Cecil Eugene Ethridge v. State

Opinion issued June 23, 2011 In The Court of Appeals For The First District of Texas ———————————— NO. 01-10-00027-CR ——————————— Cecil Eugene Ethridge, Appellant V. The State of Texas, Appellee On Appeal from the County Criminal Court at Law No. 12 Harris County, Texas Trial Court Case No. 157920901010 MEMORANDUM OPINION A jury convicted appellant Cecil Eugene Ethridge of owning an adult arcade without a permit in violation of section 28-91(a) of the Code of Ordinances of the City of Houston. See Houston, Tex., Ordinance 28-91 (Jan. 15, 1997) (codified at Houston, Tex., Rev. Ordinances ch. 28, art. II, § 91 (1997)). The trial court assessed punishment at confinement in county jail for 120 days and a $2,000 fine. On appeal, Ethridge argues that the trial court erred in granting the State’s motion in limine, thereby depriving him of his constitutional right to due process and a fair trial. We affirm. Background On January 29, 2009, Officers M. Dexter and P. Camp, along with two other officers, conducted an on-site investigation of Gaslight News and Video, a video rental store and adult arcade in Houston, Texas. Dexter testified that he was aware of Gaslight Video’s reputation as an adult arcade because he had grown up in the neighborhood and attended school nearby. Dexter had been the lead investigator on the case for approximately three years. Prior to January 29, 2009, he determined that Gaslight did not have a permit to operate as an adult arcade. Dexter conducted several undercover investigations to understand the business’s operations and to collect evidence that it was operating an adult arcade without a permit. He testified that there was not a posted permit and there was no record of a request for a permit. On January 29, the officers entered the business, identified themselves as police officers to the employees and patrons, entered the back section of the store, identified as an “adults-only” area, and photographed the premises. Dexter testified that inside the adults-only area, there were adult videos available for rent or purchase and numerous private viewing booths in the adult arcade section. He described the adult arcade as dark and seedy. The officers encountered approximately 15 patrons, all of whom were in the adult arcade area. Photographs taken of the scene depicted stained walls, soiled tissues, discarded underwear, and a used condom. In each booth, there was a television monitor; different pornographic movies were playing in several booths. Later, Dexter determined that Ethridge was the director of N.W. Enterprises, Inc. and that Gaslight News and Video was an assumed name of N.W. Enterprises. Ethridge was indicted for operating an adult arcade without a permit. Before trial, the State moved to exclude any evidence related to Gaslight’s primary business or its enforcement guideline known as the “50/50 rule.”[1] The State acknowledged that, with respect to certain sexually oriented businesses (e.g., adult bookstore, adult cabaret, adult movie theatre), it is required to prove that the primary business of the establishment is the offering or exhibition of adult content. But because this case involves a violation of section 28-91 of the city ordinance, which regulates only adult mini-theatres and arcades, the State argued that it was not required to prove that the adult arcade was Gaslight’s primary business because the words “primary business” do not appear in the statutory definition of adult arcade. See Houston, Tex., Ordinances 28-81 (January 15, 1997) (codified at Houston, Tex., Rev Ordinances ch. 28, art. II, § 81 (1997)). The State also argued that any evidence of Gaslight’s primary business or the 50/50 rule was irrelevant. In response, Ethridge argued that excluding this evidence would improperly reduce the State’s burden of proof and would eliminate his defense. He urged that the State had improperly interpreted the definition of adult arcade and the Local Government Code definition of sexually oriented business. Over Ethridge’s objection, the trial court granted the State’s motion in limine. Ethridge’s counsel requested the opportunity to make an offer of proof. The court discussed the possibility of allowing him to make the offer before voir dire, but the attorney stated that he preferred to wait until after jeopardy attached. At the end of the first day of trial, the court offered an opportunity to make the offer of proof. Ethridge’s counsel expressed his desire to wait until the following day, and the court obliged his request. On the second day of trial, the remaining State’s witnesses testified and both sides rested. Before the charge conference, Ethridge’s counsel renewed his request to make an offer of proof and asked the court to “schedule in the bill[] of review.” The court responded that he could make the offer after the charge conference. Following the charge conference the court recessed for lunch. When the court reconvened, the charge was read to the jury, the parties made their closing statements, and the jury retired to deliberate. It was not until this time that Ethridge’s counsel renewed his request to make an offer of proof. During the offer of proof, the jury returned with a verdict. The guilty verdict was read in open court, and the jury was excused. Ethridge’s counsel was then allowed to complete the offer of proof. After the offer of proof was made, the court held the punishment hearing and assessed Ethridge’s punishment at confinement in county jail for 120 days and a $2,000 fine. Ethridge appealed. Analysis In his sole issue on appeal, Ethridge argues that the trial court denied him due process and a fair trial by granting the State’s motion in limine, thereby preventing him from presenting evidence on the primary-business defense and the effect of the 50/50 rule. He also contends that section 28-91(a) and the enabling legislation, section 243.002 of the Local Government Code, are unconstitutional as applied to him because they impermissibly lower the State’s burden of proof and do not require the State to prove that adult entertainment is the “primary business” of the adult arcade. Section 243.003 of the Local Government Code provides that municipalities may adopt ordinances to regulate sexually oriented businesses. Tex. Local Gov’t Code Ann. § 243.003 (West 2003). A sexually oriented business is defined as “a sex parlor, nude studio, modeling studio, love parlor, adult bookstore, adult movie theater, adult video arcade, adult movie arcade, adult motel, or other commercial enterprise the primary business of which is the offering of a service or the selling, renting, or exhibiting of devices or other items intended to provide sexual stimulation or sexual gratification to the customer.” Id. § 243.002 (West 2003). The City of Houston restricts where sexually oriented business may be located and requires owners and operators of certain sexually oriented businesses to obtain a permit. See Houston, Tex., Ordinance 97-75 (Jan. 15, 1997) (codified at Houston, Tex., Rev. Ordinances ch. 28, arts. II–III (1997)). Owners of adult arcades and mini-theatres are required to obtain a permit under article II, section 28-91, but owners and operators of other sexually oriented businesses are required to obtain a permit under article III, section 28-122. See id. Some businesses are regulated only if their primary business involves the selling or provision of adult content, but adult arcades are subject to permitting requirements and regulation regardless of whether the provision of adult content is their primary business. Ethridge’s argument on appeal is that it is unconstitutional, as applied to him, to subject adult arcades to regulation regardless of the percentage of business devoted to the provision of adult material. He argues, as he did during the trial court’s hearing on the motion in limine, that excluding evidence of Gaslight’s primary business and the 50/50 rule impermissibly lowers the State’s burden of proof and deprives him of a defense. A ruling on a motion in limine is, by its nature, subject to reconsideration throughout the trial. Norman v. State, 523 S.W.2d 669, 671 (Tex. Crim. App. 1975); Thierry v. State, 288 S.W.3d 80, 86–87 (Tex. App.—Houston [1st Dist.] 2009, no pet.). While the purpose of a motion in limine is to prevent particular matters from coming before the jury, it may not be enforced to exclude properly admissible evidence. See Norman, 523 S.W.2d at 671. Accordingly, a ruling on a motion in limine does not preserve error. Id.; Johnson v. State, 981 S.W.2d 759, 760 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). To preserve error based on the exclusion of defensive evidence through a motion in limine, the defendant must offer the evidence at trial and obtain an adverse ruling. Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998) (citing Fuller v. State, 827 S.W.2d 919, 929 n.10 (Tex. Crim. App 1992)). After obtaining an adverse ruling, the defendant must make a record indicating the nature of the evidence excluded. See Tex. R. App. P. 33.1, 33.2; Tex. R. Evid. 103(a)(2). If the excluded evidence is not apparent from the context of the record, it must be brought forward either through a timely offer of proof or through a formal bill of exception. Warner, 969 S.W.2d at 2. Although the terms “offer of proof” and “bill of exception” are often used interchangeably, they are governed by different rules and the method of error preservation under each is different. Compare Tex. R. Evid. 103 (offer of proof), with Tex. R. App. P. 33.2 (formal bill of exception). When a trial court excludes evidence, a party may preserve error by making a timely offer of proof. Tex. R. Evid. 103. An offer of proof is untimely if made after the charge has been read to the jury. Id. (“The offering party shall, as soon as practicable, but before the court’s charge is read to the jury, be allowed to make, in the absence of the jury, its offer of proof.”). If the offer of proof is untimely and the objecting party fails to preserve error through other means, the error is not preserved. Hernandez v. State, 127 S.W.3d 206, 217 n.14 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d); Darnes v. State, 118 S.W.3d 916, 919 (Tex. App.—Amarillo 2003, pet. ref’d); see Tex. R. Evid 103(b). Likewise, a party may preserve error by making a formal bill of exception. Tex. R. App. P. 33.2. No particular form of words is required, but “[t]he complaining party must first present a formal bill of exception to the trial court.” Id. The trial court must either sign the bill and file it, or refuse to sign it and file a bill of exceptions, which in the court’s opinion, accurately reflects the trial court proceedings. Rule 33.2 contemplates that a formal bill of exceptions will appear in the appellate record. A party who fails either to make a timely offer of proof or to file a formal bill of exceptions does not preserve error from a trial court’s ruling to exclude evidence. Tex. R. App. P. 33.2; see Tex. R. Evid. 301. In this case, Ethridge’s counsel did not seek to elicit testimony regarding the primary business defense or 50/50 rule during cross-examination, nor did he call any witnesses or present any evidence during the defense’s case-in-chief. Ethridge did not file a formal bill of exception under Rule 33.2 of the Rules of Appellate Procedure. The only evidence in the record setting forth the excluded evidence was made during his offer of proof, which was submitted after the jury charge was read. Because Ethridge did not offer the evidence during trial, and he made an untimely offer of proof, any error in excluding the evidence was not preserved. See Warner 969 S.W.2d at 2; Fuller, 827 S.W.2d at 929. Ethridge’s sole issue is overruled. Conclusion We affirm the judgment of the trial court. Michael Massengale Justice Panel consists of Justices Keyes, Sharp, and Massengale. Do not publish. Tex. R. App. P. 47.2(b). [1] The “50/50 rule” is not a statutory defense or an element of a crime; rather, it is an unofficial enforcement guideline utilized by the Houston Police Department to determine if a business should be required to obtain a permit under the sexually oriented business statute. Generally, if a business’s inventory includes less than 50% adult material, the Houston Police Department will not enforce the permitting requirement. See generally 4330 Richmond Ave. v. City of Houston, No. Civ.A. 91-00665, 1997 WL 1403893, at *6 (S.D. Tex. July 17, 1997) (discussing Houston Police Department’s hypothetical application of 50/50 rule).