Ronald Elan Martin v. State , 2002 Tex. App. LEXIS 2576 ( 2002 )

RONALD ELAN MARTIN V. STATE OF TEXAS NO. 07-01-0500-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

APRIL 9, 2002

______________________________



RONALD ELAN MARTIN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 47^TH DISTRICT COURT OF POTTER COUNTY;

NO. 29,389-A; HONORABLE DAVID GLEASON, JUDGE

_______________________________

Before QUINN and REAVIS and JOHNSON, JJ.

On December 17, 2001, a copy of a Notice of Appeal in cause No. 29,389-A in the 47th District Court of Potter County, Texas (the trial court), was filed with the clerk of this court (the appellate clerk). The document filed gives notice that Ronald Elan Martin, appearing pro se, desires to appeal from a "Motion to Compel Enforcement of Court Acceptance of Plea Bargain" which the Notice of Appeal alleges was filed on November 16, 2001. On January 7, 2002, a docketing statement was filed with the appellate clerk which sets out that the appeal is from "Motion to Compel Plea Agreement," does not set out the date of any order from which appeal is taken, does not indicate whether any order from which appeal is taken disposes of all parties and issues, and does not indicate that appellant has filed an affidavit of indigency.

By letter dated January 7, 2002, the District Clerk of Potter County (the trial clerk) advised the appellate clerk that (1) no order had been filed as to the "Motion to Compel Enforcement of Court Acceptance of Plea Bargain," and (2) the trial clerk had not received either an order from the trial court to prepare a record or payment from appellant for preparation of a record. An extension of time was granted for filing the clerk's record until February 14, 2002. By letter dated February 13, 2002, the trial clerk advised the appellate clerk that the trial court had not entered an order directing the preparation of a record, appellant had not made any payments for preparation of a record, appellant had not filed an affidavit of indigency, and that a clerk's record was not being forwarded to the appellate clerk. The clerk's record has not been filed.

By letter dated February 21, 2002, appellant and the State were notified that further proceedings in the appeal had been abated pending consideration by this court of its jurisdiction over the appeal, that the court would consider its jurisdiction over the appeal on or after March 25, 2002, and that any matters the parties desired this court to consider on the question of appellate jurisdiction should be submitted on or before March 22, 2002. Appellant filed a brief on March 22, 2002, addressing the jurisdiction issue.

Appellant's brief affirms that his notice of appeal relates to a motion pending in the trial court but on which the trial court has not acted. He does not assert via his brief, his docketing statement or his notice of appeal that he is appealing from the judgment of conviction or an order.

In a criminal case, appeal is perfected by timely filing a notice of appeal. Tex. R. App. P. 25.2(a). ⁽¹⁾ The notice of appeal must be in writing and must contain the necessary jurisdictional allegations. TRAP 25.2(b); State v. Riewe, 13 S.W.3d 408, 410 (Tex.Crim.App. 2000). TRAP 25.2(b) provides that notice of appeal is sufficient if the notice shows the party's desire to appeal from "the judgment or other appealable order."

An untimely notice of appeal or a notice of appeal which does not contain jurisdictional assertions will not invoke the jurisdiction of the court of appeals. See Riewe, 13 S.W.3d at 411. Unless the jurisdiction of the appellate court is invoked, the appellate court has no jurisdiction over the appeal and must dismiss the matter. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998); Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996).

Appellant's notice of appeal does not show that appellant desires to appeal from either a judgment or an order. The form of appellant's notice of appeal is not sufficient to

invoke our appellate jurisdiction. Accordingly, we dismiss the appeal for want of jurisdiction.

Phil Johnson

Justice

Do not publish.

1. Further reference to the Rules of Appellate Procedure will be by referencing "TRAP _."

exual encounter center" encompasses, among other things, "a business or commercial enterprise that . . . offers for any form of consideration . . . activities between male and female persons . . . when one or more of the persons is in a state of nudity or is semi-nude . . . ." Id. §2(s). According to the record, Xoticas is "a nightclub which features . . . female performers" dancing topless but with "covered nipples" (while the other portions of the breast remain uncovered) and "bikini bottoms." Those indicia depict both live entertainment intended to provide sexual stimulation and activities between males and females with one being semi-nude. Consequently, evidence exists supporting the trial court's determination that Xoticas is a sexually oriented business, irrespective of the definition of "establishment."

Issue Two - Constitutionality

In his second issue, Smartt asserts that the ordinance is unconstitutional because 1) its predecessor was found unconstitutional by another court and 2) it abridges First Amendment protections. We again overrule the issue.

Regarding the purported unconstitutionality of the current ordinance due to the unconstitutionality of its predecessor, we deem the argument illogical. Simply put, the two differ. Being different, it does not logically follow that because the first was bad, the second is also bad. More importantly, Smartt merely glosses over, rather than explains, why he believes the new law suffers from the same defects as the old. This alone is fatal to the argument because he is obligated to explain his contention. He cannot leave it up to us to develop it. Double Ace, Inc. v. Pope, 190 S.W.3d 18, 29 (Tex. App.-Amarillo 2005, no pet.).

Regarding the purported violation of his First Amendment rights, he believes not only that the ordinance is an invalid attempt at regulating the time, place, and manner of sexually oriented businesses but also that it is not content neutral. We address the latter contention first and conclude that the ordinance is content neutral, as that term has come to be defined. Both state and federal precedent has deigned to place a "content neutral" moniker on such laws when they can be deemed as simply regulating the time, place, and manner of the speech or activity. See e.g., City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 106 S. Ct. 925, 928, 89 L. Ed. 2d 29 (1986); Smith v. State, 866 S.W.2d 760, 763-64 (Tex. App.-Houston [1^st Dist.] 1993, pet. ref'd). So in cases involving the zoning of sexually oriented businesses, the focus lies not upon the nature of the activity but on the government's interest in regulating the secondary effects emanating from the activity and the time, place and manner of the restrictions implemented. Smith v. State, 866 S.W.2d at 763-64. With that said, we turn to the other aspect of Smartt's contention.

That a municipality has a substantial interest in preserving the quality of urban life is beyond dispute. Smith v. State, 866 S.W.2d at 764. Regulating the location of sexually oriented businesses serves that interest. Id. Next, the manner in which the ordinance regulates the activity is acceptable for it does not ban the activity in its entirety. It simply regulates the location at which it can be conducted. And, restrictions limiting the location to distances 1000 feet from churches and areas zoned residential have been held constitutional. See SWZ, Inc. v. Board of Adjustment, 985 S.W.2d 268, 270-71 (Tex. App.-Fort Worth 1999, pet. denied) (1000 feet); Lindsay v. Papageorgiou, 751 S.W.2d 544, 550 (Tex. App.-Houston [1^st Dist.] 1988, writ denied) (1500 feet).

Finally, Smartt believes aspects of the ordinance are "overly broad" and therefore unconstitutional. The provision at issue is that referring to a "commercial enterprise," and Smartt suggests that the constitutionality of the provision was "specifically questioned in" a prior opinion rendered by the Fourth Court of Appeals in a case involving Smartt and various Webb County officials. See K. Smartt Invs., Inc. v. Martinez, No.04-01-00482-CV, 2002 Tex. App. Lexis 9234 (Tex. App.-San Antonio December 31, 2002, no pet.). Yet, we find nothing in the opinion suggesting that the phrase was unconstitutionally broad. Rather, the court mentioned it only in assessing whether the activities occurring within the establishment fell within the definition of an "adult cabaret." It said nothing about the words being overly broad or unconstitutional. So, to the extent that the argument now urged is founded upon what the San Antonio Court of Appeals wrote in its Smartt opinion, we find his contention is baseless.

Issue Three - Adequate Remedy at Law

Lastly, Smartt contends in his third issue that Laredo was not entitled to an injunction since Laredo had an adequate legal remedy, namely the ability to criminally prosecute and fine offenders. We overrule the issue for the reason that both statute, Tex. Local Gov. Code Ann. §243.010(a) (Vernon 2005) and caselaw, Schleuter v. City of Fort Worth, 947 S.W.2d 920, 932 (Tex. App.-Fort Worth 1997, writ denied), permit cities to seek injunctions to stop sexually oriented businesses from violating ordinances like those at bar. So, the issue is overruled.

The issues raised by Smartt do not evince an abuse of discretion on the part of the trial court. Accordingly, we affirm the judgment.

Brian Quinn

Chief Justice