*1 of support summary judg- disagree majority’s sufficient to with the construction Duke, 788 Appellant specifically Authority that v. ment. asserts Jacinto River San (1990). though appellant applicable care is Even defined standard of “[n]o that specifically argued I the correct Appellees.” outlined the affidavits of has not Chaney Dr. is the agree. of care for standard applicable specialists, to medical standard “applicable de- standard of care” is Chaney’s that Dr. appellant complained has law, matter of fact. terminable as a not support is insufficient to the sum- affidavit Dr. Chaney When stated an incorrect stan- raising mary judgment, thereby ground affidavit, dard of care in his it was not I As a matter of on which would reverse. necessary appellant for to file a controvert- law, Chaney’s Dr. affidavit either suffi- correct, appli- ing setting affidavit out the cient, I it is not or it not. conclude cable, care; this a “fac- standard of is not judg- support summary sufficient tual” matter that needed to con- ment. prevent summary judgment trovert to for Chaney con- Chaney. Chaney, my opinion, Dr. Dr. movant for Dr. failed to as summary clusively negate any of the four essential judgment, had the burden action, through appellant’s of prove, uncontroverted, expert affi- of cause be- elements injury tеstimony, ing duty, duty, proxi- that he in accord- breach of davit acted care; regard to the applicable ance with standard of mate cause. With breach element, instead, Chaney, “proved” Chaney had Dr. did not conclu- duty Dr. that he sively acted in accordance with a establish that he did breach lesser standard care, applicable specialists. being care than the stan- applicable standard Therefore, ap- the burden never shifted to dard of treatment reasonable proof; specialist plastic in the area pellant controverting prudent to introduce Chaney surgery Dr. meet his would undertaken under thе did not initial burden. have appli- Texas similar Supreme Court stated the same or circumstances. cable rule as follows: and remand the summa- would reverse grant summary trial court appellee Chaney, along ry judgment for judgment by an an- default lack of the case. with the remainder of response swer or to the motion summary
non-movant when the movant’s legally
judgment proof is insufficient. en-
The movant still must establish his summary judgment
titlement to a on expressly presented
issues to the trial by conclusively proving essen- all tial elements of his cause action or DEDONATO, Appellant, Linda Evon law_ defense a matter of Summa- judgments ry must stand on their own v.
merits, and the non-movant’s failure to Texas, Appellee. The STATE of supply by cannot de- respond answer No. 01-88-00426-CR. summary judgment nec- proof fault the right. essary tо establish movant’s Texas, of Appeals Court Dist). (1st Houston Basin City Houston Clear Creek (Tex.1979). Auth., April points of error and two Appellant’s one review, present, for our specifically sufficiency appellees’
question
affidavits, claiming the are insuf- affidavits judgment. support summary
ficient presented this specifically has
Appellant respectfully to us.
ground for reversal *2 Mitchell, Marquez, Hous- Robert
Robin ton, appellant. for Holmes, County Dist. Harris John B. Glaeser, Kathy Curry, & Atty., Alan di Giannaula, County Dist. At- Harris Asst. tys., appellee. for EVANS, C.J., and DUGGAN Before O’CONNOR, JJ. and FOR REHEARING ON MOTION EVANS, Chief Justice. original opinion issued our
We withdraw fol- September and substitute lowing opinion in its stead. proceeding, the trial nonjury In a conducting a sex- appellant guilty of found permit, ually oriented business days at three punishment her and assessed $250. and a fine of confinement error, first appellant’s at county criminal court she contends the offense jurisdiction over lacked law information. charged alleged that The information knowingly intentionally delivered and had merchandise, goods, and en- provided tertainment sexually- premises in a enterprise on the namely enterprise, oriented commercial corpo- lounge, located within an adult at 5610 city of Houston limits of the rate lounge Richmond, did said adult from the Chief secured have a Director as re- designated his Police or 28-122(a) the Hous- quired Section governing City Ordinance ton oriented businesses. is not in the city
The Houston
cited
us,
appellant has
but
record before
Ac-
in her brief.
portions
applicable
28-122(a) of
section
cording
appellant,
provides:
the ordinance
any person to
unlawful
It shall be
any business
own,
or conduct
operate,
brief,
pro-
According
appellant’s
enterprise
located within the
un-
clearly
defined
enterprise.
less there is a
for the
scribed conduct
words, “It shall
by the
use
Ordinances,
Houston,
City
Code of
Tex-
it
The ordinance makes
unlawful....”
be
Ill,
28-122(a) (1988).
as ch.
art.
section
*3
(1)
enterprise with-
operate an
unlawful to
therefore,
Appellant argues,
that the of-
(section 28-122(a)); (2) operate
permit
aout
charged
fense
is nоt a
information
the enter-
permit posted
within
misdemeanor,
B
and that the munici-
class
counterfeit,
(section 28-122(b)); (3)
prise
court,
pal
county
not the
criminal court at
deface,
change,
permit
or alter a
forge,
law,
jurisdiction
had exclusive
over the of-
(4)
(section
128(b));
merchandise
allow
28—
charged.
fense
outside the
activities to be visible from
or
disagree
appellant’s contention.
We
with
28-129(a));
(section
certain
enterprise
allow
expressly
legislature
has
authorized
lights
pictorial representations
types of
municipalities
restrict
the location of
to
enterprise
the exterior of the
to be used on
sexually
rеquire
oriented businesses and to
129(b));(5)
(section
types
certain
allow
28—
that such businesses obtain a
before
(6)
(section 28-129(c));
painting
of exterior
operating.
Ann.
Texas Local Gov’t Code
(sec-
types
signs
of exterior
allow certain
1988).
243.003(a)
(Vernon
and 243.007
secs.
28-130(a)); (7)
younger
persons
allow
tion
provides
The Code
that
years
age
of
to
on the
than seventeen
be
may
businesses
be:
28-131(a).
premises section
areas;
(1)
particular
restricted to
or
alleges that
appellant
further
(2) prohibited
a certain
of
within
distance
penalties for violations of the
criminal
school, regular place
religious
of
wor-
regulations are set out
above-enumerated
ship,
neighborhood,
residential
or other
ordinance,
28-133 of the
section
specified
governing body
land use the
of
states that:
municipality
county
finds to be
article
any provision
of this
Violation
operation
of a sexu-
inconsistent with
punishable pursu-
that is not otherwise
ally oriented business.
2372w, Texas Revised Civil
ant to Article
243.006(a)
Tex.Local
Code Ann. sec.
Gov’t
Statutes,
amended,
punisha-
as
shall be
1988).
(Vernon
Cities
also restrict the
hun-
by a fine of not less than one
ble
density of such businesses. Tex.Local
($150.00)nor more than
fifty
dred
dollars
(Vernon
243.006(b)
Ann. see.
Gov’t Code
($200.00)
dollars
...
two hundred
1988).
provisions of
the Local
Under
Appellant alleges in hеr
that “the
brief
Code,
of Houston
Government
City
general
of Houston ordinance is a
authorized,
deciding
whether to issue
regulatory
governing
various as-
business,
sexually oriented
permit to a
operations
sexually oriented
pects of the
enterprise complies
whether the
determine
(the ‘enterprises’)
businesses
within
requirements
the location
set forth in
with
provides a
municipality. The ordinance
Memet v.
642
its ordinance. See
issuance,
comprehensive system for the
de-
(Tex.App.
[14th
— Houston
nial,
permits
and revocation of
renewal
ref’d).
1982, pet.
Dist.]
enterprises in the
operation
of such
that the Houston
ordi
We conclude
provides
City Houston. The ordinance
pursuant
the authori
adopted
nance was
if it meets certain
that a
will issue
the Local Government
ty
chapter
243 of
in-
in section 28-125
conditions enumerated
therefore,
Code, and,
that the violation
types
signs,
volving location and the
requirements
punishable
its location
rep-
painting, lights,
pictorial
exterior
B misdemeanor. See
v. Cole
class
State
premises,
to be used on the
resentations
man,
- Houston
things.
provides
It further
among other
ref’d).
pet.
[1st Dist.]
by creat-
of the ordinance
for enforcement
accordingly
hold
liability for
of cer- We
ing criminal
violations
jurisdiction over
at law had
the ordinance.”
criminal court
specific sections of
tain
alleged,
(Tex.App.—Houston
the offense
and we overrule
the S.W.2d
[1st
point
pet.).
error.
hold that
first
no
We
Dist.]
allege
specifically
failure
loca-
State’s
error, appel
In her
second
tion violation
the information constitutes
punish
lant asserts the trial court assessed
required
a defect
exceeding
punishment
ment
the maximum
Otherwise,
objection.
by an
de-
raise
that,
applicable
argues
to the
She
offense.
waived.
Crim.P.Ann.
fect was
Tex.Code
because the information did not contain an
1.14(b) (Vernon
We
Supp.1989).
art.
ac-
offense,
allegation about
location of the
cordingly
appellant’s second and
overrule
punishable by
only.
a fine
the offense is
points of
third
error.
support
position,
of her
she cites Smith v.
*4
State,
(Tex.Crim.App.1978).
A defendant error, consideration of defect, appeal, of form or about court’s irregularity or information, provisions ordinance. applicable of the in an indictment substance Indeed, applicable trial on cites several date on before commences, in her brief. Pri- portions forfeits the waives and mеrits in any prompting in the dissent its appeal, or or to object thereto on right to dispute original opinion, no what- proceeding. Tex. there was post-conviction other (Vernon 1.14(b) provisions applicable soever about art. Crim.P.Ann. Code State, the ordinance. v. see also Gabriel Supp.1989); sexually a oriented busi- argues reverse did not have The dissent that we must Court the testi- permit. the conviction because of the Texas The State offered ness Appeals v. in Howeth prove of Criminal decision mony of Officer Shields to (Tex.Crim.App.1983), 645 S.W.2d sexually was a oriented Club Cascades in and this Court’s earlier decision Martin license. operating without business (Tex.App.— testimony, appears Officer From his it 'd). 1987, pet. Houston ref [1st Dist.] in his copy of had a Shields on Officer while he was the stand. hand Howeth, adop- decided the 1986 before ordinance, parts described (in- Shields tion of the Rules of Evidence Criminal business, notice), which defines cluding judicial specifi- 204 on Rule He permit guidelines. cally its holding restricted to convictions and some municipal permit, de novo explained applies followed trial how a club trial county court at law. case is not a department investigates Our police how novo, originated county court refused, de but and, if the application, Further, case, thе How- at law. unlike our said, appeals. the club Officer Shields how opinion notes eth that “the record opinion, Cascades Club his appeal is as bare Hubbard’s as Mother sexually oriented business. *5 concerning cupboard ‘contents’ what.the 28- Shields testified that section Officer might Howeth, ordinance 645 the be.” 122(a) re- city the Houston ordinance Here, police at 789. the officer S.W.2d own, person a to have a quires objection the con- testified without about operate, or conduct a ordinance, tents of the refers and And, 28-112(c) said, he section business. applicable portions in of the ordinance per- have a presumes a business does not her brief. door, posted front mit if one is not at the distinguishable rea- Martin is for several 28-122(b). by section Officer required sons, importantly, but most because testify penalties did not about Shields objec- in defendant that ease raise the did The not ask the the ordinance. State did tion in the trial court also asserted judicial to take notice of the trial court Thus, Martin, appeal. only not point on in attempt did not to introduce ordinance and opportunity did the trial court an have evidence. it into objection, and rule on but the consider copy the ordinance was included No properly preserved also was for this issue rehearing, her record. In motion for this by ap- a point Court’s review of error on its majority based appellant contends are ma- peal. The circumstances in Martin wrong the ordi- decision on the version of terially different from the state nance.1 case, and, contrary to the record this dissent,
arguments presented we by the conviction conclude trial court’s The I. upheld. must be we majority disagree on how rehearing is The State’s motion for major- problem in define the this ease. rehearing is granted, appellant’s motion for merely ity to hold ordinance was seems denied, judgment and the of the trial and, improp- if piеce of one more evidence is affirmed. considered, required to erly defendant was was object. believe O’CONNOR, J., dissents. that the State of the State’s case element O’CONNOR, Justice, dissenting. When the State does prove. did not offense, a of the elements of an Dedonato, prove all at Linda Evon waitress obliged Club, to inform State defendant is was convicted Cascades oversight. at a club its serving for drinks criminal court wrong response, quoted majority’s original opinion, it ordinance. In In the quotes rehearing, only and summaries now relies on copiously from the ordinance. On appellant's briefs. opinions on ordinance from we our aрpellant contends based 326
This Court already has held that verdict is not a objection trial-time to the State’s failure to ask the trial court to A take evidence. motion for instructed verdict judicial ordinance, request notice of the is a judgment or to as a matter of Martin, therefore, evidence, introduce the ordinance into law. stands for the proposition fundamental objection error. Martin v. that no trial time 630, necessary preserve was the error. [1st - Houston 1987, ref’d). pet. Today’s opinion is Dist.] Martin, In using phrase at odds with our decision in Martin. error,” “fundamental this Court reversed acquitted the conviction and defendant. In A. Judicial notice оf ordinances under decision, arriving at that we cited Howeth rule 204 (Tex.Crim. App.1983). Howeth, In the Court of Crimi adoption of rule Tex.R.Crim. Appeals nal held the failure to introduce a Evid., eased the getting burden of a munici- city ordinance fundamental error even pal ordinance into a criminal trial. Before though parties stipulated to the con adoption party of rule was re- Howeth, tents of the ordinance. quired to copy introduce a certified of it Appeals Court of Criminal reversed with Wellborn, generally into evidence. See Ju- acquit, though directions to even defendant dicial Notice Under Article II the Texas assign did not error. Id. аt 788.3 Evidence, Mary’s Rules 19 St. L.J. (1987). Now, party may still introduce it rehearing, majority says On or, way, party get old can the ordi- distinguishable today’s Howeth is from nance into the record the less formal case because was issued Howeth before asking method of the trial court to take and, adopted; rule 204 was because the judicial McClung, Lawyers notice of it. P. *6 specifically Howeth decision restricted its Handbook Texas Criminal Practice holding municipal to convictions court (1989). by county followed trial de novo court at law. Both distinctions were also those two employ When the State decides to rule Yet, in true at the time we issued Martin. record, get 204 to an ordinance the into the reasoning Martin we found the Howeth (1) judi- State must: ask the court to take compelling. If distinctions the were not ordinance; (2) provide cial notice of the the Martin, they relevant in are not relevant enough trial court with information so it here. ordinance; (3) can take notice of the and give the defendant notice. Tex.R.Crim. that, majority The also states “unlike our right, Evid. 204. The defendant has the case,” opinion the noted that Howeth upon timely request, hearing to a on the appeal record was as bare Moth- taking judicial propriety of the court’s no- cupboard. Maj. op. p. er Hubbard’s tice of the ordinance. Id.2 cupboard equally anything, is bare. If Our stronger was than record Howeth parties the record here: in Howeth
B. The Martin ease
stipulated
of the
to
contents
Austin
majority says that
is distin-
The
Martin
municipal code.
guishable because the Martin defendant
court,
majority
distinguish
The
objection
raised the
in the trial
and
tries
Martin
quoted
only objection by saying
The
Officer Shields
“relevant
appellant here did not.
provisions”
disagree.
I
by
defendant was
of the ordinance.
raised
the Martin
after
trial,
only
The
sections of the ordinance Officer
in a motion for instructed verdict.
at
A motion for instructed
Shields read into the record were subsee-
D. of decisis The stare analysis engage any of the authority to ordinance, rely I will on our unauthorized primary objectives of stare of the One reasoning copy of thе ordinance. employ for a court to a decisis is ordinance, case, ing noting that it considered the only post-1984 the Court of in which The fact, legal fact. is as a social not a Id. Appeals has rule considered Criminal (Tex.Crim. majority explaining said to rule In Chapa v. judicial notice of an Chapa, majority request a court take App.1987). noted ordinance, (as fact), "may legal that, party be pas a a passing a under Houston request, as well priva required” make a as expectation of senger a taxi cab had formal against provide information.” cy. majority the court with "sufficient defended itself dissenting justices Id. challеnge for consider of error, of the Government Code. point In her first con- 243.001 Local more than juris- Any city not ordinance that restricts tends the court did have sexually oriented business municipal origi- diction courts have the location of a because 215.- authority under the of section jurisdiction nal and exclusive over the of- does so Code. majority responds by saying 074 of the Local Government fense. The adopted pursuant to the the ordinance was B. Houston’s ordinance authority chapter 243 of the Local Code, therefore, the and coun- Government adopted sexually Houston respectfully ty jurisdiction. court had authority ordinаnce under business suggest missed or section granted by either section 215.074 appellant’s challenge. 243.006(a) Code. of the Local Government 28-122(a) the Houston ordi- Section lo- A. The Local Government Code and per- requires the director to issue nance cation offenses upon oriented business mit for of the con- application, unless one or more authority of section 215.074of Under Code, present. 28-125 is listed in section may cities con- ditions the Local Government restricts 28-125 of the ordinance places of Section trol the location conduct get sexually oriented businesses by requiring them to the location of public amusement matters. as other Some a license. Tex.Local well Ann. Gov’t.Code 1988). (Vernon to a license are: impediments A location 215.074 non-location §§ applica- complete under section 215.074 applicant conduct offense does information; misdemeanor. Tex. the outside punishable gives as a class C false tion or (Vernon 54.001(b) comply does appearance of business § Local Gov’t.Code Ann. 1988). con- jurisdiction or, of location or revokes a regulations; the director with is in under section 215.074 enterprise duct offenses within permit for the same municipal chapter court. City Ordinance days. Houston Tex.Code Crim.Proс.Ann. (Vernon Supp.1990). art. 4.14 III, section 28-125. article authority of section 243.001 28-133, Under the crimi- outlines Section Code, cities con- violating any the Local Government penalties nal sexually oriented only trol the location of permits, states: related to ordinances by requiring such businesses businesses article provision of this any Violation get permit. Tex.Local Gov’t.Code pursu- Ann. punishable that is not otherwise 1988). (Vernon 243.003(a) 243.007 §§ Local ant to [section 243.001 of under section 243.001 A location offense punishable shall be Government Code] as a class B misdemeanor. punishable one hundred Tex. fine of not less than by a (Vernon 243.008 § ($150.00)nor more than two Ann. fifty dollars Local Gov't.Code of- 1988). of a location jurisdiction ($200.00)_ hundred dollars is in 243.001 offense under section fense *8 added.) City’s The scheme (Emphasis county court. therefore, violations, that a or is location sexually of city the location the Lo- If a controls 215.074 of offense section conduct businesses, the it do so under as a punishable Code cal Government court; 243.- 215.074or section a authority municipal of section in misdemeanor class C The Code. of Local Government 243.001 001 of the offense under section location city by adoption the punishable authority given to Local Government Code diminished county was not court. section 215.074 B of a class misdemеanor as Jolar Cinema 243.001. See section 28-125, of (a) restricts section of Subsection Houston, 695 Houston, City Inc. v. of sexually oriented business- of the location [1st location, — Houston it could Because it restricts es. pet.). no Dist.] chapter 215 under either enacted have been the Local Government chapter 243 of or the location more than If a controls 28-125, section subparts The of businesses, it cannot Code. sexually oriented of matters, could restrict non-location authority the section under do so tried right not her to be chapter pellant not have been enacted under 243 of did waive Code; they by failing Local must an by municiрal Government a court to voice adopted chapter county of the have been under objection jurisdiction are, They Government there- Local Code. court. Id.
fore, punishable non-location violations by fine
only and fall within the exclusive III. Punishment original jurisdiction municipal of the error, appellant point In her second 4.14, under courts article Tex.Code Crim. that the court erred in assess- claims trial (Vernon Supp.1990). Proc.Ann. maxi- ing punishment that exceeded the punishment applicable mum the offense C. information she The informa- for which was convicted. charged appel- We know that the State did include "against appellant filed not tion 28-122(a) violating with of the lant seсtion pertaining to the location of the an element conducting Houston ordinance for business club. place permit. not at a that did have a opinion, majority’s original In the it sus- information, however, not From the we do appellant’s error. tained second why the have know Cascades Club did not rehearing, majority itself reverses On permit. appellant’s point. and overrules second working appellant charged If was with first think the was correct the sexually for a oriented business that did time. permit have a not because of a location county jurisdiction had If the restriction, municipal either the or violation, the omission of element jurisdiction court could have had over punishment to the location restricts the If, however, was offense. penalty range. lowest See Smith v. charged working sexually with for a orient- (Tex.Crim.App.1978). In ed business that did have a Smith, degree an for third felo- indictment restriction, of a because non-location alleged property ny theft the value municipal jurisdiction court had exclusive upper specify was over but did $200 over offense. $10,000. allege failure limit of ap- This Court must determine whether prohibited theft upper limit conviction for pellant charged was for violation of a degree, if the in the first second even under 215.074 ordinance authorized section proven. greater value had Id. at been de- or section 243.001. information Here, the element of location is akin appellant’s working offense scribed hierarchy values in property Smith. even of Smith: Applying rationale lounge did not have a adult [that] though proved that the offense State or his from the Chief of Police secured offense, the a location omission required by designated Director as Sec- of loca- punishment-determining element 28-122(a) City Ordi- tion of the Houston punishment range to tion restricts the governing oriented busi- nance classification, fine-only common lowest nesses. is, minimum, en- Appellant at the offensе. Nothing why the information states hearing sentencing. on to a new titled permit. not have Club did Cascades allege did not hold the State would *9 Fundamental error IV. jurisdiction of necessary invoke the facts to error, con- her third county court. fundamentally tends the information ap- majority contends that because allege essen- because it did defective information, object to the did not pellant agree. I of the offense. tial element I she the error. do not believe she waived was fundamen- juris- information to the trial court’s believe could waive error identify 97, it did State, tally 574 defective because Lackey v. S.W.2d diction. permit The informa- аp- club’s violation. (Tex.Crim.App.1978). would hold 100 330 State, (1)
tion v. interpreted encompass: 546, could be 741 (Tex.App.— S.W.2d 549 1987, non-location violation of the ref’d). re- pet. Dallas quirements, offense; fine-only which is a
(2) 215.074, a location offense under section offense; (3) fine-only
which is a or a loca- 243.001,
tion offense under section jail
a fine and offense. The information
did not state that club did not have properly painted, because it was not signed, or located. JONES, Appellant, Glen Dale State, 538, In Standley v. 517 S.W.2d v. (Tex.Crim.App.1975), 541 the court of crimi- Texas, Appellee. The STATE of appeals nal held that an indictment should allege every fact which affect No. A14-88-01084-CR. degree punishment. kind Without Texas, Appeals Court of allegations, such punishment cannot bе (14th Dist.). Houston State, determined. Hawkins v. 383 S.W.2d 416, 417 (Tex.Crim.App.1964). Without the 12, April 1990. necessary facts punishment, to determine 10, Rehearing May Denied the indictment in Standley was held to be defective. Standley, 517 fundamentally
S.W.2d at 541. The court reversed on Id. at 542.
unassigned error. majority responds by saying appel challenge
lant did not the information on ground appeal,
this until and therefore issue, 1.14, citing
waived the article Tex. (Vernon Supp.1990). Code CRIm.Proc.Ann. 1.14(b)
I do not believe article abolished the
concept charg fundamental error e.g. v.
ing See Fortune instrument. 364, (Tex.Crim.App.1988)
745 S.W.2d
(no object waiver of error for failure to offenses); Murk joined
indictment that two (Tex.App.— 775 S.W.2d (no pet. granted)
Dallas waiver of object
error failure to when State by deleting essential
amended indictment State, intent); Milam v.
element of - Dallas (no failure
pet. granted) waiver of error for object alleging to indictment conduct illegal time the conduct
that was not at the
occurred). recognize the dis- fails jurisdictional defects and
tinction between sufficiency of notice
defects If the information does not state
offense. jurisdiction, vest the court with
facts which Murk, Only at 416.
it is void. *10 Houston, Schneider, Stanley appel- non-jurisdictional defects the information G. Watkins object. lant. are waived for failure