McKay, David John v. State

Opinion issued July 11, 2002 In The Court of Appeals For The First District of Texas NO. 01-01-00412-CR DAVID JOHN MCKAY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Court at Law No. 2 Brazoria County, Texas Trial Court Cause No. 114,091S O P I N I O N A jury found appellant, David John McKay, guilty of criminal trespass, a class B misdemeanor. The court sentenced appellant to 40 days in county jail, and appellant was given credit for 40 days time served. In a single issue for review, appellant contends it was error to deny his requested special jury charge. We affirm. Background On February 2, 2001, appellant attempted to pass out religious pamphlets at the Starplex Cinema in Lake Jackson. Several employees of the movie theater requested that appellant refrain from handing out his material on the theater grounds. Members of theater management testified that the theater has a general policy prohibiting solicitation on its property. When appellant refused to stop his activities or leave the property, the police were called. The police attempted then to get appellant to leave, but, when he refused, he was arrested for criminal trespass. See Tex. Pen. Code Ann. § 30.05 (Vernon Supp. 2002). At trial, the State presented four witnesses, three of whom were employees of the theater who testified about their interactions with appellant and described the theater's policy that no one is permitted to distribute literature on their private property. The State's other witness was a Lake Jackson police officer who was working as a security guard at the theater. She explained how she tried to convince appellant to leave before she eventually called the police station. Another officer was dispatched to the scene, and appellant was arrested. Appellant presented one witness who testified to the validity and content of maps depicting the theater grounds, and then appellant rested. During the charge conference, appellant requested that the following be included in the jury charge: The Constitution of the State of Texas provides free speech rights to individuals. The purpose of the criminal trespass statute is not to regulate speech but to regulate conduct. The Criminal Trespass statute, (sic) may be constitutionally applied, even to those who trespass to communicate, so long as it is applied without discrimination and is not used to purposefully suppress speech. Now bearing in mind the foregoing instructions, if you find that on the occasion in question, Colleen Gardner, or any of the other employees of Starplex Cinema had the defendant arrested for criminal trespass and you further find that the criminal trespass statute as applied to the defendant was applied with discrimination and was used to purposefully suppress speech, then you will find the defendant not guilty of criminal trespass as alleged in the information. The request was denied, and appellant now asserts this denial was reversible error. Analysis Initially, it should be noted that appellant first presented his free speech-based constitutional challenge to the trial court through a pretrial motion to dismiss. The court denied the motion, and that ruling has not been appealed. Thus, on appeal, appellant exclusively asserts that the constitutionality of the trespass statute, as applied to him, was a question within the provinces of the jury. We disagree. The case cited by appellant, McGowan v. State, does not support his position. 938 S.W.2d 732 (Tex. App.--Houston [14th Dist.] 1996) aff'd sub nom. Weightman v. State, 975 S.W.2d 621 (Tex. Crim. App. 1998). McGowan merely suggests, in dicta, that the constitutionality of a law as applied to a person may be used as a defense. See id. at 741-42. It does not say this is a jury question. It is axiomatic that the jury decides questions of fact, while the trial court decides questions of law. See Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981); Myles v. State, 341 S.W.2d 913, 915 (Tex. Crim. App. 1960). Questions concerning the constitutionality of criminal statutes are questions of law. Owens v. State, 19 S.W.3d 480, 483 (Tex. App.--Amarillo 2000, no pet.). It is the duty of the court, not the jury, to determine the constitutionality of a statute, and this principle applies both when the question is one of pure law and when the question is one of mixed fact and law, as is often the case in challenges to the constitutionality of a statute as applied to a defendant. Because the constitutionality of a statute when applied to given facts is still a question of law, appellant was not entitled to the requested jury charge. We conclude the trial court acted properly in denying the proposed charge. The facts of this case are analogous to those of Hoffart v. State, 686 S.W.2d 259 (Tex. App.--Houston [14th Dist.] 1985, pet. ref'd). In Hoffart, a protester convicted of criminal trespass claimed the trial court erred (1) in denying his pretrial motion to dismiss, in which he argued the statute was unconstitutionally applied to him because it infringed upon his free speech rights, and (2) in refusing to instruct the jury regarding his free speech-based defense. Id. at 262, 264. The Hoffart court found no error regarding the denial of the jury charge. (1) Id. at 264 (noting requested charge improperly suggested jury should interpret the law). Likewise, we find no error here, where the court properly refused to submit the requested charge to the jury. We overrule appellant's sole issue for review. We affirm the judgment of the trial court. Jackson B. Smith, Jr. Justice Panel consists of Justices Hedges, Nuchia, and Smith. (2) Do not publish. Tex. R. App. P. 47. 1. The Hoffart court also affirmed the trial court's denial of the pretrial motion. Hoffart, 686 S.W.2d at 262. 2. The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.