellants seek pretrial habeas relief arguing the ordinance is vague, overbroad, preempted, and disproportionate.
- The trial court granted habeas relief and then denied it after a hearing; the appellate court reviews de novo on issues of constitutional law.
- The court holds that the ordinance requires a culpable mental state and is not unconstitutionally vague, not preempted, and not grossly disproportionate; thus habeas relief is denied.
- The appeals are consolidated for judicial economy since they involve identical issues and arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ordinance is overbroad for lacking a culpable mental state | Rivera et al. contend the absence of mens rea makes the statute overbroad | The State argues the statute requires culpable mental state and is not overbroad | Ordinance requires a culpable mental state; overbreadth claim fails |
| Whether the ordinance is vague on terms like fondling and areola-area | Rivera et al. argue terms are vague and open to arbitrary enforcement | State contends terms have common meaning and adequate notice | Not vague; terms provide sufficient notice and guidance |
| Whether the ordinance improperly expands city authority beyond Chapter 243 (preemption) | Appellants claim authority rests only on owner/operator permitting; preemption bars enforcement | Chapter 243 authorizes broad regulation of sexually oriented businesses, including conduct | Ordinance provisions are authorized under Chapter 243; not an unlawful expansion |
| Whether punishment for violation is grossly disproportionate (Eighth Amendment) | Disproportionality given Class A misdemeanor status for conduct | Punishment serves deterrence and public safety; not disproportionate | Punishment not grossly disproportionate; issued affirmed |
Key Cases Cited
- Ex parte Weise, 55 S.W.3d 617 (Tex. Crim. App. 2001) (writ of habeas corpus for facial constitutional challenges retained when remedies by appeal exist)
- Aguirre v. State, 22 S.W.3d 463 (Tex. Crim. App. 1999) (multifactored test for implied mental-state in statute interpretation)
- Walker v. State, 195 S.W.3d 293 (Tex. Crim. App. 2006) (factors for determining whether strict liability applies)
- Flores v. State, 33 S.W.3d 907 (Tex. App.—Houston [14th Dist.] 2000) (vagueness standards; common understanding suffices)
- N.W. Enters. Inc. v. City of Houston, 352 F.3d 162 (5th Cir. 2003) (ordinance validly regulates secondary effects of sexually oriented businesses)
- Haddad v. State, 9 S.W.3d 454 (Tex. App.—Houston [1st Dist.] 1999) (ordinance requiring culpable mental state for similar provisions)
- Thompson, 44 S.W.3d 180 (Tex. App.—Houston [1st Dist.] 2000) (permitting provisions and ascertainability considerations)
- Chacon, 273 S.W.3d 375 (Tex. App.—San Antonio 2008) (Chapter 243 authority over sexually oriented business regulation)