Messina v. State

OVARD, Justice,

concurring.

I respectfully disagree with the majority’s use of stare decisis to decide this case. I do not believe we decided the constitutionality of the “state of nudity” definition in MJR’s Fare of Dallas, Inc. v. City of Dallas, 792 S.W.2d 569 (Tex.App.—Dallas 1990, writ denied). However, for the following reasons, I concur in the result of affirming the trial court’s judgment.

APPLICABLE LAW

A. Statutory Analysis Under the Equal Rights Amendment

Sex shall not deny or abridge equality under the law. See Tex. Const, art. I, § 3A. However, we do not review sex-based classifications under a standard that would automatically invalidate gender-based distinctions. In re McLean, 725 S.W.2d 696, 698 (Tex.1987). Thus, under the Texas Equal Rights Amendment, courts must strictly scrutinize any sex-based classification. See id.; Mercer v. Board of Trustees, 538 S.W.2d 201, 206 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref'd n.r.e.).

Strict judicial scrutiny requires a two-pronged analysis. First, we determine whether the law discriminates against one sex based solely on gender. Sex-based distinctions are legally permissible if physical characteristics require those distinctions. See MJR, 792 S.W.2d at 575; Mercer, 538 S.W.2d at 206. Neither the Equal Rights Amendment nor the rights it establishes require the courts to construe it in a way that denies sexual or reproductive differences between the sexes. Mercer, 538 S.W.2d at 206.

Second, if we ascertain that the law is discriminatory, we then determine whether the State has any other means to protect its compelling interest. See MJR, 792 S.W.2d at 575. The discrimination can survive judicial scrutiny only if no other means exist. See MJR, 792 S.W.2d at 575; Mercer, 538 S.W.2d at 206.

The party challenging the law has the initial burden of proof. He must show the law discriminates based solely on gender. See MJR, 792 S.W.2d at 575 (by failing to rebut proof of the physiological and sexual distinctions between male and female breasts, MJR failed to meet the first prong of the strict judicial scrutiny inquiry). To show the law discriminates based solely on gender, the challenging party must rebut any evidence that physical characteristics require the distinctions. Id.; Mercer, 538 S.W.2d at 206.

The burden of proof then shifts to the proponent of the law. The proponent can satisfy his burden by showing that no other means exist to protect the state’s compelling interest. See McLean, 725 S.W.2d at 698; MJR, 792 S.W.2d at 575; Mercer, 538 S.W.2d at 206. If the proponent cannot satisfy his burden of proof, the discrimination cannot survive judicial scrutiny. See MJR, 792 S.W.2d at 575; Mercer, 538 S.W.2d at 206.

B. Williams and MJR

To support his contentions, Messina relies on Williams v. City of Fort Worth, 782 S.W.2d 290 (Tex.App.—Fort Worth 1989, writ denied). The majority states that the Williams court held it could not take judicial knowledge of the physiological and sexual differences between male and female breasts. In actuality, the Williams court held:

Our court is not authorized, however, to take judicial notice of the concept that the breasts of female topless dancers, unlike their male counterparts, are commonly associated with sexual arousal.

Williams, 782 S.W.2d at 297. The court reached this conclusion because “[s]uch a viewpoint might be subject to reasonable dispute, depending on the sex and sexual orientation of the viewer.” Id. Because the city failed to adduce any evidence that physical differences required the distinction, the Williams court held, as a matter of law, that the ordinance discriminated based solely on gender. Id. at 296-97. The city also failed to offer any evidence to justify the discrimi*183nation. Id. at 297. The Williams court held that ordinance’s “state of nudity” definition unconstitutional and void. Id. at 299.

The City maintains that MJR, not Williams, should control this ease. In MJR, the City introduced undisputed expert testimony that: (1) physiological and sexual distinctions exist between male and female breasts; (2) female breasts differ both internally and externally from male breasts; and (3) the female breast, not the male breast, is a mammary gland. MJR, 792 S.W.2d at 575. We held that MJR did not meet its initial burden of proof. Id.

C. Judicial Notice

A judicially noticed fact must be one not subject to reasonable dispute. Tex.R.CRIm. Evid. 201(b); Tex.R.Civ.Evid. 201(b). A fact not subject to reasonable dispute is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. TexR.Crim.Evid. 201(b); TexR.Civ.Evid. 201(b). A court may take judicial notice whether or not a party requests it to do so. TexR.CRIM.Evid. 201(c); Tex.R.Civ.Evid. 201(c). A court may take judicial notice at any stage of the proceedings. Tex.R.Crim.Evid. 201(f); TexR.Civ. Evid. 201(f).

APPLICATION OF THE LAW TO THE FACTS

A. Judicial Notice and Williams

In Williams, the court determined it could not take judicial notice that female breasts, and not male breasts, were commonly associated with sexual arousal. Williams, 782 S.W.2d at 297. In this case, the county criminal court of appeals determined the municipal court took judicial notice that female and male breasts are physiologically and sexually different. The facts subject to judicial notice in this case differ from those in Williams. See id. Therefore, I disagree with Messina’s contention that Williams controls the facts of this case.

Even if Williams were not distinguishable from this case, I would not agree with that court’s analysis that it could not take judicial notice. The Williams court decided it could not judicially notice the distinctive “common association” because it might be subject to dispute depending on the sex and sexual orientation of the viewer. A fact is not subject to reasonable dispute if it is generally known within the court’s territorial limits. TexR.Civ.Evid. 201(a); Tex.R.Crim.Evid. 201(a).

A person can know that an association is commonly made without himself making that association. Thus, a common association is not rendered uncommon because some people might not themselves make that association.1 Nor is a generally known association removed from general knowledge because certain people might not themselves make that association. A court has wide discretion as to what facts may be judicially noticed, within the limits of common sense and common knowledge. James v. State, 546 S.W.2d 306, 310 (Tex.Crim.App.1977). For these reasons, I do not agree with the Williams court that it could not take judicial notice of the common association of female breasts and sexual arousal simply because that association might differ depending on the sex and sexual orientation of the viewer.

B. Stare Decisis and MJR

The majority states, ‘We are bound by this Court’s prior determination in MJR that the definition does not violate the Equal Rights Amendment.” I do not agree that this Court made that determination in MJR.

In MJR, the City introduced expert testimony that: (1) physiological and sexual distinctions exist between the male and female breast; (2) female breasts differ both internally and externally from male breasts; and (3) the female breast, but not the male breast, is a mammary gland. MJR, 792 S.W.2d at 575. MJR did not offer any evidence to dispute this testimony. Id. The *184City argued on appeal that MJR, therefore, failed to meet its initial burden of proof. Id. We wrote:

Because we agree with the City of Dallas that MJR failed to meet the first prong of the strict judicial scrutiny inquiry, we overrule its fourth point of error.

Id.

We held that MJR had not met the first prong of the two-pronged inquiry. We did not hold the statute was constitutional because we did not reach that point in the inquiry. Furthermore, we did not hold that physiological and sexual distinctions exist between male and female breasts. As a result, the doctrine of stare decisis does not support a holding in this ease that the statute does not violate the Equal Rights Amendment.

C. Judicial Notice and the Trial

In his motion to quash the charging instrument, Messina claimed the “state of nudity” definition discriminates against females solely on the basis of gender. The municipal court denied the motion. The county criminal court of appeals found the municipal court took judicial notice of the common-knowledge, common-sense fact that male and female breasts are physiologically and sexually different.

It is well settled in Texas that a trial court has wide discretion to determine which facts may be judicially noticed in a civil case. James, 646 S.W.2d at 310. Within the limits of common sense and common knowledge, that rule is also applicable in criminal trials. Id.; compare Tex.R.CRIM.Evid. 201 with Tex. R.Civ.Evid. 201. A court of appeals may presume that the trial court, in support of its judgment, took judicial notice of the fact mentioned above, even though the trial court was not asked to do so and did not formally announce that it had done so.2 Bloom v. Bloom, 767 S.W.2d 468, 471 (Tex.App.—San Antonio 1989, writ denied) (usual and customary fees and contents of the case file); Vahlsing, Inc. v. Missouri Pac. & Co., 563 S.W.2d 669, 674 (Tex.Civ.App.—Corpus Christi 1978, no writ) (events that have previously taken place in the case on trial); Texas Sec. Corp. v. Peters, 463 S.W.2d 263, 265 (Tex.Civ.App.—Fort Worth 1971, no writ) (records of the district court and facts shown by court records of ease on trial); Buckaloo Trucking Co. v. Johnson, 409 S.W.2d 911, 913 (Tex.Civ.App.—Corpus Christi 1966, no writ) (various geographic facts); see Baker v. Kunzman, 873 S.W.2d 753, 756 (Tex.App.—Tyler 1994, writ denied) (usual and customary fees and contents of the case file).

Messina did not provide evidence to rebut the common-knowledge, common-sense fact that male and female breasts differ physiologically and sexually. Thus, he failed to meet the first prong of the strict judicial scrutiny inquiry. See MJR, 792 S.W.2d at 575. Consequently, I would overrule Messina’s sole point of error and affirm the trial court’s judgment.

. In contrast, an association could not be considered universal if certain people might not themselves make that association.

. On appeal to this Court, Messina chose to file his county criminal court of appeals brief in accordance with section 30.404 of the Texas Government Code. That brief did not contain any argument on, mention of, or reference to the municipal court’s taking judicial notice. The brief did not explain how the taking of judicial notice constituted error. Section 30.404 provides that the record and brief on appeal in the appellate court constitute the record and briefs on appeal to the court of appeals, unless the rules of the court of criminal appeals provide otherwise. Tex.Gov't Code Ann. § 30.404(1) (Vernon 1988). Rule 74 of the Texas Rules of Appellate Procedure provides that a brief to the court of appeals shall contain, among other things: (1) a statement of the points upon which the appeal is predicated, and (2) a discussion of the facts and authorities relied upon to maintain each point. TexR.App.P. 74(d), (f). Furthermore, rule 74 provides for amendment or supplementation of briefs when justice requires. Tex.R.App.P. 74(o). Messina’s choice to rely solely on the brief from the county criminal court of appeals limits our review to the issues in that brief. Thus, Messina presents this Court no error to review regarding the municipal court's taking judicial notice.