in Re Wilson E. Brown, Relator

NO. 07-08-0231-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 28, 2008

______________________________

IN RE WILSON E. BROWN, RELATOR

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

          By this original proceeding, Relator, Wilson E. Brown, an inmate proceeding in forma pauperis, seeks a writ of mandamus to compel the Honorable Shane Hadaway, Judge of the 39th Judicial District Court, to set aside his conviction for aggravated sexual assault of a child, which he alleges is a void conviction. We deny Relator’s request.

          This Court’s mandamus jurisdiction is limited. We have authority to issue a writ of mandamus, agreeable to the principles of law regulating those writs, against a judge of a district or county court in our district. See Tex. Gov’t Code Ann. § 22.221(b)(1) (Vernon 2004).

 

Background

          In 1989, Relator was indicted in cause number 729 for intentionally and knowingly causing the anus of a child younger than fourteen years of age and not his spouse “to contact” his sexual organ, and in cause number 730 for intentionally and knowingly causing the sexual organ of a child younger than fourteen years of age and not his spouse “to contact and penetrate” his sexual organ. According to the documents provided by Relator, he entered into a plea bargain in cause number 729 for thirty years confinement and waived his right to appeal.

          The certified copies of the indictments provided by Relator reflect that, when tri-folded for envelope style filing, the blanks provided for entry of the cause numbers on the back side of the respective indictments have 729 and 730 lined through and interchanged. In other words, cause number 729 is crossed out and replaced with cause number 730 and vice versa. Due to this interlineation, Relator complains that he was not lawfully convicted for the offense to which he pleaded guilty in cause number 729 as originally completed when returned by the Kent County Grand Jury on March 6, 1989. According to Relator’s documents, he sought relief from the Court of Criminal Appeals in 1991 by writ of habeas corpus, which was denied in 1992.

          In March 2008, Relator filed in the convicting court a “Motion for Trial Court to Enter Nunc Pro Tunc Order Setting Aside Void Conviction.” He alleges that his conviction in cause number 729 is void and that he is entitled to relief by having his conviction in that cause set aside. By letter ruling dated April 2, 2008, the trial court denied Relator’s motion.

Standard of Review

          “Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding), quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). To show entitlement to mandamus relief, a relator must (1) show that he has no adequate remedy at law to redress the alleged harm and (2) the act sought to be compelled is ministerial and does not involve a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex.Crim.App. 2007). An act is ministerial if the relator has “a clear right to the relief sought”–it must be “clear and indisputable” such that its merits are “beyond dispute” with “nothing left to the exercise of discretion or judgment.” State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex.Crim.App. 2003), quoting Hill v. Fifth Court of Appeals, 34 S.W.3d 924, 927-28 (Tex.Crim.App. 2001).

 

 

Analysis

I. No adequate remedy at law.

          A party may not appeal a trial court’s denial of a motion for judgment nunc pro tunc because it does not arise from a final judgment. See Shadowbrook Apartments v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990). Thus, Relator has demonstrated that he has no adequate remedy at law by normal appeal.

II. A ministerial act.

          The trial court may correct clerical errors made in a judgment at any time by using a judgment nunc pro tunc. State v. Bates, 889 S.W.2d 306, 309 (Tex.Crim.App. 1994). The trial court cannot, however, correct a judicial error made in rendering a final judgment. Id. Relator has not provided a copy of his judgment of conviction with the documents provided in support of his Petition for Writ of Mandamus to determine whether it contains a clerical error. See Tex. R. App. P. 52.3(j)(1)(A).

          An act is ministerial where the law clearly spells out the duty to be performed by an official and does so with such certainty that nothing is left to the exercise of discretion or judgment. Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Crim.App. 1981). Relator has not demonstrated that the trial court had no discretion but to grant his motion. His complaint that his conviction should have been set aside by the trial court as void is outside the scope of a judgment nunc pro tunc. He sought to have the trial court correct a judicial error which may not be accomplished by judgment nunc pro tunc. The record before us does not show that the trial court failed to perform a ministerial act.

          Additionally, Relator’s dissatisfaction with the trial court’s denial of his motion is not properly addressed in the context of a mandamus proceeding. See generally Polaris Inv. Management Corp. v. Abascal, 892 S.W.2d 860, 861-62 (Tex. 1995). A particular ruling on a motion is generally discretionary for which mandamus will not lie. We conclude that Relator has not demonstrated his entitlement to mandamus relief.

          Consequently, the request for mandamus relief is denied.

 

                                                                           Patrick A. Pirtle

                                                                                 Justice

     

as written guidelines. In determining whether a business is sexually oriented, "[w]e look for several things. We look at the - the particular things that they have for sale or for rent, merchandise. The clientele, we look for clientele that's going into the business. We look for - we also look in the area of have they - did they have a sexually oriented business permit in the past. Things such as that." Smith said the police are "looking for a good faith effort [of] what the business is actually . . . doing." He admitted that the officers would make an "eyeball estimate" about what is being sold. Calculating a store's revenue from sexually oriented material as opposed to other merchandise would be very hard to do, but that it might be done in the case of a store that is a "close call." Smith had visited All Star "a couple of times" and, in his opinion, it was clearly a sexually oriented business and "wouldn't be a close call."

Chapter 243 of the Local Government Code empowers cities to regulate sexually oriented businesses. In relevant part, it defines a sexually oriented business as:

. . .a sex parlor, nude studio, modeling studio, love parlor, adult bookstore, adult movie theater, adult video arcade, adult movie arcade, adult video store, 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 any other items intended to provide sexual stimulation or sexual gratification to the customer.

Tex. Local Gov't Code Ann. § 243.002 (Vernon 1999).

In carrying out this authority, the city enacted its ordinance number 97-75. The ordinance defines "manager," "sexually oriented enterprise," and "adult bookstore" as follows:

Manager. Any person who supervises, directs or manages any employee of an enterprise or any other person who conducts any business in an enterprise with respect to any activity conducted on the premises of the enterprise, including any "on-site manager."

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

Enterprise. An adult bookstore, adult cabaret, adult encounter parlor, adult lounge, adult modeling studio, adult movie theatre or any establishment whose primary business is the offering of a service or the selling, renting or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to its customers, and which is distinguished by or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

Adult Bookstore. An establishment whose primary business is the offering to customers of books, magazines, films, or videotapes (whether for viewing off-premises or on-premises by use of motion picture machines or other image-producing devices), periodicals, or other printed or pictorial materials which are intended to provide sexual stimulation or sexual gratification to such customers, and which are distinguished by or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities, or specified anatomical areas.

Houston City Ordinance No. 97-75 § 28-121.

Adult arcade . . . any premises that is subject to regulation under Chapter 243 of the Local Government Code, as amended, to which members of the public or members of any club, group or association are admitted and permitted to use one or more arcade devices.

Arcade device . . . any coin- or slug-operated or electronically or mechanically controlled machine or device that dispenses or effectuates the dispensing of entertainment, that is intended for the viewing of five (5) or fewer persons in exchange for any payment of any consideration.

Entertainment shall mean:

1) Any live exhibition, display or performance; or

2) Any still picture(s) or movie picture(s), whether mechanically, electrically or electronically displayed; or

3) Any combination 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 sustain a holding that All Star was an adult bookstore, and that appellant served as a manager. In his second issue, appellant argues the evidence is insufficient to prove All Star was an adult arcade or that appellant acted as an operator of an adult arcade. Because these issues are so closely related, we will consider them together. The standards governing our review of legal and factual sufficiency challenges are now so well established as to be axiomatic and it is not necessary to reiterate them here. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), and Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996). Suffice it to say that we must first determine whether the evidence is legally sufficient and, if it is not, render a judgment of acquittal. Id. at 133. If the evidence is legally sufficient, we must then determine if it is factually sufficient when measured by the standard explicated in Clewis. Id.

The evidence which we have set out in some detail is ample to sustain the trial judge's finding that All Star is both an adult bookstore and an adult arcade. The question then presented is whether the evidence is sufficient to sustain a finding that appellant was acting as a manager/operator of All Star within the purview of the ordinance. The evidence is undisputed that at the time in question here, appellant was the only employee present and was operating the cash register and the electronic control admitting patrons to the arcade.

The very recent decision of the 14^th Court of Appeals in Pedraza v. State, 34 S.W.2d 697 (Tex.App.-Houston [14^th Dist.] 2000, no pet.) is instructive in interpreting the ordinance. In that case, the court was also presented with the question of whether the evidence was sufficient to sustain a finding that the appellant was an "operator" of an adult arcade. The court of appeals noted the trial evidence concerning Pedraza was 1) he was the only person working behind the counter, and 2) he was "in charge" of the arcade while [the police officer] was there. Id. at 700.

En route to reversing the conviction, the appellate court viewed the ordinance as a whole and, in particular, the detailed requirements the "operator" must comply with in order to obtain a permit. Id. at 699. After doing so, it commented that it was clear that in the ordinance, the city intended an operator to mean more than a clerk or an employee who simply minds the store, and concluded that the trial evidence was legally insufficient to show that Pedraza possessed "managerial control" such that he was an operator as that term is defined in the ordinance and was really nothing "more than a mere clerk." Id. at 700.

Here, the evidence was very similar to that before the Pedraza court. As was the case in Pedraza, we can conclude that appellant was only a clerk who minded the store and whose responsibilities were not sufficient make him a "manager" as the term is defined in the ordinance. ⁽¹⁾ Appellant's first two issues must be, and are, sustained. That action nullifies the necessity for a discussion of appellant's remaining two issues.

Accordingly, the judgments of the trial court are reversed, and judgment rendered acquitting appellant of the offenses of which he was convicted. Tex. R. App. P. 43.2(c).

John T. Boyd

Chief Justice

Do not publish.

1. As did the Pedraza court, we note that the ordinance does place a duty on employees and agents of the arcade to keep the view unobstructed. However, the State did not charge appellant as an employee or agent and that question is not before us.