# State’s Brief No. 03-14-00538-CR IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS, AT AUSTIN 

### Gary Don Ray Appellant

v. 

### The State of Texas Appellee On Appeal from the 452nd District Court of McCulloch County in Cause No. 5840; the Honorable Robert R. Hofmann, Judge Presiding

Submitted by: Tonya Spaeth Ahlschwede District Attorney, 452nd District Court Post Office Box 635 Mason, Texas 76856 eMail: tsa@452da.net Tel: 325-347-8400 Fax: 325-347-8404 State Bar Card No. 24025656 Oral Argument Conditionally Requested ACCEPTED 03-14-00538-CR 4584067 THIRD COURT OF APPEALS

AUSTIN, TEXAS 3/20/2015 3:01:06 PM JEFFREY D. KYLE

CLERK

### Identity of Parties and Counsel

Pursuant to th e R

ul e s o f App e l l ate P ro c e d

ure ( “ T ex.R.App.Pro.”), the following i s a c o m p l ete list of the names and addresses o f all parties to the trial court’s f inal judgment and their counsel in the trial court, as well as appellate counsel, so the mem b ers of the Court may at once determine whether they are disqualified to serve or should recuse them selves from participating in the decision of the case and so the Clerk o f the Court may properly notif y th e parties to the trial court’s final judgment or their counsel, if any, of the judgment and all orders of the Court of Appeals. 

### Appellant Gary Don Ray Trial Counsel Jason Johnson SBN 24029637 Genetha Chastain SBN 24036356 600 N. Fisk Ave. Brownwood, Texas 76801 Appellate Counsel M. Patrick Maguire SBN 24002515 945 Barnett Street Kerrville, Texas 78028



### State of Texas Tonya Spaeth Ahlschwede District Attorney, 452nd District Court Post Office Box 635 Mason, Texas 76856 Trial Counsel Tonya Ahlschwede SBN 24025656 Steve Lupton SBN 12699700 Appellate Counsel Tonya Ahlschwede SBN 24025656

i

### Table of Contents Identity of Parties and Counsel.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Index of Authorities.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Statement of the Case.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi Issues Presented in Appellant’s Brief.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi Statement Regarding Oral Argument.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi Note About Abbreviations.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi Statement of Facts.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Appellant’s Point of Error Restated.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Lack of a Policy to Determine Who S hould Be Excluded from a Public Hospital Violates Appellant's Procedural Due Process Rights. Therefore, Appellant's Convictio n S h ould Be Reversed and a Judgment of Acquittal Rendered Becau se the Evidence Is Legally Insufficient to Support a Conviction for Criminal Trespass. The State’s Counter Point.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Evidence Was Legally Sufficient to Supp o rt the Judgment of Conviction. Facts Relevant to Counter-Point.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Summary of the State’s Argument.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Argument & Authorities.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Conclusion.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Prayer.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Certificate of Compliance and Delivery.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 ii

### Index of Authorities Federal Cases : Board of Regents of State Colleges v. Roth , 408 U.S. 564 (1972).

. . . . . . . 16 Hayward v. Day , 446 U.S. 969 (1980).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Hayward v. Day , 619 F.2d 716 (1980).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Jackson v. Virginia , 443 U.S. 307 (1979).

. . . . . . . . . . . . . . . . . . . . . . . 4, 5, 7 Logan v. Zimmerman Brush Co. , 455 U.S. 422 (1982).

. . . . . . . . . . . . . . . 16 United States v. Albertini , 472 U.S. 675 (1985).

. . . . . . . . . . . . . . . . . . . . . 11 United States v. Erickson , 459 U.S. 853 (1982).

. . . . . . . . . . . . . . . . . . . . . 10 United States v. Erickson , 676 F.2d 408 (1982).

. . . . . . . . . . . . . . . . . . . . . 10 United States v. McCarty , 456 U.S. 991 (1982).

. . . . . . . . . . . . . . . . . . . . . 10 United States v. McCarty , 665 F.2d 596 (5th Cir. 1982).

. . . . . . . . . . . . . . . 10 United States v. Smith , 449 U.S. 868 (1980).

. . . . . . . . . . . . . . . . . . . . . . . . 10 United States v. Smith , 618 F.2d 280 (5th Cir. 1980).

. . . . . . . . . . . . . . . . . 10 

### Texas Cases : Anthony v. State , 209 S.W.3d 296 (Tex.App - Texarkana 2006).

. . . . . . . . . . . . . . . . . . . . 13, 14, 16, 18, 19 Bader v. State , 15 S.W.3d 599 (Tex.App. - Austin 2009).

. . . . . . . . . . . . . . . 6 Brooks v. State , 323 S.W.3d 893 (Tex.Cr.App. 2010).

. . . . . . . . . . . . . . . 4, 7 Curry v. State , 910 S.W.2d 490 (Tex.Cr.App. 1995).

. . . . . . . . . . . . . . . . . 20 iii

### Index of Authorities (CONT) 

### Texas Cases (CONT): Dewberry v. State , 4 S.W.3d 735 (Tex.Cr.App. 1999).

. . . . . . . . . . . . . . . . . 5 Ex parte Granviel, 561 S.W.2d 503 (Tex.Cr.App. 1978).

. . . . . . . . . . . . . . 18 Ex parte Montgomery , 894 S.W.2d 324 (Tex.Cr.App. 1995).

. . . . . . . . . . . 16 Gollihar v. State , 46 S.W.3d 243 (Tex.Cr.App. 2001).

. . . . . . . . . . . . 4, 5, 20 Hooper v. State , 214 S.W.3d 9 (Tex.Cr.App. 2007).

. . . . . . . . . . . . . . . . . . . 5 Johnson v. State , 364 S.W.3d 292 (Tex.Cr.App. 2012).

. . . . . . . . . . . . . 5, 20 Karenev v. State , 281 S.W.3d 428 (Tex.Cr.App. 2009)..

. . . . . . . . . . . . 19, 20 Madden v. State , 799 S.W.2d 683 (Tex.Cr.App. 1990).

. . . . . . . . . . . . . . . . 20 Malik v. State , 953 S.W.2d 234 (Tex.Cr.App. 1997).

. . . . . . . . . . . . . . . 5, 20 Roberson v. State , 420 S.W.3d 832 (Tex.Cr.App. 2013)..

. . . . . . . . . . . . 5, 20 Univ. of Texas Med. Sch. at Houston v. Than , 901 S.W.2d 926 (Tex. 1995) .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 Williams v. State , 937 S.W.2d 479 (Tex.Cr.App. 1996).

. . . . . . . . . . . . . . . 20 Wilson v. State , 448 S.W.3d 418 (Tex.Cr.App. 2014.

. . . . . . . . . . . . . . . . . . 4 Yoc-H v. State , No. 07-13-00222-CR (Tex.App - Amarillo, April 28, 2014) .

. . . . . . . . . . . . . . . . . . . . . 17, 18

iv

### Index of Authorities (CONT) 

### Texas Statutes / Codes : Penal Code Section 30.05.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Section 30.05(A).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Section 30.05(a)(1).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Section 30.05(b)(2)(B).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

v

### Statement of the Case

The following i s a brief general stat e me nt of the nature of th e cause or offense: Appellant was charged by information with the o ffense of Criminal Trespass of a Habitation (CR 11). Appellant pled not guilty to a jury on July 21, 2 014 (RR Vol. 3, P. 31). The jury found Appellant guilty (RR Vol. 4, P
. 266). The trial court sentenced Appellant to 2 70 days in the McCulloch County Jail and assessed a $4,000 fine (RR Vol. 4, P. 294; CR 248). Appellant timely filed his notice of appeal.



### Issues Presented in Appellant’s Brief The following are the points upon Appellant has predicated his appeal: The Lack of a Policy to Determine Who Should Be Ex c l u d e d f ro m a Public Hospital Violates Appellant's Procedural Du e Process Rights. Therefore, Appellant's Convic t i o n Should Be Reversed and a Judgment of A cquittal Rendered Because the Evidence Is L e gally Insufficient to Support a Conviction for Criminal Trespass.



### Statement Regarding Oral Argu ment The State requests oral argument only if Appellant is granted oral argument.



### Note About Abbreviations In this brief, the State refers to th e Clerk’s Record as “CR” followed by the appropriate p age: e.g., “(CR 123).” The S tate refers to the Reporter’s Record as “RR” followed b y the volume, page and line numbers: e.g., “(RR Vol. 3, P. 47, L. 12-15). vi

# State’s Brief No. 03-14-00538-CR IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT O F TEXAS, AT AUSTIN 

### Gary Don Ray Appellant
v. 

### The State of Texas Appellee On Appeal from the 452nd District Court of McCulloch County in Cause No. 5840; the Honorable Robert R. Hofmann, Judge Presiding

TO THE HONORABLE THIRD COURT OF APPEALS: COMES NOW, the State of Texas, Appellee in the above styled and
numb e r e d cause, by and through her duly elected District Attorney, and respectfully files the State’s Brief, and would show the Court as follows: 

### Statement of Facts In N o v e mber 2012, Brady Hospital CEO Tim Jones wrote a letter to Appellant an d o th ers saying that the hospital was not going to continue the “temporary charity adjustment” by which certain fees were paid (RR Vol. 3, P. 5 1 )

. People who got that letter also got a letter stating that they w oul d h ave t o 1apply for the indigent care program (RR Vol. 3, P. 51), and that this change was effective January 1, 2013 (RR Vol. 3, P. 5 1 )

. Appellant c ontinued to get the allergy shots he had been receiving, but which had been paid for by the charity plan, even after the effective date of the letter (RR Vol. 3, P. 52). On September 13, 2013, App el l ant entered the hospital and h ad a confrontation with Mr. Jone s, which left Mr. Jones shaken (RR Vol. 3, PP. 5 2- 53). During this confrontation, Appellant made a pistol like gesture, which Jones took as a threat
. J o nes called the police and discussed the situation with Chief Derrick (RR Vol. 3, P. 53). Appellant was issued a C riminal Tres pa ss W arning directing him not to enter the hospital unless for medical emergencies (RR Vol. 4 , PP. 12, 221; (RR Vol. 5 , P. 7 ). Nevertheless, he returned to the h ospital on O ctober 2, 2013, as an intentional act of “civil disobedience” (RR Vol. 4, P. 222), and was arrested (RR Vol. 3, P
. 59; RR Vol. 4, P. 17). He said nothing wh en arrested (RR Vol. 3, P. 59). Appellant returned to the hospital on October 3, 2013, was arrested again (RR Vol. 3, PP. 59-60; RR Vol. 4, P. 15). When Appellant bonded out from the arrest on th e 2nd, he had b een warned b y the judge who conducted the

2magistration, to not return to the hospital (RR V o l. 4 , PP. 1 6-17). The written

w arn in g g i ven to Appellant stated that he would not b e denied n eeded medical assistance (RR Vol. 3, P
. 6 0), and, prior to both arrests, Appellant was as ke d whether there wa s an emergency. On both occasions, he denied any medical reason for the violation of the trespass warning (RR Vol. 4, PP. 15, 31).



### Appellant’s Point of Error Restated The Lack of a Policy to Determine Who Should Be Excluded from a Public Hospital Violates Appellant's Procedural Due Process Rights. Therefore, Appellant's Conviction Should Be Reversed and a Judgment of Acquittal Rendered Because the Evidence Is Legally Insufficient to

S upport a Conviction for Criminal Trespass. 

### The State’s Counter Point The Evidence Was Legally Sufficient to Support the Judgment of Conviction. 

### F a c ts Relevant to Counter-Point The State relies on its statement of facts set out herein, as well as additional facts set out within the argument as necessary.

3

### Summary of the State’s Argument

Th e suffi c i ency o f th e evi denc e i s m e a sured against the charging instrument and a hypothetically c orrect jury charge for the offense charged. When measured in this manner, the evidence is more than sufficient to support the j ury’s finding of guilt. 

### Argument & Authorities Appellant challenges the sufficiency of the evidence to support the conviction for criminal trespass of a habitation. When reviewing a challenge to the legal sufficiency of the evidence to establish the elements of a penal offense, it must be d et e rm ined whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier o f fact c ould have found the essential elements of the offense b eyond a reasonable do ub t. Jackson v. V i rginia , 443 U.S. 307, 318-319 (1 97 9 ) ; see also Brooks v. State , 323 S .W.3d 893, 895 (Tex.Cr.App. 2010); Wilson v. State , 448 S.W.3d 418, 425 (Tex.Cr.App. 2014. The Due P ro c e ss C l a

u se p ro te c t s an ac cu s e d against conviction except u pon proof b eyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. Gollihar v. State , 46 S.W.3d 243 (Tex.Cr.App. 2001). Sufficiency of the evidence is measured by th e elements of th e offense as defined
4by a hypothetically correct jury charge. Roberson v. State , 420 S.W.3d 832, 840 (Tex.Cr.App. 2013); see also Johnson v. State , 364 S.W.3d 292, 294 ( Te x . Cr .App. 2012); Gollihar , 46 S.W.3d at 245; Malik v. State , 953 S.W
. 2 d 234, 235 (Tex.Cr.App. 1997). The hypothetically correct jury c h arge “sets out the law, is authorized by the in di c tm e nt, does not unnecessarily increase the State’s burden of p roof or unnecessarily restrict the State’s theories of liability, and adequately describ es the particular offense for which the defendant was tried.” Johnson , 364 S.W.3d at 294. In reviewing the sufficiency of the evidence, the appellate court’s role i s not to substitute itself as a thirteenth juror. This Co urt m ay n ot re-evaluate the weight and credibility of the record evidence and thereby substitute a judgment for that of the fact-finder. Dewberry v. State , 4 S.W.3d 73 5, 740 (Tex.Cr.App. 1999). Reviewing courts must give deference to “the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to d raw
reason ab l e inferences from basic facts to ultimate facts.” Hooper v. State , 214 S.W.3d 9, 13 (Tex.Cr.App. 2007), quoting Jackson , 443 U.S. at 318-319. When an examination of all of the evidence in the light most favorable to the verdict is made, as required, it is clear that the jury in the case at bar acted as
5rational triers of fact in finding the State proved all of th e essential elements of the offense. Appellant was prosecuted for, and convicted of, Criminal Trespass o f a Habitation, a Class “A” misdemeanor under Penal Code § 30.05
. That statute states: (a) A person commits an offense if t h e person enters or remains o n or in property of an o ther, including residential land, agricultural land, a recreational v ehicle park, a building, or an aircraft or other vehicle, without effective consent and the person: (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so. The information charged that Appellant “did then and there intentionally or k nowingly enter a habitation, namely Heart of Texas Health Care S ystem, B rady, Texas 76825, without the effective c onsent of the said Tim Jones, acting for Heart of T e xas H ealth Care System, and the said defendant had notice that the entry was forbidden . . .” (CR 11). Thus, based o n Pen al Co d e § 30.05(a)(1) and the in formation in this case, the S tate had to p rove that Appellant Ø intentionally or knowin g ly , Ù entered or remained in the Heart of Texas C are System, Ú after having received notice that his entry w a s f or bidden. See Bader v. State , 15 S.W.3d 599, 606 (Tex.App. - Austin 2009).

6Through his testimony, Appellant admitted that:

Ø He had been served with the criminal trespass warning on September 27, 2013 (RR Vol. 4, P. 221). Ù He was arrested at the hospital on October 2 (RR Vol. 4, P. 221). Ú He returned as an act of civil disobedience (RR Vol. 4, P. 222). Û He returned to the hospital on the October 3 , 2013, and was arrested again, all for the same reasons (RR Vol. 4, P. 223). ð He had received written notification not to return to the hospital (RR Vol. 4, P. 228). Consequently, each and every element of the charged offense was admitted, and the evidence was sufficient under the Jackson / Brooksstandard. The notice requirement of the criminal trespass statute is set o ut in Penal Code § 30.05(b)(2)(B), which states: (2) "Notice" means: (A) oral or written communication by the owner or s omeone with apparent authority to act for the owner; (B) fencing or other enclosure obviously designed to exclude intruders or to contain livestock; (C) a sign o r s igns posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden; (D) the p lacement of identifying purple paint marks on trees or posts on the property, provided that the marks are:

7(i) vertical lines o f n o t less than eight inches in length and not less than one inch in width; (ii) placed so that the bottom of the mark i s not less th an three fe e t f

rom th e ground o r more than five feet from the ground; and (iii) placed at location s th at are readily visible to any person approaching th e p roperty and no more than: (a) 100 feet apart on forest land; or (b) 1,000 feet apart on l and other th an forest land; or (E) the visible presence on the p roperty of a crop grown for human consumption that is under cultivation, in the process o f being harvested, or marketabl e i f harvested at the time of entry. In this case, the evidence is absolutely clear that notice was given pursuant to Penal Code § 3 0.05(A) (RR V o l

. 4, P P. 12, 56, 221). N ot only w as written notice served on Appellant (RR Vol. 4, PP. 56, 221), but he was also warned by
a magistrate after bonding out of custody for an arrest on October 2, 2013, that he was forbidden to return to the hospital (RR Vol. 4, PP. 16-17). The jury was charged, consist e ntly with P enal Code § 30.05 (A), that the following was the definition of notice, "Notice" means oral or written communication by the owner or s omeone with apparent authority to act for the owner. (CR 213).
8That the statutory notice had been given is clear from the record. In spite of receiving the notice Appellant made a willful and considered choice to violate the order (RR Vol

. 4 , P P
. 2 2 1–223). Appellant returned to the hospital on October 2, 2013, as an act of civil disobedience and was arrested (RR Vol. 4, P. 221). He returned the next day, the date o f the ch arg ed o ffense, for the same reason, and was, again, arrested (RR Vol. 4, P. 223). In his brief Appellant stat e s that he returned to the hospital because h e wanted someone to explain why he couldn’t g o into the hospital for which h e paid taxes. 1 He states that the issue at trial c entered aro un d whether there was sufficient basis and authority for the issuance of a criminal trespass warning. The State would respectfully disagree. The i ssue at trial w as whether the Appellant violated the statute as charged. Nevertheless, Appellant continues in his brief and attempts to bring in several factors which, the State submits, have nothing to do with an analysis of the sufficiency of the evidence. In his arguments, Appellant neglect s t h o se c a se s whi ch sho w that those who refuse to perform an act requir ed by a statute, such as pay taxes, when they are not asserting any misapprehension of the duty imposed by th e statute, engage in

1 Appellant’s Brief, P. 13. 9a willful act, and th e y must suffer the penalties attending their act of civil disobedience. United States v. Smith , 618 F.2d 280, 2 82 (5th Cir.), cert
. denied, 4 4 9 U
. S
. 868 (1980). Those who b elieve, even in good faith, that the laws ar e unconstitutional are willful violators o f the law if they understand the obligations the statute purports to impose upon them. United S t ates v. McCarty , 665 F.2d 596, 597 (5th Cir.), cert . denied, 456 U.S. 991 (1982). One who believes a statute to be unconstitutional is entitled to challenge it in court but disobeys it only at the risk o f c riminal penalties should the constitutionality of the statute be upheld. A defendant's good faith belief that the statute is unconstitutional does not negate the willfulness of his defiance of the statute, and such a defendant i s not entitled to a jury instruction that his belief in the statute's unconstitutionality shields him from liability for willful violation of the statute. McCarty , 665 F.2d at 597; United States v. Erickson , 676 F.2d 408, 411 (10th C ir.), cert
. d e n i ed, 459 U .S. 853, 103 U.S. 118 (1982); Hayward v. Day , 619 F.2d 716, 717 (8th Cir.), cert . denied, 446 U.S. 969 (1980). Appellant a

pparently believes that his several reasons for returning to the hospital after r e c eiving the no tice not to do so are relevant. Without accepting

10th at as true in any manner, the State would point out that there are several problems with Appellant’s arguments, which occupy the large part of his brief. First, Appellant testified that his return was an act of civil disobedience, and that he knew and was willing to serve jail time for his actions. His motivations are, h owever, quite irrelevant. In a case involving a political protest at Hickham Field in Hawaii, o n a day the base was open to the public, the Supreme Court wrote: Courts in applying c riminal laws generally must follow the plain and unambiguous meaning of the statutory language. Garcia v. United States , 4 6 9 U .S. 70, 75 ( 1984); United States v. Turkette , 452 U.S. 576, 580 (1981). "[O]nly the most extraordinary sh o w ing of contrary intentions" in the legislative history will ju stify a departure from that language. Garcia, supra , at 75. This proposition is not altered simply because application of a statute is challenged on constitutional grounds. United States v

. Albertini , 472 U.S. 675, 680 (1985). The statutory language, thus, is c onsulted , n o twithstanding the political, or other, motivations of the offender. Additionally, the record is clear that Appellant w as not seeking an explanation for his exclusion. He sought to speak with n o o n e . H e was not
s eeking an administrative remedy. He made no contact with anyone re g ardin g the trespass warning and asked no one for any explanation. Also, it i s clear that

11no medical reason for his visit existed. He ch ose not to seek administrative remedy but, rather, to intentionally violate the law (RR Vol. 4, PP. 221-223). Appellant argues that the evidence is somehow insufficient because there
was some questio n about whether or not the hospital administrator had the authority to exclude a member of the public but this is nothing more than a rabbit trail and a misstatement of the requirements of the law o f trespass. That statute requires notice in th e f

o rm of oral or written communication by the owner or
someone with apparent a

uthority to act for the owner, and the evidence brought before the j ury reflected that authority. That the hospital had a duty to the public to provide medical care does not in any manner alter the law of trespass. Appellant wasn’t seeking medical c are, he was seeking to violate the law as an act of civil disobedience. He wasn’t seeking arbitration of his billing issues, h e was seeking arrest. The State submits that wh e ther the hospital was open to law abiding citize ns wh o legitimately sought m edical assistance i s entirely irrelevant to the question of whether proper notice was given to Appellant that his re-entry to the facility for all but medical emergencies was forbidden. Appellant freely admitted that he made a g esture of a gun being aimed at Mr. Jones when he met with the

12hospital administrator on September 1 3, 2013, but stated that Mr. Jones mu s t have misunderstood his intent (RR Vol. 4, PP. 250-251). 2 Appellant also argues that he had a protectible liberty interest because the hospital was a public place and that, therefore, he h ad some type of right to a hearing and an appeal b efore the decision w as made to exc lu d e h i m from the premises. The State would first observe that, even i f this w ere true , App ellant would not h ave any type of right to go on premises and m ake threats of physical violence toward people within the premises, nor would the fact that there was a lack of such a procedure, which the State does not admit, justify violation of the written notice. Secondly, the S tate would show that there is no record evidence of any att e mp t o n Appellant’s part or b ehalf to seek redress through administrative means. In fact, the record clearly shows that Appellant’s decision was not to appeal the decision but to violate the directive. The main authority upon which Appellant relies is inapposite. Anthony v. State , 2 0 9 S.W.3d 296 (Tex.App - Texarkana 2006), involved trespass at a public park. That Court first held that a facial challenge to a statute can be m ade for the

2 Appellant made no effo rt t o e xp l a i n h is w ords, spoken to Mr. Jones in conjunction with his representation of a pistol, “Are you sure you w ant to do that? ” (RR Vol. 3, P. 94). The State would assert Appellant m ade his intent clear. 13first time o n appeal. Appellant i s not, however, making a facial challenge. He do e s n o t argue that anytime notice is given sufficient to meet th e statutory requirements for e xclusion from any property there mu st be due process protections for the a ffected individual. Instead, he is arguing that the prohibition of his particular entry onto this particul ar p iece of property, due to its public nature, must be accompanied by due proc e s s p ro te ctions so that his rights as a taxpayer may be preserved, or the evidence is insufficient to show a violation of the statute. This i s an “ as appl i e d” argument. The Anthony Court’s p ro n ouncements a s to preservation are inapplicable to this case, in whic h i t i s clearly shown that Appellant did not preserve his objections. Appellant also neglects that part of the Anthony opinion in whic h i t i s pointed out that: in a plurality de c ision of the United States Supreme Court, Justices Stevens, Ginsburg, and Souter sug ge ste d that the freedom to loiter for inno c ent purposes is a fundamental right. See Chicago v. M orales , 527 U.S
. 41, 53-54, n. 20, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (Stevens, J., joined by S o uter, J., and Ginsburg, J.) (plurality of United States Supreme Court held: "Freedom to loiter for innocent purposes i s part of t h e `liberty' protected by the Due Process Clause" and suggesting t here is fundamental right to loiter for innocent purposes). Anthony , 209 S.W.3d at 305. Anthony involved a defendant’s peaceful use of a public park, and his protectible interest in that peaceful use. A hospital, while open to the public, i s 14not a pu

blic park, in which loitering is encouraged. Any dis cussion of Appellant’s so-called liberty interest must include the fact that he was not at the fac i l ity for legitimate medical reasons, or ev en admini s trativ e re a son s, but , rath er, to threat e n, using gestures and words, those who w orked therein. He was not exercising his right to “loiter for innocent purposes.” Additionally, while Appellant suggests that there were no written policies by which he could have challenged the decision to issue the trespass notice, the record is cle ar th at there were, at least to some e xtent, procedures which might have been applicable but which were not attempted:

Q. Mr. Jones, let me rephrase. I 'm asking you a specific question. Mr. Ray had no way to appeal your decision to anyone at the Hos p ital, District Board, anywhere else, did he? A. Yes, sir. He did have an opportunity. Q. Who would he appeal it to? A. Could have been appealed to me. Could have been appealed to the Board. We have a Patient Grievance Committee. Q. Was there a written p olicy r egarding how t o appeal such a decision? A. Patient Grievance Committee. Yes, sir. (RR Vol. 3, P. 163-164). While Appellant chose to ignore this answer and concentrate on procedures specifically designed to deal with trespassers, the fact remains that Appellant di d have resort to the Patient Grievance C o mmittee but
15he chose not to use it. H e c h o s e , instead, to violate the law as an act of civil disobedience. That there was some m e thod by which Appellant could have challenged the decision to exclude him from the hospital for all but emerge n cy purposes has not been seriously challenged. Additionally, a procedural due process analysis is two-tiered. Not only must there be a determination of whether the complaining p arty has a protected liberty or property int e r e st but there i s the question of whether sufficient procedural safeguards are employed to assure the deprivation is not arbitrary. See Ex parte M

o ntgomery , 894 S.W.2d 324, 327 (Tex.Cr.App. 1995); Anthony , supra ; Univ. o

f Texas Med. Sch. at Ho u s to n v . Than , 901 S.W.2d 926, 929 (Tex. 1995), citing Logan v. Zimmerman Brush Co. , 455 U.S. 422, 428 (1982); and Board ofRegents ofState Colleges v. Roth , 408 U.S. 5 64, 5 69-570 (1972). Given the availability of a Patient Grievance Co mm ittee, and Appellant was a patient, any such liberty interest has been protected. In this regard, Appellant argues , “In this case, Appellant did absolutely nothing disruptive or illegal that would warrant his being banned from a taxpayer-funded building that is open to the public.” 3 The State would show that

3 Appellant’s Brief, P. 18. 16the exact opposite exists. Appellant entered and , durin g a discussion of a b ill which he had neglected, p ointed his fingers in a p i s tol shape at the hospital administrator and asked, “Are you sure you want to do that?” (RR Vol. 3, P. 94). This was not only disruptive, but it may well have been an illegal threat. The State would al s o s h ow that the record does not demonstrate how the warning impaired defendant's pursuit of any m edical needs. Appellant was not excluded from the hospital for all purposes. H e was merely warned that entering the hospital e xcept for e m e rg e n cy services, an undefined term which may well have included his allergy sho t s , was forbidden. Appellant was not prevented from using the hospital for those legitimate purposes and his interests in obtaining medical care was never shown to h ave b een affected. Thus, the type of liberty interest recognized in Than was not infringed upon in this case. In Yoc-H v. State , No. 07-13-00222-CR (Tex.App - Amarillo, April 28, 2 0 1 4 )(not designated for publication), the Court of Appeals entertained a du e process challenge to th e convic ti o n b a s e d on very similar allegations as in the
case at bar. Before p leading guilty the defendant raised, by p re-trial motion, the due process iss u es relating to the issuance of th e trespass notice, and a hearing
was h eld. In contrast, Appellant in the c ase at bar ma de n o ef f o rt to raise any
17c o n s titutional issues h e might have had, either at the time o f the incidents o r at the time of his trial. There is no requirement within the statute for a hearing prior to issuing a
no trespass notice, either as to private or public property. In Yo c-H , the Court assumed, arguendo , that the public nature of th e Texas Woman’s University campus p r esented a p rotectible liberty interest to go upon its property. Yoc-H , slip op. at 4. That Court relied on the presumptio n that the legislature has not acted unconstitutionally in passing statutes such as the trespass statute, and that defendant had failed to show that there was no m ethod by which he c ould appeal the decis i on. Yoc-H

, slip op. at 5 -6. The party who challenges the
c o nstitutionality of the statute on Due Process grounds has the burd e n o f demonstrating the scheme's unconstitutionality. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Cr.App. 1978); A nthony , 2 09 S.W.3d at 303. Appellant’s reliance
on cases involving innocent use of public facilities are inapposite to the facts of the c ase, which demonstrate that Appellant accessed th e facility to c onfront the Administrator, Mr. Jones, and that he threatened Jones wh il e o n the facility grounds.

18Appellant attempts to couch this case a s a constitutional challenge (his act of “civil disobedience”), but none of the i s s u e s h e raises in this Court were
s ub mitted to the jury. Appellant moved the trial court to direct a not-gui lty verdict on the b asis of his constitutional rights, citing A n t hony , supra (RR Vol. 4, PP. 151-172). He did not, h owever, reque s t th at the jury be given any instruction which would allowed it to have implemented Appellant’s claim that “the lack of a p o licy to determine who should be excluded from a public hospital violates Appellant’s procedural due process rights.” Nothing in the court’s charge on guilt-innocence would hav e allowed the jury to acquit Appellant if they believed his constitutional right to due process
was violated. Additionally, when the trial court provided Appellant the opportunity to modify the court’s charge as propo s ed , App ellant o ffered no complaints:
THE C OURT: Any objections t o the Charge on behalf of the Defendant? MR. JOHNSON: No, Your Honor. RR Vol. 4, P. 268, L. 3-5. Wh e th er Appellant’s purported constitutional challenge is considered a “facial” or “as applied challenge, the claim was w aived by Appellant’s failure to properly raise the issue in the trial court. See Karenev v. State , 281 S .W.3d 428, 19434 (Tex.Cr.App. 2009)(holding that facial challenge to constitutionality o f statute is forfeitable right that is waived i f defendant fails to raise it in trial court); and Curry v. State , 9 10 S.W.2d 490, 496 (Tex.Cr.App. 1995)(holding that an “as-appli e d c h al lenge” was waived because the defendant did not specifically object at trial). Further, to the extent that the issue might be interpreted as being that the trial court should have granted Appellant’s motion for a directed verdict, the case law makes very clear that a challenge to the denial o f a motion for directed verdict must be treated as a challenge to the sufficiency of the evidence. See Williams v. State , 937 S.W.2d 4 79, 482 (Tex.Cr.App. 1996); Madden v. State , 799 S.W.2d 683, 686 (Tex.Cr.App. 1990). In this case, the j ury was asked, as required by Roberson , Johnson , Gollihar , and Malik , whether

. . . on or about the 3rd day of October 2013, in McCulloch County, Texas, the defendant, Gary Don Ray, did then and there intentionally and knowingly enter a habitation, namely Heart o f Texas Healthcare System, Brady, Texas 76825, without the effective consent of the said Tim Jones, a c tin g for the Heart of Texas Healthcare System, and the said defendant had notice that the entry was forbidden . . .. That was the only question the jury was required to answer, and the only things the State n eeded to prove. All other questions hav e b e en waived and are not relevant to the sole issue b efore this Court, wh i ch is whether the evidence to sustain the conviction is sufficient. 20

### Conclusion

Appellant admitted each and every element of the offense. A ddi ti onally, the S tate presented independent evidence as to each e lement of the offense. There was, therefore, sufficient evidence upon which the jury, as a rational trier of fact, could rely in finding all of the required elements of the offense charged. The evidence is sufficient, and the conviction should be affirmed. 

### Prayer WHEREFORE, PREM I SES CONSIDERED, the undersigned, on behalf of the State of T exas, respectfully prays that this Honorable Court will review this brief and upon submission of the case to the Court will a ffirm the judgment and conviction of the court below. Respectfully submitted, /s/ Tonya Spaeth Ahlschwede Tonya Spaeth Ahlschwede District Attorney, 452nd District Court Post Office Box 635 Mason, Texas 76856 eMail: tsa@452da.net Tel: 325-347-8400 Fax: 325-347-8404 State Bar Card No. 24025656 Attorney for the State of Texas

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### Certificate of Compliance and D elivery

This is to certify that: (1) this document, created using WordPerfectTM X7 software, contains 4511 words, excluding those items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies w i th R ules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on March 20, 2015, a true and correct copy of the above and foregoing “ State’s B rief ”w a s transmitted via th e eService function on the State's eFiling portal, to M. Patrick Maguire (mpmlaw@ktc.com), c ounsel of record for the Appellant. /s/ Tonya Spaeth Ahlschwede Tonya Spaeth Ahlschwede

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