NO. 07-00-0203 -CR NO. 07-00-0204 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A JULY 24, 2001

______________________________ DAVID MICHAE L GRISW OLD, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE COUNT Y CRIMINAL COURT AT LAW NO. 15 OF HARRIS COUNTY; NOS. 9939029 A ND 9939030; HON ORABLE JEAN HUGHES , JUDGE

_______________________________ Before BOY D, C.J., and REAV IS and JOHN SON, JJ. Presenting fou r iss uesw hich he s aysreq uire rev ers al, a ppe llant Dav id M ic h ael Grisw old challeng es his c onviction of mana ging the All Star News & Video, 3415 K aty Freeway, Houston, “an adult bookstore” without a valid m anager’s perm it and, while acting
as an operator of an adult arcade, allowing an obstructed view of an adult arcade fromthe manager’s station in violation of City of Houston Ordinance No. 97-75. H is punishment,2

assessed after aben ch t rial, was by confinemen t in the Harris County Jail for a period of 180 days, probated for a period ofone year and, i n additi on, in each case a $250 fine was assessed togeth er with court cos ts. In his four issues, appellant contends 1) and 2) because the arcade in question was not an adult arcade, the evidence is insufficient to prove any violation of the ordinance, and because 3) and 4) t he definitions of “enterprise,” “prim arybusiness,” and “adult arcade” are unconstitutionally vague and overbroad, th e evidence is le gally

insu ffic ient

to s upp ort

his con vi ct io n. Fo r r ea so ns we l at er re co un t, we mus t reverse the j udgme nt of the trial court and enter an acquittal in each case.
Because it is neces sary to a proper di scussion of the i ssues presented, we will first review the evidence in the case. The State’s first w itness, Sergeant Dav id Lovett, a 22- year veteran of the Hous ton Police Departm ent [HPD], testified that he was as signed to the “vice” division of the force, which investigates prostitution, public lewdness, indecent exposure, and liquor violati ons. He averred that one of his duties was to investigate
sex ually oriented businesses to d etermine whether they were in violation of any city ordinan ces. Prior to the fi ling of the charges of which appellant was ultim ately convicted, Lovett, on June 21, 1999, w ent to the All Star

Ne ws a nd Vi de o E mpo ri um. At th e t i me of thisvisit, Lovett m et appellant . His tr ip to that establishm ent w

as part of “an on going investigation . . . regarding their sexually oriented business for perm its and also nume rous com plaints of

indecent

exp osure an d public lew dness. ” At

thetim e, a ppe llant

w as t he o nly employeein the business and was operating the cash register and the entrance counter. These facts led the officer to conclude that appell ant was the “manager” of the busine ss.3

Lovett noticed that there w as “an assortment of adult por nography tape s, videos, magazines, as well as som e nonpornographic m aterial. Also some vibrat ors , sex lubes and jells.” After completin g his investi gation and consulting other officers at the scene, Lovett discussed som e potential violations of the ordinan ce with appellant. According to Love tt, “[w]e advised hi m of the unobstructed – unobstruct ed view from the m anager’s station to t he a dult

arc ade . We adv ised himof wall penetrations inside the adult arcade, and we also advised himof the m anager’s license.”
Lovett ave rre d th at to bein c om plian ce w ith t he o rdin anc e, a ppe llant m ust be a ble to view custo m ers any

whe re w ithin the business itself, which he could not do because the arcade portion had plywoo d wal ls and an electric entrance door wh ich could only be opened by pushing a button behind the counter. Presum ably, a pp ellant could not go through the doo r be cau se h e co uld n ot p ush thebut ton and w alk

through the door at the
sa me time. The arcade porti on to which the door l ed was t o an area in which a patron goes into a booth and watches a m ovie from a selection of pornographic or nonpornograp hicm ovie s. When asked about the “wall penetrations,” Lovett ex plained theyare “pre-drilled hol es inside the booth that are used by patrons for anonym ous sex. ” Final ly, Lovett testified on th at occasi on he watc hed other officers videotape the establishment

and give appellant a warning for ordinance violations, and tha t appel lant signed the warni ng indi cating that h e understood i ts contents.4

Then, the State turned the focus of its exam ination of Lovett to S eptem ber 6, 1999, the date app ellan t was a rre ste d on thecha rge s giv ing r ise to hisconviction. Because of
a com plaint from a concerned parent whocom plained that her son had visited “th e A ll Star Ne ws at 3 415 Ka ty Freeway and had gone into the arcade sec tion and apparently had been invol ved in oral sex.” On that date, Lovett said, he arrived at the location, paid a $6.00 fee, and entered the arcade section. There were no patrons in the video rental portion of the store but, hetestified, as he ent ered the arcade portion, he “observed app rox im ate ly25 ‘ por n’ p atr onsin the back, and [he] observed tw o of these patrons tobe masturbating.” He said he paid the $6.00 entrance fee to appellant because he wasthe only employee present that ni ght. Lovett esti mated that only about 5% of All Star’s inventory

was non pornographic and 14 of the 36 m ovie channels available were not pornograp hic.
W ith reg ard to w het her

All Star was a sex ually oriented business, Lovett wascrossexam ined repeatedly about w hat he believed would constitute a “prim ary” business. Lovett averred tha t in making his determinati on of whether a store is a sexually ori ented busin ess, he look s “a t th e to tal p ictu re o f th e store , w hat is offered to custom ers. I look at the arcade section, see wha t type of m ovies are available for viewing. I look at the prim arybusiness. I don’t – I cannot give you jus t a simple answ er of one item versus another.” When queried whether he had any guidelines as far as a certain percentage of adult content

tha t w ould make a store’s busi ness sexually ori ented, he admitted he di d not have any such guidel ines. Lovett also testified that All Star ran an ad in an adu lt boo kstore trade5

publication which featured t he fact that it had an “[a]ll new super huge m ovie arcade with over 30 different titles.”
Officer Sh ipley , th e S tate’ssecond w itne ss, tes tifie d th at h e ha d be en to th at A ll Star location approxim ately 50 times over the past three or fo ur years. W hen he entered All Star’s prem ises on Septem ber 6, 1999, he did not see any patrons in the video rental section. He, too, paid the $6.00 admission fee to a ppe ll ant, who “buzzed” him into the arcade section. Shipley pointed outtha t th e do or to th e ar cad e se ctio n was e lect ron icall y controlled, and he believed appellant was the m anager that night because he w as t he o nly employeethere and wasin charge of the prem ises. He also described the arcade portion of All Star and noted that ap pellant could not see into that portion of the store.
As he walked into the arcad e, Shipley noticed four or five m en “just leaning up and walking around. ” As he w alked through the arcade, S hipley noticed about 20 to 25 patrons. More specifically, he described those patrons as participating in a “stalking-type ritu al” which m eant “[t]hey’re looking for anonym ous partners for sex.” H e added that

so me patrons “w ou l d mo ti on us i nt o t he ro oms or th ey wou l d s ta nd i n t he ro oms ma sturbating and then motion us, you know, or make re fe re nc e t o h av e u s c ome in and join them , that type of activi ty.” He also obser ved two wall penetrati ons in the cubi cles. Shipley videotaped the prem ises that day, w hich was received into evidence. He said appellant did n ot p res ent a pe rm it au tho rizin g him to a ct a s th e m ana ger

of asex ually oriented business and that he neve r saw such aperm it. Ano ther off icer, Officer W ill iams,6

also paid the$6. 00 f

ee a nd w as a dm itte d tothearc ade por tion by app ellan t. He a lso s aid thatappellant’s view into the arcade w as “obstructed byplywood and S heetrock wall,” and “upon goin g into th e vid eo b oot hs, it w as n ote d th ere w as a‘gl ory hole ’ or

a wall penetration between t he two boo ths.” He said that three of the ar c ade patr ons w ere arrested for indecent expos ure and, when asked if he knew whatwas going on bac k there, appellant replied that he “didn’t want to know . . . and he tried not to goback there.”
Officer Rob er t F ou li s te st if ie d t ha t a bu si ne ss k no wn as Houston All Star News, located at t he s am e ad dre ss as All Star, had unsuccessfully applied fora sexually oriented business permit in April of 199 7 on two occa sions. The first application was denied because of a failure to mee t certain “signage” [sign] requirements and fr ee standing building color requirements. The second application was deni ed because of cert ain residential den sity req uirements. Foulis said that All Star previously had a permit, but when the ordinance waschanged, it lost it. He also said that appellanthad no manager’s per m itand had never

app lied f

or s uch a pe rm it. He a lso p ointed o ut t hat in ord er to ob tain
a mana ge r’ s pe rmi t, “[ a] ll you ne ed is two passport-type photos, valid governm ental issued Id with a picture and a $29 money order and notto have been convicted of any of, like, 1 of 13 crimes

within the last 5 years.” During his pre sen tat ion o f th e ca se, app ellan t te stif ied a nd s aid h e was “ definite ly notthe m anager.” In describing a typical day at w ork, he averred the “ [f]irst thing I do
w ould be to check in with the previous clerk as far as m aking sur e that t he bank

is in order.7

We have a set am ount in the bank. I check the bank, and as long as that is in order, the previous clerk signs off on it . I sign italso, it’s deposited and then I take over the shift.” According to hi m, All Star has a hired crew to do the j anitorial work and he spent m ost of his time behind the counter. He said that because of the electronic door it would be “vir tua llyimpossible” for

him to go into the arcad e area and he had no reason to go i n. He averred that he never ordered inventory or stocked the shelves of All Star. H e said that he was paid $6.00 per h our without benefi ts.
Michael Alle n Foste r, an empl oyee ofAl l Star’s owner, Campus Investm ents, testified that approximately 40 perce nt of the video s All Star stocks are adult and tha t less than 40 percent of

the written ma terial they stock are adult m aterial. He did not include magaz ines such as Playboy, Penthouse, and G allery as adult m aterial beca use the y “are sold eve ryw her

e.” Fos ter

obs erv ed t hat

All Star was in the business of buying, selling, and trading ma gazines and videos. He stated that there are 42 arcades or “mini- theaters” at All St ar and t ha t th er e a re 17 cha nn el s i n t he fi rs t two ha ll way s an d i n t he ba ck t wo hall ways there are 36 channels. Ea ch “ mini-thea ter” has its own video player and the
mov ies are changed out so that mo re than 60 percent are non-adult. Foster opined that outof t he 3 6 ch ann els, usu ally 20 w ere non -ad ult a nd 1 6 were adu lt “d epe ndin g on if there’s a VCR brokeo r not broke.” He also said that he is the only one w ith a key to change out videos. He also adm itted that if there we re 25 custom ers in different arcades atthe sam e time, all 25 could watch the sam e m ovie. He believed that between 65 and 70 percent of the lobby floor area was allocated to non-adult materials. W hen questioned8

as to wh at other merchandise Al l Star carri es, Foster testi fied “sexual aids, lu brica nts , contracepti ves, some vibrators, toys, gag gi fts, fuzzy handcu ff s. We sell just about everything you cou ld im agin e. A spir ins, j ust

a lot of s tup id things.” Foster conceded that
w hen an item is ru ng u p on thecas h re gister, the re isno w ay to te ll w het her

it w as a dult or non-adult because only the price is entered. Appellant also called Police Lieutenant Douglas Larry Sm ith, who had b een with the vice department for about 15 years. Defense co unsel’s que stioning of him focused on testimony

Sm ith had given a t a t rial in 1995 and his reference there to th e term “50/50 store” which m eant 50 percent adul t merchandise and 50 p erc ent non -ad ult. If

theadu lt material w as le ss tha n 50 %, thesto re d id not need a permit. H e described som e of the sta nda rdshe u sed in determining whether a busi ness is sexually or iented. Speci fical ly, whether mo re than 50 percent

of their stock is X-rated, as well as w hat itemsgenerated the store’s business and t he square footage of the business. Sm ith also stated tha t, to his know le dge, there were no written criteria within his com mand explicating standards by which a police officer could follow in arriving at the 50/50 store determ ination. During cr oss-exam ination by the State, Sm ith explained that the ordinances them selves served as written guidelines. In determ ining w het her a bu sine ss is s ex ually oriented, “[w]e look for s everal things. W e look at the – the particul ar things th at they have for sale or for rent, m erchandise. The clientele, we look for clientele that’s going into the business. We look for –we also look in t he a rea of h avethe y – did t hey hav e a s ex ually9

oriented business pe rmi t in the pa st. Things such a s that. ” Sm ith said thepolice are “looking for a good fa ith effort [of] w hat thebusiness

is actua lly . . . do ing.” He adm itted tha t th e of

fice rs w ould m akean “ eye ball estimate ” about what is being sold. Calculating
a store’s revenue from

sexually oriented m aterial as opposed to other m erc han disew ould be ver y ha rd to do , bu t th at it m ight be d one in t he caseof asto re t hat is a “close c all.” Sm ith had visite d All Sta r “a cou ple of t im es” and , in his o pinio n, it w as c lear ly a sex ually oriented business and “wouldn’t bea close call.” Chapter 243 of the Local Governm ent Code em powers cities toreg ulate se xu ally oriente d businesses. In r elevant par t, it defi nes a sexually or iented busi ness as:

. . .a s ex p arlor, nude studio , modeling studi o, love parlor, adult bookstore, adu ltmo v ie th eater, adult video arcade, adult m ovie arcade, adult video store, adult mote l, or other com merc ial enterprise the primary business of which is th e offering o f a service or the selling, renting, or exhibiting of devices or any other item s intended to provide sex ual stimulation or sexual gratification to the custom er.
Tex. Local Gov ’t Cod e Ann. § 243.0 02 (Ver non 1999 ).
In carrying out this autho rit y, the city enacted its ordinance num ber 97-75. The ordinan ce defines “ma nager,” “sexually oriented enterprise,” and “adult bookstore” as foll ows:
M anager. Any person w ho supervises, directs or m anages any employeeof an enterpri se or any other per son who conducts any busine ss in an enterpri se with respect to any activity conducted on the prem ises of the enterprise, including any “on-site manager.”10

Houston City Ordinance No. 95-75 § 28-251.

Enterpr ise. An adult bookstore, a dult cabaret, adu lt encoun ter parlor, adu ltlounge, adult model ing stu dio, adult movie theatre or any establishment

whose p rimary business is the offering of a service or the selling, renting or exhibiti ng of devices or any other ite ms i nten ded to provide sexual stim ulation orsexual gratifi cation to i ts customers, and which is distinguished by or characterized by an em phasis on m atter depicting, descr ib ing or relating to specified sexual activities or specified anatomical areas. Adul t Books tore . An es tablishm ent w hose prim arybusiness is the offering to customers of books, magazines, films, or videotapes (whet her for viewing off-prem ises or on-premises by use of m otion pictu re ma chines or other image-producing devices), periodicals, or ot her printed or pictorial m ate rialsw hich are inte nde d topro vid e se xu al stimulation or sexu al gratification to such custom ers, and w hich are distinguished by or characterized by an em phasis on ma tter depicting, describing or relating to specifi ed sexual activi ties, or speci fied anato mical areas. Houston City Ordinance No. 97-75 § 28-121.
Adult arcade . . . an y prem ises that is subje ct to regulation under Chapter 243 of the Local Governm ent Code, as am ended, to which m embers of the pub lic or memb ers of any club, group or ass ociation are admitted and permitted to use one or more arcade devi ces. Arc ad e device. . . any coin- or slug-operated or electronically or m ech anically

controlled machine or

device that dispenses or effec tuates the dispensing of e ntertainment, that is intended for the viewing of five (5) or fewer persons

in exchange for any

paym ent of any consideration. Entertai nment shall mean : 1) Any live exhibition, display or performance; or 2) Any s till picture(s) o r m ovie pictur e(s), whether

m ech anically, elec

tric ally or electronically displ ayed; or11

3) Any com bination of the foregoing, in which the specified anatomical areas or specified sexual activities are depicted. Houston City Ordinance No. 97-75 § 28-81. In his first issue, appellant challenges the sufficiency of the evidence to s ustain a holding that All Star was an adult bookstore, and that appellantserved as a m anager. In his second issue, appellant argues th e evidence is insufficient to prove All Star was an adu ltarcade or that appe llan t acted as an operato r of an adul t arcade. Because these issues ar e so cl os el y r el at ed , we will consider them together. The standards g overning
our review of legal and factual suf ficie ncy challenges are now so w ell established as to be
ax iom atic

and it is no t neces sary to reiterate them here. See Jackson v. V irg inia , 443 U.S. 307, 99 S.Ct. 278 1, 61 L.Ed.2d 560 (1979), and Clewi s v. State , 922 S.W.2d 1 26 (Tex.Crim .App. 1996). Suffice it to say thatwe m ust first determ ine whether the evidence is legally sufficient and, if it i s not, render a j udgme nt of acquittal. Id. at 133. If the evidence is lega lly suffi cient, we must then determine if it i s factuall y su fficien t when
meas ured by the standard ex plicated in Cle wis

. Id.
The evidence which w e have set out in som e detail is ample to sustai n the tr ial judge’s finding that All Star is both an adult bookstore and an adult arcade. The question then presented is whe ther the evidence is sufficient to sustain a finding thatappellant was acting as a manager/operator of Al l Star within the purview of the ordi nance. The evi dence is undisputed thatat the tim e in question here, appellant was the only em ployee present12

and was ope r ating t he cash register and the electronic control adm itting patrons to the arcade.
The very recent decision of the 14 th Court of Appeals in Pedraz a v. State , 34 S.W.2d 697 (Tex.App. –Houston [14 th D ist. ] 2000, no pet.) is instructive in interpreting the ordinance. In that c a se, the court w as also presented w ith the question of whet her the evidence was s ufficient to sustain a finding thatthe appellant was an “op era tor ” of an a dult arcade. The cou rt o f ap pea ls noted the trial evidence concerning Pedraza w as 1) he was the only person working behind the co unter, and 2) he w as “ in cha rge ” of thearc ade w hile [the police officer] was there. Id . at 700. En route to reversing theconviction, the appellate court viewed the ordinance as
a who le and, in pa rticular, th e detailed re quirem ents th e “operator” m us t c omp ly w ith in order to obtain a permit. Id. at 6 99. Af ter doin g so , it com m ent ed t hat it w as c lear tha t in the ordinance, the city intended an o perator to m ean m ore than a clerk or an em ployee who sim ply

minds th e store, and concluded that the trial evidence was legally insufficient to show t hat Pedraza poss essed “m anagerial control” such that he was an operator as that term is d efin ed in theord inan ce a nd w as r eally nothing “more t han a m ere clerk. ” Id. at 700. Here, the evidence w as very sim ilar to that before the Pe d r a za court. As w

as the case in Pe d

r a za , we ca n co nclu de t hat app ellan t was o nly

a clerk w ho m inded the store and whose res ponsibili ties were not s ufficient make him a “m anager” as the termis defined1 As did the Pe d r a za court, we note tha t the ordinance does place a duty on employeesand age nts of the arc ade to keep the view unobst ructed. How ever, the State did not char ge appell ant as an employee or agent a nd that questi on is not befor e us. 13 in the ordinance. 1 Appellant’s first twoissues m ust be, and are, sus tained. That action null ifie s the necessity for a discussi on of appel lant’s remaini ng two issues. Accordingly, the j udgme nts of the trial court are reversed, and j udgme ntrendered acquitting appellant of

the off enses of w hich he w

as conv icted. Te x. R . App. P. 43 .2(c).
John T. Boyd Chief Justi ce Do not publish.