author: HOLCOMB, J., JOHNSON, J., KELLER, P.J.,

text:
    Samuel SCOTT, Appellant, v. The STATE of Texas.
    Nos. PD-1069-09, PD-1070-09.
    Court of Criminal Appeals of Texas.
    Oct. 6, 2010.

      Donald H. Flanary, III, San Antonio, for Appellant.
    Kevin Patrick Yeary, Asst. Crim. D.A., San Antonio, Jeffrey L. Van Horn, State’s Attorney, Austin, for State.
   HOLCOMB, J.,

delivered the opinion of the Court,

in which PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined.

The court of appeals held that two subsections of our harassment statute, Texas Penal Code § 42.07, were unconstitutionally vague on their face. We reverse.

On April 24, 2006, in Bexar County, Samuel Scott was charged by information with one count of harassment, a misdemeanor offense. The information alleged, in relevant part, that:

“on or about the 5th Day of December, 2005, Samuel Scott, hereinafter referred to as defendant, with intent to harass, annoy, alarm, abuse, torment, and embarrass Yvette Scott, hereinafter referred to as complainant, did make repeated communications to the complainant, to wit: telephone calls, in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass and offend the complainant.”

On July 11, 2006, again in Bexar County, Scott was again charged by information with harassment. The information alleged, in relevant part, that:

“on or about the 12th Day of March, 2006, Samuel Scott, hereinafter referred to as defendant, with intent to harass, annoy, alarm, abuse, torment, and embarrass Yvette Scott, hereinafter referred to as complainant, did make repeated telephone communications to the complainant in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass and offend the complainant, to wit: the defendant called the complainant repeatedly by telephone while intoxicated, late at night, leaving abusive and harassing voice mail messages.”

Sometime thereafter (the record does not reveal the exact date), Scott filed a motion to quash the two charging instruments. In his motion, Scott, citing both the First and Fourteenth Amendments to the United States Constitution, argued that Texas Penal Code § 42.07, the statute under which he was charged, was unconstitutional on its face because it was both unduly vague and overbroad. He argued further that the statute’s vagueness and overbreadth threatened “to induce individuals to forgo [their] First Amendment rights [to free speech] for fear of violating an unclear law.” Scott, citing our decision in Long v. State, 931 S.W.2d 285, 288 (Tex.Crim.App.1996), noted that “when [as here] a vagueness challenge involves First Amendment considerations, a criminal law may be held facially invalid even though it may not be unconstitutional as applied to the defendant’s conduct.” Notably, Scott did not argue that § 42.07 was vague as applied to his conduct, i.e., that the statute failed to give him a reasonable opportunity to know that the conduct for which he was charged was prohibited.

On June 25, 2008, the trial court held a hearing on Scott’s motion to quash. Neither Scott nor the State presented any evidence at that hearing. Just after the start of the hearing, Scott explained to the trial court that he believed that the April 24, 2006 information had been brought under Texas Penal Code § 42.07(a)(4), whereas he believed that the July 11, 2006 information had been brought under § 42.07(a)(7). Toward the end of the hearing, Scott, when queried on the matter by the trial court, appeared to concede that both charging instruments had been brought under § 42.07(a)(4).

As for the substance of his motion to quash, Scott reiterated the arguments that he had made in his written motion. In addition, he argued that: (1) § 42.07(a)(4) and (a)(7) were both unconstitutionally vague and overbroad on their face because the terms “annoy” and “alarm” included in those statutory subsections were “inherently vague”; (2) neither statutory subsection clearly indicated “whose sensibilities must be offended”; (8) neither statutory subsection clearly indicated “the standard by which the [prohibited] conduct [was] to be assessed”; and (4) the specific intent elements included in the statutory subsections did not save them from vagueness.

The State, in response, did not address the merits of Scott’s arguments. Instead, the State argued simply that “[t]here is no court that has any jurisdiction over this specific [trial] court that has ruled that specific statute to be unconstitutionally vague.”

At the conclusion of the hearing, the trial court denied Scott’s motion to quash. Shortly thereafter, Scott pled nolo conten-dere, pursuant to a plea bargain, to each harassment charge. The trial court then assessed Scott’s punishment in each case at incarceration for two days and a $50 fine.

On direct appeal, Scott reiterated the arguments that he had made in the trial court. In addition, he argued, for the first time, that: (1) § 42.07(a)(4) and (a)(7) were both unconstitutionally vague as applied to his conduct (although he failed to explain how they were unconstitutionally vague as applied to his conduct); and (2) § 42.07(a)(4) and (a)(7) were both unconstitutionally vague and overbroad because the terms “abuse,” “torment,” “embarrass,” and “repeated” included in those statutory subsections were “inherently vague.”

The State, in response to Scott’s arguments, argued that: (1) both charging instruments tracked the language of § 42.07(a)(4) and charged Scott under that statutory subsection; (2) § 42.07(a)(4) was neither unconstitutionally vague nor over-broad; (3) § 42.07(a)(4) did not implicate the free-speech guarantee of the First Amendment; and (4) “the fact that [Scott] chose [in the trial court] not to challenge the statute as applied to [his conduct] constitute[d] a failure to preserve [that] issue for appellate review.”

The court of appeals agreed with Scott’s arguments, reversed the trial court’s judgments, and rendered judgments of acquittal. Scott v. State, 298 S.W.3d 264 (Tex.App.-San Antonio 2009). More specifically, the court of appeals held that: (1) the July 11, 2006 information, which involved allegations of harassing voice-mail messages, could have been brought under § 42.07(a)(7) because voice mail messages fell within the statutory definition of “electronic communication”; (2) § 42.07(a)(4) and (a)(7) both implicated the free speech guarantee of the First Amendment; and (3) the terms “annoy,” “alarm,” “abuse,” “torment,” “embarrass,” and “repeated” contained in the two statutory subsections were all unconstitutionally vague.

We granted the State’s petition for discretionary review, which raised six grounds, in order to determine whether the court of appeals erred in its analysis. See Tex.R.App. Proc. 66.3(d).

We turn first to the State’s fourth ground for review, in which the State argues that the court of appeals erred in addressing the constitutionality of § 42.07(a)(7). The State argues that, contrary to the court of appeals’s conclusion, the July 11, 2006 information against Scott charged him under § 42.07(a)(4), not (a)(7).

A careful reading of the July 11, 2006 information, which we quoted earlier, reveals that it tracks the language of § 42.07(a)(4), which we also quoted earlier, but not the language of (a)(7). Furthermore, the text of (a)(4) suggests that it covers ordinary voice (and therefore voice mail) communication involving an ordinary telephone, whereas the text of (a)(7) suggests that it covers various types of non-telephonic, “electronic” communication, e.g., e-mail, instant message, etc. Therefore, we conclude that the July 11, 2006 information against Scott was brought under § 42.07(a)(4) and that the court of appeals erred in addressing the constitutionality of § 42.07(a)(7). We sustain the State’s fourth ground for review.

We turn next to the State’s second ground for review, in which the State argues that the court of appeals erred in concluding that § 42.07(a)(4) implicated the free-speech guarantee of the First Amendment. The question of whether the statutory subsection implicates the free-speech guarantee is important in the cases before us, because if the statutory subsection does implicate the free-speech guarantee, then Scott, in making his vagueness challenge, is relieved of the usual requirement of showing that the statutory subsection was unduly vague as applied to his conduct. See footnote three, supra.

To answer the question of whether § 42.07(a)(4) implicates the free-speech guarantee of the First Amendment, we must first determine the protection afforded by the free-speech guarantee, and then we must determine the meaning of § 42.07(a)(4). The First Amendment provides, in relevant part, that “Congress shall make no law ... abridging the freedom of speech.” This guarantee of free speech, which was made applicable to the various states by the Due Process Clause of the Fourteenth Amendment, Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), generally protects the free communication and receipt of ideas, opinions, and information, Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 390, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). In a nation of ordered liberty, however, the guarantee of free speech cannot be absolute. The State may lawfully proscribe communicative conduct (i.e., the communication of ideas, opinions, and information) that invades the substantial privacy interests of another in an essentially intolerable manner. Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).

Turning to the meaning of § 42.07(a)(4), we find that, given the allegations in the charging instruments, the relevant portion of (a)(4) reads as follows: “A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he ... makes repeated telephone communications ... in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.” We notice several things about that text. First, the text requires that the actor have the specific intent to harass, annoy, alarm, abuse, torment, or embarrass the recipient of the telephone call. That is, the text requires that the actor have the intent to inflict harm on the victim in the form of one of the listed types of emotional distress. Second, the text requires that the actor make repeated telephone calls to the victim; one telephone call will not suffice. Third, the text requires that the actor make those telephone calls in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend an average person. Fourth, the text does not require that the actor use spoken words.

Having examined the text of § 42.07(a)(4), we conclude that it is not susceptible of application to communicative conduct that is protected by the First Amendment. In other words, the statutory subsection does not implicate the free-speech guarantee of the First Amendment. The statutory subsection, by its plain text, is directed only at persons who, with the specific intent to inflict emotional distress, repeatedly use the telephone to invade another person’s personal privacy and do so in a manner reasonably likely to inflict emotional distress. Given that plain text, we believe that the conduct to which the statutory subsection is susceptible of application will be, in the usual case, essentially noncommunicative, even if the conduct includes spoken words. That is to say, in the usual case, persons whose conduct violates § 42.07(a)(4) will not have an intent to engage in the legitimate communication of ideas, opinions, or information; they will have only the intent to inflict emotional distress for its own sake. To the extent that the statutory subsection is susceptible of application to communicative conduct, it is susceptible of such application only when that communicative conduct is not protected by the First Amendment because, under the circumstances presented, that communicative conduct invades the substantial privacy interests of another (the victim) in an essentially intolerable manner. We sustain the State’s second ground for review.

Given our disposition of the State’s second and fourth grounds for review, we need not reach the State’s remaining grounds for review. We dismiss them.

Because § 42.07(a)(4) does not implicate the free-speech guarantee of the First Amendment, Scott, in making his vagueness challenge to that statutory subsection, was required to show that it was unduly vague as applied to his own conduct. He has not done that. Therefore, his vagueness challenge fails.

We reverse the judgments of the court of appeals and affirm the judgments of the trial court.

JOHNSON, J., filed a concurring opinion, in which COCHRAN, J., joined.

KELLER, P.J., filed a dissenting opinion.

MEYERS, J., did not participate.

JOHNSON, J.,

concurring opinion in which COCHRAN, J., joined.

Harassment, as defined in this statute, requires an intent to harass, annoy, alarm, abuse, torment, embarrass, or offend another in a manner reasonably likely to attain its goal; it does not require that the intended result actually occur. Because the intent is that of the speaker, that person must intend to do something that he or she believes would harass, annoy, alarm, abuse, torment, embarrass, or offend another and to do so repeatedly. While communication of some political view or expression of a personal opinion is protected speech, it is completed with one contact. If expressed to the same hearer repeatedly, such a “communication” may become harassment, as the pertinent information has already been communicated and no longer has a legitimate purpose.

I find it odd to divide the various actions into two groups based on the dubious distinction of being more or less “intense” emotionally. Why are “annoy,” “alarm,” “embarrass,” and “offend” less invasive of privacy than “harass,” “abuse,” and “torment”? Given the context, “alarm” is directed at the hearer’s alarm over the possibility of personal harm, a reasonable reaction, not alarm that the neighbor is having an affair or that a candidate for mayor has purportedly converted to a religion that the hearer does not approve of. Some hearers might experience extremely emotional embarrassment from being publicly exposed as a liar. Other hearers might not be even unsettled by a threat of bodily injury. One has only to keep up with current events to view the emotional extremes to which some persons will go when they are “offended.”

Harassment is in the mind of the speaker, not the hearer. The speaker who intends to harass, annoy, alarm, abuse, torment, embarrass, or offend another has himself defined, for that purpose, both the applicable term and the word “repeatedly.” They are not vague or over-broad for the speaker; they are clearly and precisely known. There is no ambiguity of intent in the mind of the speaker, and intent.under-girds the offense.

I join the opinion of the Court.

KELLER, P.J.,

dissenting.

I believe that parts of the harassment statute implicate First Amendment freedoms and that those parts violate the Constitution. I therefore respectfully dissent.

A. Prior Texas Cases

Our decisions in Long v. State and May v. State, and the Fifth Circuit’s decision in Kramer v. Price, set the backdrop for the claim we now face. These decisions invalidated statutes that contained the terms “annoy” and “alarm” as implicating First Amendment freedoms and being unduly vague. In its opinion today, the Court’s only attempt to distinguish these cases is to say that they involved different versions of the harassment statute than the one that is currently before us.

But the harassment provision at issue in the present case is similar in pertinent ways to the stalking provision that we invalidated in Long. The part of the harassment statute at issue provides:

A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he ... makes repeated telephone communications ... in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

The stalking provision in Long provided in relevant part:

A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he ... on more than one occasion engages in conduct ... that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass that person.

A comparison of these passages reveals only three features in the current statute that were not in the former stalking provision: (1) the use of “repeated” instead of “on more than one occasion,” (2) the additional emotional state of “offend” in the current statute, and (3) the limitation of the current statute to telephone communications.

B. “Repeated”

The term “repeated” introduces an ambiguity not present with the “on more than one occasion” language in the former stalking statute. Is conduct “repeated” if it occurs twice? If the two occurrences are a year apart? Does it matter whether the circumstances show that the multiple instances of conduct are connected to the same scheme or course of conduct? With respect to the facial constitutionality of a statute, this ambiguity may be acceptable if First Amendment considerations are absent. In many cases, it would be clear that a person’s conduct was “repeated,” so we could adjudicate on a case-by-case basis whether a particular person was afforded adequate notice under the statute. But if First Amendment freedoms are at stake, we cannot allow the ambiguity in a statute to chill protected expression.

The Court contends that we can read “repeated” to mean “more than one call in close enough proximity to properly be termed a single episode.” The Court fails to cite a single source, from a dictionary or otherwise, that limits “repeated” to actions in a single episode. Although a court has a general duty to employ “reasonable narrowing constructions” to avoid constitutional violations, it may not “assume the legislative prerogative and rewrite a statute” that is not “readily subject” to being narrowly construed. Would once a day for a month constitute “a single episode?” Under any common understanding it would not, but it is hard to believe the Legislature did not intend to reach such conduct. As discussed below, the Legislature has a legitimate interest in proscribing conduct over the telephone that is intentionally harassing, abusing, and tormenting. In my opinion, that interest would legitimately extend to multiple instances of conduct that could not reasonably be considered part of a single episode.

C. Offend

The term “offend” does nothing to obviate the concerns expressed in Long. We explained there that a person’s intent to inflict a more intense emotional state than “annoy” might serve to take the First Amendment out of the picture. But “offend” is no more intense an emotional state than “annoy” and “embarrass,” which we concluded “probably describe the least intense emotional states available under the [stalking] statute.”

D. Telephone Communications

That leaves the remaining distinctive feature of the current harassment provision: the fact that it is limited to telephone communications. I agree with the Court that the First Amendment is not implicated when the “intent” and the “reasonably likely” effect of a person’s conduct is to “harass,” “abuse,” or “torment.” But I would hold that the First Amendment is implicated when the “intent” or “reasonably likely” effect of a person’s conduct is to “annoy,” “alarm,” “embarrass,” or “offend.”

1. Binding Precedent

In Long, we said that the terms “harass,” “abuse,” and “torment” carried a greater emotional intensity than “annoy” or “embarrass,” though they still implicated First Amendment freedoms under the stalking statute. The former stalking statute expansively covered “any conduct in which a person could possibly engage.” But the context in which the harassing conduct occurs can be important. Government can act, consistent with the First Amendment, to prevent “substantial privacy interests” from “being invaded in an essentially intolerable manner.” The State has the greatest leeway in regulating expression in favor of privacy interests when it seeks to “prohibit intrusion into the privacy of the home.” At the same time, the Supreme Court has stressed that “we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech.” Telephone harassment under the current statute can sometimes occur in the home, but the statute does not limit it in that manner.

2. Other Jurisdictions

In United States v. Bowker, the Sixth Circuit addressed the constitutionality of the federal telephone harassment statute, which proscribed phone calls made by a person “without disclosing his identity and with intent to annoy, abuse, threaten, or harass.” The court identified two factors in upholding the constitutionality of the federal statute against a First Amendment overbreadth challenge. First, the court explained that the federal statute focuses “not simply [on] annoying telephonic communications” but also prohibits “abusive, threatening or harassing communications.” Second, the court said, the statute operates in a more private realm in which the listener has to “deal with much more inconvenience to avoid” the unwanted speech, and the unidentified nature of the caller was more likely to instill fear in the listener and make it more difficult for the listener to confront the caller.

The New Hampshire Supreme Court distinguished its state’s telephone harassment statute from that in Bowker on two grounds: the state statute prohibited “all telephone calls placed with the intent to annoy or alarm” and it did not require anonymity. The court found that the New Hampshire statute was not directed toward only those communications intended to instill fear in the victim, but instead swept far more broadly. “Simply put,” the court explained, “the First Amendment is made of sterner stuff.” The court concluded that the New Hampshire statute was overbroad because it covered a substantial amount of protected First Amendment speech, and there was a real likelihood that it might discourage citizens from exercising that speech.

In Galloway v. State, Maryland’s court of last resort addressed the constitutionality of its harassment statute, which provided as follows:

a) Course of conduct defined. — In this section “course of conduct” means a persistent pattern of conduct, composed of a series of acts over a period of time, that evidences a continuity of purpose.
(b) Applicability. — This section does not apply to any peaceable activity intended to express political views or provide information to others.
(c) Prohibited Conduct. — A person may not follow another person in or about a public place or maliciously engage in a course of conduct that alarms or seriously annoys another person:
(1) With intent to harass, alarm, or annoy the other person;
(2) After reasonable warning or request to desist by or on behalf of the other person; and
(3) Without a legal purpose.

The Galloway court initially stressed the significance of the adverb “seriously” that preceded “annoy,” but the court also noted a number of other restrictions that made the statute acceptable: the statute required “a reasonable warning to desist,” it did not apply to “any peaceable activity intended to express political views or provide information to others,” and it mandated that there be no “legal purpose” for the activity. Additionally, the court employed a narrowing construction by reading a “reasonable person” standard into the statute. Further, the court found that the presence of a specific intent requirement, though it might not be able by itself to save a statute from constitutional infirmity, helped to ensure that an accused had fair notice that he was violating a criminal statute. The court also quoted from a Connecticut case for the proposition that its harassment statute did not implicate overbreadth concerns under the First Amendment because the “prohibition is against purposeful harassment by means of a device readily susceptible to abuse as a constant trespasser upon our privacy.”

3. Comparison with Other Statutes

The harassment provision before us lacks most of the restrictions found in the statutes that were analyzed in Bowlcer and Galloway. The portion of the statute at issue does not require that the calls be anonymous. Although the Texas statute proscribes “repeated” communications, it does not require a showing that these communications were pursuant to a course of conduct. No exception is made for the expression of political views or the dissemination of information, and no reasonable warning to desist is required before further conduct triggers prosecution. Furthermore, the Texas statute does not contain a “reasonable person” standard. And though specific intent is required by the Texas provision, that specific intent can attach to low intensity emotional states (annoy, alarm, embarrass).

4. Low Intensity versus High Intensity Emotional States

As we said in Long, “The First Amendment does not permit the outlawing of conduct merely because the speaker intends to annoy the listener and a reasonable person would in fact be annoyed.” The same could be said of the intent to alarm or embarrass. An intent to inflict one of these low intensity emotional states on the listener, even in the context of a telephone conversation, could easily be part of a legitimate communication protected by the First Amendment. A constituent might call his congressman to express a grievance, and annoying that congressman may be part of a legitimate attempt to spur him to act on that grievance. Political phone calls could be made to the homes of prospective voters with the intent to alarm those voters about a candidate’s opponent or about a particular government policy. A concerned neighbor or jilted lover might hope to embarrass a husband engaged in an extramarital affair by leaving a message on his answering machine for the wife to hear. Any of these behaviors might be criminal if the caller calls twice.

On the other hand, no one has the right to intentionally harass, abuse, or torment other people over a telephone. Specific intent is a limited mental state that is distinctly narrower than the mental states of knowledge and recklessness. The statute requires that the caller intend to harass, abuse, or torment the recipient of the call, not merely that the caller know or suspect that his call may have that effect. Moreover, the telephone is a comparatively personal and private method of communication in which messages can be difficult to screen. As the Galloway court explained, it is “a device readily susceptible to abuse” by a person who intends to be “a constant trespasser upon our privacy.” When the intent of the actor is to inflict one of the higher-intensity emotional states of harass, abuse, and torment in the relatively private, “captive-audience” telephone context, and the actor’s conduct is reasonably likely to achieve that end, the First Amendment provides no protection.

E. “Sole” Intent

Consequently, I would hold that the harassment provision at issue implicates the First Amendment with respect to the terms “annoy,” “alarm,” “embarrass,” and “offend,” but does not implicate the First Amendment with respect to the terms “harass,” “abuse,” and “torment.” The Court contends that the entire statute is outside the purview of the First Amendment because “in the usual case, people whose conduct violates § 42.07(a)(4) will not have an intent to engage in legitimate communications of ideas, opinion, or information; they will have only the intent to inflict emotional distress for its own sake.” But nothing in the statute limits its application to those occasions when the actor’s sole intent is to inflict emotional distress, and if the court is implying that situations are rare in which a person has more than one intent, I disagree. The mischief this statute can create is enormous, as some of the hypotheticals given above illustrate.

And it is not feasible to graft “sole intent” onto the harassment statute as a narrowing construction. As I have explained, a court has a general duty to employ reasonable narrowing constructions to avoid constitutional violations, but it may not assume the legislative prerogative and rewrite a statute that is not readily subject to being narrowly construed. The Legislature can legitimately punish a person who intentionally harasses, abuses, or torments someone over the telephone even if that is not the person’s sole intent. One can easily imagine an ex-boyfriend hounding someone over the telephone with the intent to harass, abuse, or torment, but also having a particular grievance, real or imagined, to communicate. Such actors still deserve to be punished and are legitimately covered by the statute. When intentionally harassing, abusing, and tormenting conduct is occurring over the telephone, the authorities should not have to refrain from acting because the caller has or might have another reason for the call. Moreover, at trial the State would be saddled with proving “sole intent.” A “sole intent” narrowing construction would do more to undermine the statute than simply severing (with respect to the part of the statute at issue) the problematic terms “annoy,” “alarm,” “embarrass,” and “offend.” And finally, there is no basis in the statute for applying a “sole intent” construction only to the emotional states of “annoy,” “alarm,” and “embarrass.” The Supreme Court has explained that a party “give[s] the game away” when he argues that an intent requirement applies in some circumstances but not others if there is no basis whatever in the text for doing so. The Supreme Court stated that, though it “will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute.”

F. Spoken Words

The Court also says that the text of harassment statute “does not require that the actor use spoken words.” The portion of the statute at issue here proscribes “telephone communications.” Although someone may use a “telephone communication” for something other than words (e.g. silence or heavy breathing), the portion of the statute at issue here overwhelmingly implicates the spoken word. For example, ringing the phone repeatedly is proscribed by a part of the statute not at issue here. Moreover, although words are not required, that fact would not distinguish this case from Long, in which First Amendment freedoms were found to be implicated by the stalking statute.

For the above reasons, I respectfully dissent.

      . A statute may be challenged as unconstitutional "on its face” or “as applied.” A claim that a statute is unconstitutional “on its face” is a claim that the statute, by its terms, always operates unconstitutionally. Gillenwaters v. State, 205 S.W.3d 534, 536 n. 2 (Tex.Crim.App.2006). A claim that a statute is unconstitutional “as applied” is a claim that the statute operates unconstitutionally with respect to the claimant because of his particular circumstances. Id. at n. 3.

      . A statute may be challenged as unduly vague, in violation of the Due Process Clause of the Fourteenth Amendment, if it does not: (1) give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and (2) establish definite guidelines for law enforcement. Bynum v. State, 767 S.W.2d 769, 773 (Tex.Crim.App.1989). A statute may be challenged as overbroad, in violation of the Free Speech Clause of the First Amendment, if, in addition to proscribing activity that may be constitutionally forbidden, it sweeps within its coverage a substantial amount of expressive activity that is protected by the First Amendment. Morehead v. State, 807 S.W.2d 577, 580 (Tex.Crim.App.1991).

      .Ordinarily, a criminal defendant who challenges a statute as unduly vague must show that it is vague as applied to the conduct for which he was charged. Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); Bynum v. State, 767 S.W.2d 769, 774 (Tex.Crim.App.1989). However, if the challenged statute implicates the free-speech guarantee of the First Amendment — i.e., if the statute, as authoritatively construed, is susceptible of application to speech guaranteed by the First Amendment — then the defendant is permitted to argue that the statute is over-broad on its face because it is unclear whether it regulates a substantial amount of protected speech. United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008); Gooding v. Wilson, 405 U.S. 518, 520-21, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). This exception to the usual rule is deemed justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights. Gooding v. Wilson, 405 U.S. at 521, 92 S.Ct. 1103. In the cases before us today, Scott's argument, as we understand it, is that § 42.07 is overbroad on its face because its inherent vagueness makes it unclear whether it prohibits a substantial amount of protected speech.
      Note: In this opinion, we use the word "speech” and the phrases "communicative conduct” and "expressive activity" interchangeably; in the First Amendment context, they mean the same thing.

      . Texas Penal Code § 42.07 provides, in relevant part:
      (a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he:

      (4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another;

      (7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.
      (b) In this section:
      (1) "Electronic communication” means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system. The term includes:
      (A) a communication initiated by electronic mail, instant message, network call, or facsimile machine; and
      (B) a communication made to a pager.

      . Scott's arguments, because they were untimely, were not preserved for appellate review. Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex.Crim.App.2006); Tex.R.App. Proc. 33.1.

      . In the court of appeals and in this Court, Scott relies primarily upon Kramer v. Price, 712 F.2d 174 (5th Cir.1983), reh'g en banc granted, 716 F.2d 284 (5th Cir.1983), grant of relief aff'd, 723 F.2d 1164 (5th Cir.1984); Long v. State, 931 S.W.2d 285 (Tex.Crim.App.1996); May v. State, 765 S.W.2d 438 (Tex.Crim.App.1989); and Korenev v. State, 258 S.W.3d 210 (Tex.App.-Fort Worth 2008), rev’d on other grounds, 281 S.W.3d 428 (Tex.Crim.App.2009). In none of those cases, however, did the court address the primary question that we address today: whether § 42.07(a)(4), as currently written, implicates the free speech guarantee of the First Amendment.

      . The court of appeals explained this particular holding as follows:
      "We hold that subsections (a)(4) and (7) do implicate First Amendment freedoms. What is ‘annoying,’ 'embarrassing,' or even 'alarming' may be protected speech. For example, political calls made repeatedly during election season could fall under subsection (a)(4) if the caller is intending to alarm the recipient concerning a particular candidate. Further, we note that subsection (a)(7)'s ‘electronic communications' could encompass some talk radio and television programming.” Scott v. State, 298 S.W.3d 264, 269 (Tex.App.-San Antonio 2009).

      . Scott v. State, 298 S.W.3d 264, 267, 269, 270 (Tex.App.-San Antonio 2009).

      . The State's petition covers both cases. The State's grounds read as follows:
      (1) Are subsections (a)(4) and (a)(7) of Texas Penal Code § 42.07 unconstitutionally vague?
      (2) Do subsections (a)(4) and (a)(7) of Texas Penal Code § 42.07 implicate the First Amendment to the United States Constitution?
      (3) Are the term "repeated” and the phrase "in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another,” which are both contained within Texas Penal Code § 42.07(a)(4) and (a)(7), unconstitutionally vague?
      (4) Did the State’s allegation that appellant left "voice mail messages” implicate Texas Penal Code § 42.07(a)(7) in this case, and does that phrase necessarily fall within the definition of "electronic communication” found at Texas Penal Code § 42.07(b)(1)?
      (5) If some part of Texas Penal Code § 42.07 is unconstitutionally vague, did the Court of Appeals err by declaring it vague and acquitting appellant instead of applying a narrow construction to the statute to avoid the alleged vagueness?
      (6)Has the Court of Appeals improperly determined that because subsections (a)(4) and (a)(7) of Texas Penal Code § 42.07 allegedly implicate the First Amendment and might curtail protected speech those subsections are vague, when the proper question should have been whether the subsections are overbroad?

      . See M. Royall, Constitutionally Regulating Telephone Harassment: An Exercise in Statutory Precision, 56 U. Chi. L.Rev. 1403, 1418 (1989) (The Cohen v. California "intolerability” standard is "useful [for] evaluating telephone harassment statutes.”).

      . When we interpret a statute, our constitutional duty is to determine and give effect to the apparent intent of the legislators who voted for it. In determining this apparent legislative intent, we focus our attention on the text of the statute and ask ourselves, how would ordinary legislators have understood that text? Whitehead v. State, 273 S.W.3d 285, 288 (Tex.Crim.App.2008); Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). We also presume that the legislators were aware of their constitutional obligations and intended a constitutional statute. State v. Edmond, 933 S.W.2d 120, 124 (Tex.Crim.App.1996); 82 C.J.S. Statutes § 381 (2009).

      . The term "repeated” is commonly understood to mean "reiterated,” “recurring,” or “frequent." Webster’s Ninth New Collegiate Dictionaiy 998 (1988); 2 Oxford English Dictionary 2494 (1971). Here, we believe that the Legislature intended the phrase "repeated telephone communications” to mean "more than one telephone call in close enough proximity to properly be termed a single episode,” because it is the frequent repetition of harassing telephone calls that makes them intolerable and justifies their criminal prohibition. See M. Royall, Constitutionally Regulating Telephone Harassment: An Exercise in Statutory Precision, 56 U. Chi. L.Rev. 1403, 1430 (1989) (“Prudence may justify a hands-off policy for single calls made with the intent to harass, but as harassing calls are repeated the state interest in intervening to protect the recipient becomes more compelling.”).

      .The terms "harass,” "annoy,” "alarm,” "abuse,” "torment,” "embarrass,” and "offend” all have commonly understood definitions that are relevant in this context. "Harass” means "to annoy persistently.” "Annoy” means to "wear on the nerves by persistent petty unpleasantness.” "Alarm” means "to strike with fear.” "Abuse” means "to attack with words.” "Torment” means “to cause severe distress of the mind.” "Embarrass” means "to cause to experience a state of self-conscious distress.” "Offend” means "to cause dislike, anger, or vexation.” Webster’s Ninth New Collegiate Dictionary 47, 68, 88, 405, 552, 819, and 1245 (1988).

      . In Jones v. Municipality of Anchorage, 754 P.2d 275 (Alaska App.1988), the court addressed the constitutionality, under the First Amendment, of a city ordinance that read: “It is unlawful for any person to anonymously or repeatedly telephone another person for the purpose of annoying, molesting, or abusing through patently offensive and profane language, or harassing that person or his family.” The court upheld the ordinance, explaining, in relevant part, that the ordinance "restrict[ed] speech only when it [was] essentially noncommunicative — in other words, only when the speech [was] devoid of any substantive information and [was] solely and specifically intended by the speaker to evoke an adverse emotional response from the listener.” Id. at 279.
      In State v. Thorne, 175 W.Va. 452, 333 S.E.2d 817 (1985), the court addressed the constitutionality, under the First Amendment, of a statute that read: "It shall be unlawful for any person to harass or abuse another by means of [a] telephone to ... [m]ake repeated telephone calls, during which conversation ensues, with intent to harass any person at the called number.” The court upheld the statute, explaining, in relevant part: “Prohibiting harassment is not prohibiting speech, because harassment is not speech. Harassment is not communication, although it may take the form of speech. The statute prohibits only telephone calls made with the intent to harass. Phone calls made with an intent to communicate are not prohibited.” Id. at 819. In State v. Elder, 382 So.2d 687 (Fla.1980), the court addressed the constitutionality, under the First Amendment, of a statute that read: “Whoever by means of telephone communication ... [m]akes a telephone call, whether or not conversation ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number ... shall be guilty of a misdemeanor.” The court upheld the statute, explaining, in relevant part, that the statute was "not directed at the communication of opinions or ideas, but at conduct, that is, the act of making a telephone call or a series of telephone calls, without disclosing identity and whether or not conversation ensues, with the intent to annoy, abuse, threaten or harass the recipient of the call. That this conduct may be effected in part by verbal means does not necessarily invalidate the statute on freedom of speech grounds.” Id. at 690.

      . In State v. Smith, 89 Misc.2d 789, 392 N.Y.S.2d 968 (App.Div.1977), the court addressed the constitutionality, under the First Amendment, of a statute that read: "[A person commits an offense] when, with intent to harass, annoy, threaten or alarm another person, he [c]ommunicates ... with a person, anonymously or otherwise, by telephone ... in a manner likely to cause annoyance or alarm.” The court upheld the statute, explaining, in relevant part, that the statute "was intended to include ... communications which are directed to an unwilling recipient under circumstances wherein substantial privacy interests are being invaded in an essentially intolerable manner.” Id. at 791, 392 N.Y.S.2d 968.

      . As we explained in footnote three, supra, we understand Scott's argument to be that § 42.07(a)(4) is overbroad because it is inherently vague.

      .931 S.W.2d 285 (Tex.Crim.App.1996).

      . 765 S.W.2d 438 (Tex.Crim.App.1989).

      . 712 F.2d 174 (5th Cir.1983), rehearing en banc granted, 716 F.2d 284 (5th Cir.1983), grant of relief affirmed, 723 F.2d 1164 (5th Cir.1984).

      . Long analyzed a similar issue as a vagueness claim with First Amendment implications. The Supreme Court's opinion in Holder v. Humanitarian Law Project, - U.S. -, 130 S.Ct. 2705, 2718-19, 177 L.Ed.2d 355 (2010) (citing United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008)), indicates that the proper analysis might be more appropriately characterized as a First Amendment overbreadth claim with a vagueness component. I analyze the issue in accord with Humanitarian Law Project, but the analysis is essentially the same.

      . See Long, generally; May, 765 S.W.2d at 440 (following and quoting Kramer, 712 F.2d at 178: “By failing to provide reasonably clear guidelines, § 42.07 gives officials unbounded discretion to apply the law selectively and subjects the exercise of the right of speech to an unascertainable standard.").

      . Court's op. at 667 n. 6.

      . Tex Penal Code § 42.07(a)(4).

      . Long, 931 S.W.2d at 288 (quoting the 1994 version of Tex. Penal Code § 42.07(a)(7)).

      . See id. at 291 (no nexus requirement in former stalking statute).

      . See Williams, 553 U.S. at 304, 128 S.Ct. 1830 (outside the First Amendment context, a person "who engages in conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.").

      . Long, 931 S.W.2d at 287; Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (referring to the need to protect persons “who may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression”).

      . Court's op. at 669 n. 12.

      . Long, 931 S.W.2d at 295.

      . Id. at 293.

      . See id. at 296. In addition, “offend” appears only in the second of the two lists of emotional terms — relating to what emotional state the victim was “reasonably likely” to suffer. See Tex Penal Code § 42.07(a)(4). The statute does not have a corresponding requirement of intent to offend. Id., § 42.07(a).

      . Long, 931 S.W.2d at 296.

      . Id. at 289 (emphasis in original).

      . Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).

      . Id.

      . Id. (some internal quotation marks omitted).

      . See United States v. Bowker, 372 F.3d 365, 377 n. 3 (6th Cir.2004), vacated on other grounds, 543 U.S. 1182, 125 S.Ct. 1420, 161 L.Ed.2d 181 (2005).

      . Id. at 379; see also United States v. Eckhardt, 466 F.3d 938, 943-44 (11th Cir.2006) (following Bowker),

      . Bowker, 372 F.3d at 379.

      . Id.

      . State v. Brobst, 151 N.H. 420, 422, 857 A.2d 1253 (2004).

      . Id.

      . Id. at 423, 857 A.2d 1253.

      . Id.

      . 365 Md. 599, 781 A.2d 851 (2001).

      . Id., 365 Md. at 608-09, 781 A.2d at 856 (quoting Maryland Code, (1957, 1996 Repl. Vol., 2000 Cum.Supp.), Article 27, § 123) (emphasis in Galloway).

      . Id., 365 Md. at 608 n. 4, 781 A.2d at 856 n. 4.

      . Id., 365 Md. at 619, 781 A.2d at 862.

      . Id., 365 Md. at 620, 781 A.2d at 863.

      . Id., 365 Md. at 632-33, 781 A.2d at 870-71.

      . Id., 365 Md. at 641-42, 781 A.2d at 876 (quoting Connecticut v. Snyder, 49 Conn.App. 617, 624, 717 A.2d 240, 243-44 (Conn.App.Ct.1998) (in turn quoting Connecticut v. Anonymous, 34 Conn.Supp. 689, 696, 389 A.2d 1270, 1273-74 (Conn.Super.Ct.1978))).

      . A portion of the statute does proscribe anonymous calls, see Tex. Penal Code § 42.07(a)(4), but that part of the statute was not relied upon in this prosecution, and I express no opinion about it.

      . Long, 931 S.W.2d at 289-90 ("reasonably likely” language in the former stalking provision did not codify a reasonable person standard).

      . Id. at 290 n. 4. The Supreme Court has recently suggested that whether an actor has a particular intent is a "true-or-false determination,” not a "subjective judgment” that would render a statute vague. See Ex parte Ellis, 309 S.W.3d 71, 89-90 (Tex.Crim.App.2010) (quoting Williams, 553 U.S. at 306, 128 S.Ct. 1830). In Long, we recognized that even if "intent to annoy, alarm, etc.” was clear, a statute could still "run into a serious overbreadth problem.” Long, 931 S.W.2d at 290 n. 4.

      .This observation was made by the court of appeals below. See Scott, 298 S.W.3d at 270.

      . See Stewart v. State, 240 S.W.3d 872, 873-74 (Tex.Crim.App.2007) (overturning tampering with evidence prosecution because, even if the defendant knew that his action would impair the availability of marijuana as evidence, the prosecution had not shown that he ini ended to impair its availability).

      . Court's op. at 670.

      . Long, 931 S.W.2d at 295.

      . Indeed, one can wonder whether a "sole intent” narrowing construction would destroy the statute in an attempt to save it because virtually every defendant would claim to have some other intent in addition to an intent to inflict emotional distress.

      . Holder v. Humanitarian Law Project, 130 S.Ct. at 2718. ("Finally, plaintiffs give the game away when they argue that a specific intent requirement should apply only when the material-support statute applies to speech. There is no basis whatever in the text of § 2339B to read the same provisions in that statute as requiring intent in some circumstances but not others.”).

      . Id.,

      . Court’s op. at 669.

      . See Tex. Penal Code § 42.07(a)(4), quoted in this opinion, ante.

      . See Tex. Penal Code § 42.07(a)(4).

      . See this opinion, ante.


source: Caselaw Access Project

author: Justice CARTER.

license: Public Domain

text:
    Mike NELSON and Big Woods Land Development, Inc., Appellants, v. BIG WOODS SPRINGS IMPROVEMENT ASSOCIATION, INC., Appellee.
    No. 06-09-00074-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted: June 22, 2010.
    Decided: Aug. 12, 2010.
    Rehearing Overruled Oct. 13, 2010.

      William R. Power, Law Office of William R. Power, Mineóla, TX, for Appellants.
    James W. Litzler, The Law Office of James W. Litzler, Sulphur Springs, TX, for Appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice CARTER.

Appellants have filed a motion for rehearing. This opinion is substituted for our opinion issued June 30, 2010.

This appeal arises out of declaratory judgments entered by a trial court in a suit resulting from an attempted takeover of a homeowner’s association, Big Woods Springs Improvement Association, Inc. (Association), by purported new members. On appeal, the trial court’s challenged declarations include (1) that the Association president had the right to adjourn the annual meeting, thus postponing election of board members and thereby preventing such takeover, and (2) 'that green areas were property of the Association. Also challenged is the trial court’s grant of attorney’s fees to the Association. We affirm the trial court’s judgment.

I. Factual and Procedural History

The procedure for the Association annual meeting was clearly set forth in its bylaws. The Association provides notice of the meeting “[n]ot less than ten days prior to a Meeting,” mails a “Ballot with the names of nominees for the Board of Directors ... with notice of Annual Meeting to each Association Member in good standing and qualified to vote,” a quorum of ten percent of the members in good standing who are qualified to vote must be present, “Members are entitled to one vote for each annual assessment fee (dues) paid,” and the “Ballot is the only method of voting for Officers.”

Vera Hall, president of the board of directors of the Association, sent each existing member with a right to vote their notice of election of board members, along with a ballot nominating four people for board election. The Ballot stated that it “may be brought to the Annual Meeting at the clubhouse on June 3, 2007, or mailed to the above address. IF MAILED, BALLOT MUST BE RECEIVED BY JUNE 2, 2007 TO BE COUNTED.” Hall called and presided over the Association annual meeting on June 3, 2007. Michael Nelson entered with Michael English, Teresa Reynolds, Tim Siler, Cathy Hulsey, and others, and a member of the group placed a video camera in the back of the meeting room.

At the meeting, Hall was handed a June 2, 2007, Big Woods Land Development, Inc. (Development) letter notifying the Association that it had sold 288 lots, both platted and unplatted, to new purchasers who allegedly took possession of the property on June 1 — two days prior to the scheduled Association annual meeting. The Development attached a list of the purported new owners — which demonstrated 174 of the sales were to Nelson. The list also reflected that a l/12th payment of the Association annual dues of $180.00 had been made by each new owner. Hall was presented with a check for $4,320.00, which totalled one month’s dues ($15.00) for 288 lots, and was asked that all new members be given the right to vote. Other than the Development letter, Hall was not presented with any other proof of ownership of the lots through deed, contract for sale, or otherwise.

Since it was unclear whether votes from purported new members should be counted, the meeting was adjourned “following a motion second and vote.” Hall confirmed that none of the purported new members had submitted an application for membership as required by the bylaws. Nevertheless, after the meeting was adjourned and the existing members left the room, Nelson reconvened the meeting with purported new members, despite the bylaw declaration that “[t]he President ... presides at Meetings.” Nelson conducted the meeting on his own for the purpose of his election as president of the board. Although Hall did not send any purported new members a ballot, 288 new ballots were signed, all dated between June 1-3. Nelson, English, and Reynolds were selected as board members through write-in votes. One or more of the new officers then went to the bank and obtained control over the Association bank account. They also passed a revitalization mandate preventing Hall, her husband, and several other current and proposed board members from “holding any current or future office in [the Association].”

The Association sued Nelson, English, Reynolds, Siler, Hulsey (Individual Defendants) and Development (collectively referred to as the Nelson Group) and sought injunctive relief preventing them from “holding themselves out as being directors and/or officers of’ the Association, and from exercising control over Association property and assets, including the Association bank account. Attached to the Association petition was a 2007 judgment in a previous case against Nelson’s wife, Rebecca, and Big Woods Springs, Inc., in which the same trial court made the following rulings:

The operative deed restrictions governing the Big Woods Spring [sic] subdivision in Wood County, Texas, apply only to platted lots and only owners of lots covered by the restrictions may vote on proposed amendments to the restrictions.
Big Wood [sic] Springs Improvement Association, Inc. is the only entity currently entitled to conduct business as the homeowners association for the Big Woods Springs subdivision.

It is undisputed that only twenty of the lots Nelson purchased were platted lots. Yet, he attempted to submit over 174 votes.

After the trial court issued a temporary injunction in this cause in the Association’s favor, the Nelson Group filed a counterclaim for declaratory judgment against the Association asking the court to declare that (1) the Association’s actions were contrary to the court’s 2007 judgment which provided that owners of lots covered by restrictions could vote; (2) the June 3, 2007, meeting was not adjourned but was continued that day by the Nelson Group; (3) the action of the Nelson Group was lawful; (4) all actions taken by the Association after June 3 were unlawful; and (5) the Nelsons are members of the Association. The Nelson Group sought attorney’s fees. They also asked the court to vacate the temporary injunction, which denied them access to Association grounds and property, and issue an injunction preventing the Association from denying the Nelson Group their property rights and enjoining the June 1, 2007, membership meeting, balloting, and election of officers and directors.

The Nelson Group argued in their counterclaim petition that “[t]he former procedure requiring new member application to be approved prior to new members being allowed to vote had been abandoned since at least the mid-1990’s.” In reply, the Association amended its petition to include a claim for declaratory judgment that the 1995 deed restrictions applied to the subdivision. Additional facts occurring after initiation of suit, including the Development’s billing of the Association for use of the community mailbox, and its claim of ownership of the Association’s green areas, resulted in the Association seeking further declaratory relief and attorney’s fees under the Uniform Declaratory Judgments Act.

The trial court issued judgment declaring that: Hall had the authority to adjourn the June 3, 2007, annual meeting; the 288 contracts for sale were not for purposes of lot ownership, “but were instead a scheme for winning the election of the Board of Directors”; the 1995 deed restrictions were in full force and effect; and the Association was the owner of all green areas, picnic areas, swimming piers, boat ramps, mailboxes, and clubhouses and did not owe any fees to the Development from their use. The court further enjoined the Nelson Group from holding themselves out as Association directors and/or exercising any control over the Association’s property or assets, including bank accounts. It awarded the Association $23,400.00, and an additional $5,000.00 conditioned upon successful appeal.

Only Nelson and the Development appeal the trial court’s ruling.

II. Trial Court Properly Granted Declaratory Judgment

“A person interested under a deed, will, written contract, or other writings constituting a contract ... may have determined any question of construction or validity arising under the instrument, ... and obtain a declaration of rights, status, or other legal relations thereunder.” Tex. Civ. Prac. & Rem.Code Ann. § 37.004(a) (Vernon 2008). We review declaratory judgments in the same manner as “other orders, judgments, and decrees.” Tex. Civ. PRAC. & Rem.Code Ann. § 37.010 (Vernon 2008); Mid-Century Ins. Co. of Tex. v. Childs, 15 S.W.3d 187, 188 (Tex.App.-Texarkana 2000, no pet.). In this case, findings of fact and conclusions of law were not requested or made. Thus, we must uphold the trial court’s judgment if it can be sustained upon any legal theory supported by the evidence. Childs, 15 S.W.3d at 188 (citing In re W.E.R., 669 S.W.2d 716, 717 (Tex.1984)); Rosen v. Wells Fargo Bank Tex., N.A., 114 S.W.3d 145, 148-49 (Tex.App.-Austin 2003, no pet.).

A. The Purported New Members Were Not Entitled to Vote Pursuant to Association Bylaws

Nelson and the Development argue that the trial court “erred in finding that June 3, 2007 ... membership election invalid.” The trial court reasoned: “it’s standard practice in membership meetings in homeowners associations or stockholders meetings, in corporations, for there to be a cutoff date for people who are expecting to vote to have provided the information necessary to the people who are verifying it.”

The trial court found that Hall

had the authority to recess the meeting. She was the presiding officer, and as such, she had the authority to recess it to take some time to look at the — as to whether or not this list of posed new members was a good list and whether these people should be able to vote. There were issues as to — there were a whole series of issues on that including whether or not the lots were platted or not platted.

With questions of new owner membership in the air, Hall could call for a vote to adjourn the meeting. The bylaws state that Robert’s Rules of Order govern the meeting and voting process where not otherwise specified. Article III of these rules provide that a motion to adjourn takes precedence over all other motions, is not debatable, and will carry by majority vote. Hall testified that the meeting was adjourned “following a motion second and vote” by all present, including the purported new members. A witness for the Nelson Group comprised a list of those who voted to adjourn and those who did not. According to this witness, fourteen people voted to adjourn and twenty people voted against, an assertion with which the trial court as trier of fact could have disagreed. Further, although the Association bylaws allow “[a]ny person who is the owner of legal or equitable title in any lot or living unit or any person who is a buyer under and pursuant to a contract for deed of any lot or living unit which is subject to present or future assessment by the Association ... [to] be a Member of the Association,” the person “must submit an Application for Association Membership to the Board of Directors prior to obtaining ownership of any lot or living unit.” In order to vote, the bylaws state that the member must first pay their annual assessment fee. It is undisputed that none of the purported new members filed an application for membership or paid the full amount of the annual dues. They were not entitled to vote on the issue of adjournment. Thus, the trial court’s decision that Hall had the authority to adjourn the meeting is supported by the bylaws and other evidence.

On motion for rehearing, Nelson points to our opinion in Ostrowski v. Ivanhoe Property Owners Improvement Association, and suggests that we erred in relying on Association bylaws to determine membership status. 38 S.W.3d 248 (Tex.App.-Texarkana 2001, pet. denied).

In Ostrowski, bylaws stated “owners who were current with the payments of fees could vote,” while a later drafted Maintenance Fund Agreement (MFA) provided only “owners of the majority of the lots” could vote to raise maintenance charges. Id. at 251-52 n. 5. Recognizing that the bylaws and MFA created a conflict, we held that while the bylaws “govern[ed] the general process by which initiatives are decided by the Association,” the MFA controlled the specific question of who could vote to raise maintenance charges. Id. at 253-54. This was the conclusion we reached in “harmonizing the provisions of the MFA and the bylaws” and “reading] them together.” Id. at 254.

The Nelson Group argues that the 1995 deed restrictions conflict with the bylaws because the restrictions refer to automatic membership into the Association. However, both the bylaws and 1995 deed restrictions require that new members submit an application for membership. Further, the deed restrictions do not address the issue of which members are entitled to vote at Association meetings, while the bylaws state that “[m]embers are entitled to one vote for each annual assessment fee (dues) paid.” Since there is no conflict between the bylaws and deed restrictions, Ostrowski does not apply to this case.

Because Nelson had no authority to preside over the meeting electing new board members, actions taken at the Nelson Group meeting, and the results following, were invalid. We find no error in the court’s ruling. See Childs, 15 S.W.3d at 188. We overrule the first point of error.

B. The Green Areas Belonged to the Association Pursuant to Deed

Next, Nelson and the Development argue that since the green areas are un-platted, they belong to the Development and the trial court erred in holding otherwise. A 1984 deed to the Association, as well as annual meeting minutes dating back to 2002, demonstrate Association ownership and control of green areas. The deed refers to the lake in its conveyance and states “[a]ll green areas and picnic areas shown on all the plats of Big Woods Springs Addition referred to above are to be conveyed herewith. All streets or roads ... are to be conveyed herewith.” The minutes reflect that Association volunteers and contractors are to mow the green areas and proposed to block access of strangers to the boat ramp via use of a combination lock. The bylaws also state that only members may use the lake, park areas, dumpster, clubhouse, apartment, fishing and swimming docks, and other Association facilities, all included within the deed to the Association.

Nelson and the Development concede on appeal that the clubhouse and lake were deeded to the Association, but claim that the green area “between Lots 520 and 521” could not have been included in the deeds since they “were outside the plats identified in the deeds.” A plat referencing “green area” adjacent to lot 520 was recorded in 1982. Thus, the court could determine it fell within the 1984 conveyance of “[a]ll green areas ... shown on all the plats of Big Woods Springs Addition.”

The next point of contention involves the community mailboxes, which the Nelson Group contends do not belong to the Association. The trial court was free to find otherwise, since the Association was given a permit in 2001 to install and use the community mailboxes. Also, the community mailboxes appear to be located on green area according to a map provided to the trial court.

Thus, because the trial court’s ruling is supported by the deeds and other evidence, we must uphold its ruling and overrule this point of error.

III. Alleged Error in Award of Attorney’s Fees to Association Not Preserved

Under Section 37.009, a trial court may award reasonable and necessary attorney’s fees that are “equitable and just.” Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 2008). The Association’s attorney testified he billed $200.00 per horn’ for work that he did and $85.00 per hour for work completed by his legal assistant. Asserting that he spent 100 hours on this case and the legal assistant spent forty hours, the attorney asked for a total fee of $23,400.00.

No objection or argument as to the amount of legal fees charged by the Association’s attorney was lodged until appeal. First, Nelson and the Development state “there is no evidence whatsoever that the fees awarded Plaintiff were reasonable or equitable and just in these circumstances.” In order to preserve a complaint for appellate review, a party must present a timely request, objection, or motion to the trial court. See Tex.R.App. P. 33.1(a)(1). The Nelson Group’s counsel stated his “labors have been not as exhaustive” as the Association’s attorney, that he did not “think that I’ve had that much time in the case. I’m not being paid by the hour, and as a result, I have not kept hourly records.” He asked the court to award $12,500.00 to $15,000.00 in attorney’s fees “as opposed to the higher number advocated by” the Association’s counsel. However, the Nelson Group’s attorney never questioned the reasonableness and necessity of attorney’s fees. He merely suggested during closing argument “that each side has enough merit to its case that each side ought to bear its own attorney’s fees.” We find this issue was not preserved. Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist. ex rel. Bd. of Directors, 198 S.W.3d 300, 318 (Tex.App.-Texarkana 2006, pet. denied).

Next, Nelson and the Development argue that the attorney’s fees should have been reduced by the amount of fees expended on issues abandoned or lost by the Association, such that it could not be considered a prevailing party on certain claims. No such objection was made to the trial court. Thus, we also conclude this contention was not preserved. Id.; see also Red Rock Props. 2005, Ltd. v. Chase Home Fin., L.L.C., No. 14-08-00352-CV, 2009 WL 1795037, at *7 (Tex.App.-Houston [14th Dist.] June 25, 2009, no pet.) (mem. op.) (objection that attorney’s fees were not segregated was not preserved in trial court); Fortenberry v. Cavanaugh, No. 03-07-00310-CV, 2008 WL 4997568, at *11 (Tex.App.-Austin Nov. 26, 2008, pet. denied) (mem. op.) (same).

IV. Conclusion

We overrule the motion for rehearing. We affirm the trial court’s judgment.

      . The Development was co-owned and operated by a relative of Nelson.

      . The Association returned the check because ‘‘[t]he persons for whom the dues are intended are not approved members."

      . The Association also sought declaratory judgment against the Development for certain timbering operations. The Association was granted a nonsuit of these claims.

      . The trial court granted a temporary injunction to this effect, which is not addressed in this opinion.

      . The Nelson Group argues that the deed restrictions govern the voting process. As discussed later, we find that the general voting process is governed by the Association bylaws.

      . There is no contest that Nelson and Rebecca owned at least one lot subject to the Association's deed restrictions since 1973. The trial court in this cause issued a temporary injunction finding that the Nelsons were entitled to notice of membership meetings and could vote in upcoming elections as long as they paid their yearly dues in accordance with the deed restrictions, which were imposed after the 1974 letter stating the Nelsons received “a life long membership ... without payment of any dues.”

      . The restrictions referenced in the trial court’s judgment contained the following language:
      Each purchaser of a tract or lot in the Subdivision must be a member of the Association. Upon acceptance of an application for membership in Big Woods Springs Association the simultaneous execution of a sales contract or the acceptance of a deed, each owner shall become a member.... Said membership shall be conditioned upon payment when due of such dues, fees and maintenance charges as the Association shall find necessary....

      . Under the Texas Business Organizations Code governing nonprofit corporations, the record date for "determining the owners or members” of a corporation is "the date on which: (1) notice of the meeting is given to the owners or members entitled to notice of the meeting” as provided by Section 6.101(d). Tex Bus. Orgs. Code Ann § 6.101(d) (Vernon 2009). The bylaws require such notification to be mailed ten days prior to the annual meeting, suggesting that the new owners would be cut off from membership for purpose of the annual meeting vote.

      . The parties make an argument as to the validity or invalidity of the sales contracts. The record reflects that certain contracts for sale, all signed on June 1, 2007, provided for deferred payment and contained provisions allowing the buyer to "cancel this contract without penalty within 14 days of the effective date ... by signing and returning the attached ‘Notice to Cancel Contract.' ” In her deposition, Baker claimed that none of the purported new owners had made any payments with respect to the contracts for sale referenced in deposition exhibit numbers 6, 7, and 8 which were not provided to this Court. Hall reiterated that these contracts for sale were cancelled. While the trial court found the contracts valid, it was also led to the conclusion that the sales were for the purpose of influencing the election. In our opinion, because the trial court’s ruling did not depend on the nature of these new sales contracts, but rather on whether Hall had the authority to adjourn the meeting and whether Nelson had the right to preside over another meeting, we need not address this issue.

      . Robert's Rules of Order is a procedural manual guiding parliamentary process. See Henry M. Robert et al„ Robert's Rules of Order, Newly Revised (10th ed. 2000).

      . In a bench trial, the court is the sole judge of the witness' credibility and the weight to be afforded the testimony. Moore v. Jet Stream Invs., Ltd., 315 S.W.3d 195, 204-05 (Tex.App.-Texarkana 2010, pet. filed) (citing Tate v. Commodore County Mut. Ins. Co., 767 S.W.2d 219, 224 (Tex.App.-Dallas 1989, writ denied)). The trial court, as the fact-finder, has the right to accept or reject all or any part of any witness’ testimony. Id. at 204-05 (citing Griffin Indus., Inc. v. Honorable Thirteenth Court of Appeals, 934 S.W.2d 349, 357 (Tex.1996)). On rehearing, the Nelson Group argues that Nelson was a not a new member to the Association and that his votes were enough to carry the motion to adjourn. Per Association bylaws, members are entitled to one vote for each annual dues paid. There is no evidence in the record clarifying how many annual dues were paid in full by Nelson, which may have entitled him to more than one vote.

      . The deed restrictions specify "each owner shall become a member" "[u]pon acceptance of an application for membership ... on the simultaneous execution of a sales contract or the acceptance of a deed.”

      . We note that with an exception not applicable here, a trespass to try title claim is the exclusive method in Texas for adjudicating disputed claims of title to real property. See Tex. Prop.Code Ann. § 22.001(a) (Vernon 2000); Martin v. Amerman, 133 S.W.3d 262, 267 (Tex.2004); Koch v. Tex. Gen. Land Office, 273 S.W.3d 451, 455 (Tex.App.-Austin 2008, pet. filed); Glover v. Union Pac. R.R. Co., 187 S.W.3d 201, 211 (Tex.App.-Texarkana 2006, pet. denied). When the suit does not involve the construction or validity of deeds or other documents of title, the suit is not one for declaratory judgment. McRae Exploration & Prod., Inc. v. Reserve Petroleum Co., 962 S.W.2d 676, 685 (Tex.App.-Waco 1998, pet. denied). The situation at hand involves both the title to lands and the construction to be placed on the deed of conveyance of part of die lands in controversy. Unlike our recent case of Ramsey v. Grizzle, 313 S.W.3d 498 (Tex.App.-Texarkana 2010, no pet.), this issue has not been raised on appeal; accordingly, the treatment of this matter solely as an action in declaratory judgment would be unassigned or unpreserved error at best, something we cannot entertain. Tex.R.App. P. 33.1.

      . Hall testified it was the Association’s position that the swimming area, fishing pier, and picnic area were transferred with the 1984 deed.

      . The court has discretion to award attorney's fees in a declaratory judgment action in an amount it determines is equitable and just. Id. at 319. Had this issue been preserved, the trial court was free to determine that the Association's attorney's testimony established that the fees sought were equitable and just.

      . In any event, an award of attorney's fees under the Uniform Declaratory Judgments Act "is not dependent upon a finding that the party prevailed." City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 754 (Tex.App.-Fort Worth 2008, pet. dism'd) (citing Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 637 (Tex.1996)); Dorman v. Arnold, 932 S.W.2d 225, 229 (Tex.App.-Texarkana 1996, no writ).


author: ANNE GARDNER, Justice. LEE ANN DAUPHINOT, Justice,

text:
    James DAHLEM, II, Appellant, v. The STATE of Texas, State.
    No. 2-08-334-CR.
    Court of Appeals of Texas, Fort Worth.
    May 6, 2010.
    Rehearing and En Banc Reconsideration Overruled July 15, 2010.

      Christian Jenkins, Arlington, TX, for Appellant.
    Paul Johnson, Criminal District Attorney, Charles E. Orbison, Chief Appellate Section, Katrina Sandberg, Mary Miller and Ryan Calvert, Assistant District Attorneys for Denton County, Denton, TX, for Appellee.
    Panel: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
   OPINION

ANNE GARDNER, Justice.

I. Introduction

Appellant James Dahlem II pleaded guilty to possession of less than four but more than one gram of cocaine. Pursuant to a plea bargain, the trial court placed Appellant on seven years’ deferred adjudication community supervision. In a single point, Appellant argues the trial court should have granted his motion to suppress the cocaine the game warden discovered while searching Appellant’s wallet. We affirm.

II. Factual Background

At approximately 10:45 p.m. on June 2, 2007, Game Wardens Ryan Hall and Zak Benge were patrolling Lake Lewisville when they noticed a boat on the water that did not have the required lighting. Appellant operated the boat, and he was accompanied on the boat by Angela Storozik and Samantha Priddy:

The wardens approached Appellant’s boat to conduct a water safety investigation. As the wardens initially approached Appellant’s boat, they did not notice any odor of marihuana or believe any of the occupants to be under the influence of any type of drug. However, Warden Benge observed in plain view what he believed to be a pipe for smoking marihuana; the pipe was partly protruding from beneath a woman’s purse on a seat in the boat. Warden Benge then boarded the boat, confiscated the pipe, and informed Appellant, Storozik, and Priddy that he was preparing to search the boat for “the rest of the marihuana.” Warden Benge then said, “if there’s anything else here, let us know now; we can handle it as easily as possible as long as it’s not large amounts of illegal drugs.” Storozik, under whose purse the pipe had been discovered, then informed Warden Benge that she had marihuana in her purse and handed her purse to him. Inside the purse, Benge discovered two small baggies of marihuana. Benge testified, however, that he did not know at that point if Storozik had truthfully disclosed all the remaining marihuana or if there was more marihuana in the boat.

Warden Benge then searched the glove compartment of the boat where he found a man’s wallet. Appellant asked if the wallet was his, and when Warden Benge said that it was, Appellant admitted there was “a little bit of something in there.” Warden Benge then opened Appellant’s wallet where he discovered a baggie containing the cocaine Appellant was charged with possessing. Warden Benge asked Appellant, “What is this?-” and Appellant responded, “It’s just a little blow, man.” The wardens then handcuffed and arrested Appellant.

III. Reasonableness of Search

In his sole point, Appellant contends the search of his wallet was unreasonable because the State did not prove his wallet was capable of concealing marihuana.

A. Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We give almost total deference to a trial court’s rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002). When, as here, the record is silent on the reasons for the trial court’s ruling, or when there are no explicit fact findings and neither party timely requested findings and conclusions from the trial court, we imply the necessary fact findings that would support the trial court’s ruling if the evidence, viewed in the light most favorable to the trial court’s ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.2008); see Wiede v. State, 214 S.W.3d 17, 25 (Tex.Crim.App.2007). We then review the trial court’s legal ruling de novo unless the implied fact findings supported by the record are also dispositive of the legal ruling. State v. Kelly, 204 S.W.3d 808, 819 (Tex.Crim.App.2006).

B. Applicable Law

The Fourth Amendment protects against unreasonable searches and seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24. To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex.Crim.App.2009). A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the burden of proof shifts to the State, which is then required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id. at 672-73; Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App.2005); Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005).

Whether a search is reasonable is a question of law that we review de novo. Kothe v. State, 152 S.W.3d 54, 62 (Tex.Crim.App.2004). Reasonableness is measured by examining the totality of the circumstances. Id. at 63. It requires a balancing of the public interest and the individual’s right to be free from arbitrary detentions and intrusions. Id. A search conducted without a warrant is per se unreasonable unless it falls within one of the “specifically defined and well-established” exceptions to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.), cert. denied,, 540 U.S. 1004, 124 S.Ct. 536, 157 L.Ed.2d 410 (2003); Best v. State, 118 S.W.3d 857, 862 (Tex.App.-Fort Worth 2003, no pet.).

The “automobile exception” permits officers to conduct a warrantless search of a motor vehicle if the officer has probable cause to believe that the vehicle contains evidence of a crime. Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419 (1970); Powell v. State, 898 S.W.2d 821, 827 (Tex.Crim.App.1994). Accordingly, where there is probable cause to search a vehicle, exigent circumstances to justify a warrantless search are not required. State v. Guzman, 959 S.W.2d 631, 634 (Tex.Crim.App.1998).

Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead persons of reasonable prudence to believe that an instrumentality of a crime or evidence pertaining to a crime will be found. Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.Crim.App.2007); Estrada v. State, 154 S.W.3d 604, 609 (Tex.Crim.App.2005); McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App.1991). An officer’s observation of contraband or evidence of a crime in plain view inside an automobile can be used to establish probable cause to seize the contraband or evidence. See Colorado v. Bannister, 449 U.S. 1, 4, 101 S.Ct. 42, 44, 66 L.Ed.2d 1 (1980). If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982).

C. Discussion

Appellant does not challenge the wardens’ investigative detention of his boat, the seizure of the marihuana pipe, or the discovery of the marihuana in Storo-zik’s purse. In fact, Appellant concedes that after seizing the pipe and marihuana, Warden Benge was authorized to search the boat for more marihuana. See id., 102 S.Ct. at 2157. Appellant also concedes that Warden Benge could lawfully search any containers on the boat that might conceal additional marihuana but argues that his wallet was not a container that might conceal the “object of the search.” See id., 102 S.Ct. at 2157; Neal v. State, 256 S.W.3d 264, 282 (Tex.Crim.App.2008). We disagree.

First, common knowledge suggests a small quantity of marihuana, similar to the small quantity Warden Benge already located in Storozik’s purse, could be concealed in a wallet. See Esco v. State, 668 S.W.2d 358, 365-66 (Tex.Crim.App.1982) (op. on reh’g) (relying on common knowledge to hold a reasonable person could believe a shotgun may have been disassembled and concealed in a briefcase). Second, Texas courts routinely decide cases where contraband was concealed in a person’s wallet. See, e.g., Herrera v. State, Nos. 07-09-00071-CR, 07-09-00072, 07-09-00073-CR, 2009 WL 2618301, at *2 (Tex.App.-Amarillo Aug. 26, 2009, no pet.) (mem. op., not designated for publication) (recognizing narcotics were located in appellant’s husband’s wallet); Dellatore v. State, No. 02-07-00369-CR, 2008 WL 4531692, at *1 (Tex.App.-Fort Worth Oct. 9, 2008, no pet.) (mem. op., not designated for publication) (stating officer found “a black wallet, in which there were three more baggies that contained methamphetamine”); Martinez v. State, No. 04-07-00147-CR, 2007 WL 4403589, at *3 (Tex.App.-San Antonio Dec. 19, 2007, no pet.) (mem. op., not designated for publication) (indicating that a “baggie of methamphetamine was found inside Martinez’s wallet”); Haney v. State, No. 05-06-00444-CR, 2007 WL 2028760, at *1 (Tex.App.Dallas July 16, 2007, no pet.) (mem. op., not designated fdr publication) (officer “discovered a small baggie of methamphetamine inside a wallet”); Washington v. State, 215 S.W.3d 551, 555 (Tex.App.-Texarkana 2007, no pet.) (stating that police found a “bag that appeared to contain crack cocaine” inside a wallet); Rogers v. State, No. 02-04-00529-CR, 2006 WL 240229, at *7 (Tex.App.-Fort Worth Feb. 2, 2006, no pet.) (mem. op., not designated for publication) (indicating methamphetamine was found in appellant’s wallet); Dew v. State, 214 S.W.3d 459, 462 (Tex.App.-Eastland 2005, no pet.) (holding that “[b]ecause the arrest for cocaine in appellant’s wallet was legitimate, the search of the vehicle was a search incident to arrest”).

We hold that Appellant’s wallet was a container on the boat capable of concealing the additional marihuana Warden Benge sought to locate, and Warden Benge’s discovery of the cocaine in Appellant’s wallet was the result of a lawful search. The trial court did not err in denying Appellant’s motion to suppress, and we overrule Appellant’s sole point.

IV. Preservation of Error

The concurring opinion cites this Court’s decision in State v. Cox, 235 S.W.3d 283, 285 (Tex.App.-Fort Worth 2007, no pet.) (en banc), and contends that because there is only a docket entry denying Appellant’s motion to suppress and no findings of fact or conclusions of law, we should be consistent with Cox and hold that Appellant failed to preserve error. We disagree with this suggestion. Cox did not involve preservation of error; the issue in that case was whether we had jurisdiction of the State’s interlocutory appeal from an order granting a motion to suppress.

In Cox, the State attempted to appeal from an order granting a motion to suppress as authorized by article 44.01 of the Texas Code of Criminal Procedure, entitled “Appeal by State.” Tex.Code Crim. Proc. Ann. art. 44.01 (Vernon 2006). Section (a)(5) of that statute allows interlocutory appeals by the State from orders granting motions to suppress. Id., art. 44.01(a)(5). The time for filing a notice of appeal by the State is specifically prescribed by that statute and by rule, and runs from the date that the order was “entered.” Id., art. 44.01(d) (providing appeal may not be taken by State later than fifteenth day after date order is “entered” by trial court); Tex.R.App. P. 26.2(b) (specifically providing State’s time to appeal runs from date trial court “enters” order). In Cox, we interpreted the term “entered,” as used in the statute and the rule governing appeals by the State, and held that a docket entry, even if signed by the trial court, is not sufficient to constitute a written order “entered” by the trial court to trigger the State’s right to appeal an interlocutory order granting a motion to suppress. 235 S.W.3d at 284.

There is no statute or rule comparable to article 44.01 that allows defendants to appeal interlocutory orders denying motions to suppress with or without a written order, and Cox is inapplicable here. Appeals by defendants are governed by a different statute, article 44.02, and different rules. Tex.Code Crim. Proc. Ann. art. 44.02 (stating defendant has right of appeal under rules “hereinafter prescribed” (now prescribed by the Texas Rules of Appellate Procedure)); Tex.R.App. P. 25.2(b). As pertinent here, Rule 25.2(a)(2) provides that a defendant has the right of appeal under code of criminal procedure article 44.02 when the trial court enters a judgment of guilt or “other appealable order.” Tex.R.App. P. 25.2(b); see also Staley v. State, 233 S.W.3d 337, 338 n. 4 (Tex.Crim.App.2007) (summarizing rule).

An order granting or denying a motion to suppress is not an “appealable order;” it is an interlocutory ruling that is not appealable absent statutory authority. See, e.g., Ahmad vS.W.3d 525, 526 (Tex.App.-Fort Worth 2004, pet. ref'd) (holding courts of appeals do not have jurisdiction to review interlocutory orders unless jurisdiction is expressly granted by law) (citing Apolinar v. State, 820 S.W.2d 792, 794 (Tex.Crim.App.1991); see also Jaramillo v. State, No. 13-09-00545-CR, 2009 WL 4918768, at *1 (Tex.App.-Corpus Christi Dec. 21, 2009, no pet.)) (mem. op., not designated for publication) (holding even if written order had existed, order denying motion to suppress was interlocutory order that was not appealable).

Appellant is not attempting to appeal directly from the interlocutory ruling on the motion to suppress as was the State in Cox, but is, instead, challenging the ruling by ordinary appeal from the written order signed by the trial court that deferred adjudication of guilt and imposed community supervision, which is appeal-able as a final conviction within thirty days after Appellant was placed on community supervision. Tex. Code. Crim. Proc. Ann. art. 44.01(j). Because Appellant is appealing from the order deferring adjudication and placing him on community supervision, jurisdiction of this Court is invoked by Appellant’s filing of his notice of appeal within the ordinary thirty-day time from the date of imposition of sentence, not from the date of the order denying Appellant’s motion to suppress. Tex.R.App. P. 25.2(b). A written order denying a motion to suppress is a not a prerequisite to jurisdiction of a defendant’s appeal from a final judgment of conviction; nothing in the code of criminal procedure supports such a requirement. Bracken v. State, 282 S.W.3d 94, 101 n. 1 (Tex.App.-Fort Worth 2009, pet. ref'd); see Tex.Code Crim. Proc. Ann. art. 44.02; Tex.R.App. P. 25.2(a)(2).

The concurring opinion confuses jurisdiction with preservation of error. In order for a complaint to be preserved for appeal, Rule 33.1(a) of the Texas Rules of Appellate Procedure requires, among other steps, that the record show the trial court “ruled on the request, objection, or motion, either expressly or implicitly.” Tex.R.App. P. 33.1(a) (emphasis added). The trial court’s ruling need not be expressly stated if its actions or other statements otherwise unquestionably indicate a ruling. Rey v. State, 897 S.W.2d 333, 336 (Tex.Crim.App.1995) (reviewing former appellate rule 52(a)). Actions or statements of a trial court have been held to constitute an implicit ruling when they “unquestionably indicated” a ruling under similar circumstances to this case. See Montanez v. State, 195 S.W.3d 101, 104 (Tex.Crim.App.2006) (holding trial court “implicitly” ruled on motion to suppress under rule 33.1(a) where record revealed trial court took motion to suppress under advisement, docket sheet stated “appeal preserved as to issues presented,” and notice of appeal contained trial court’s certification of defendant’s right to appeal on matters “raised by motion and ruled on prior to trial”); see also Flores v. State, 888 S.W.2d 193, 196 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (holding signed docket entry evidenced trial court’s ruling on motion to suppress and was sufficient to preserve error).

In this case, the trial court certified that this is a plea bargain case but that Appellant has a right to appeal because “matters were raised by written motion filed and ruled on before trial and not withdrawn or waived.” Further, the clerk’s record includes both Appellant’s motion to suppress and his brief in support of the motion to suppress, and we have been provided a reporter’s record from a February 7, 2008 hearing on Appellant’s motion to suppress, at the conclusion of which the trial judge took the motion under advisement. The trial court’s docket sheet entry, initialed by the trial judge, states that the motion to suppress was denied on February 20, 2008.

The ruling clearly appears from the record; thus, Appellant sufficiently preserved error as to the denial of his motion to suppress. Tex.R.App. P. 33.1(a); Montanez, 195 S.W.3d at 104. We decline to adopt the concurring opinion’s suggestion that entry of a written order signed by the trial court, which is necessary to invoke our jurisdiction for an appeal by the State, is also necessary to preserve a defendant’s complaint that the trial court erred in denying a motion to suppress. See Bracken, 282 S.W.3d at 101; Cox, 235 S.W.3d at 285.

V. Conclusion

Having overruled Appellant’s sole point, we affirm the trial court’s judgment.

DAUPHINOT, J., filed a concurring opinion.

LEE ANN DAUPHINOT, Justice,

concurring.

In State v. Cox, a majority of this court held an oral ruling on the record detailing findings of fact and conclusions of law and a docket entry signed by the trial judge and granting a motion to suppress insufficient to trigger a State’s appeal under article 44.01 of the code of criminal procedure and dismissed the appeal. To remain consistent, we should hold here that the docket entry initialed by the trial judge and denying a motion to suppress, with no oral ruling on the record and no findings of fact or conclusions of law, is likewise insufficient to preserve Appellant’s complaint.

Because the majority instead resolves the appeal on its merits, I respectfully concur.

      . See Tex. Health & Safety Code Ann. § 481.115(a), (c) (Vernon 2003); id. § 481.102(3)(D) (Vernon 2003).

      . Section 31.064 of the parks and wildlife code states: “A vessel or motorboat when not at dock must have and exhibit at least one bright light, lantern, or flashlight from sunset to sunrise in all weather.” Tex. Parks & Wild.Code Ann. § 31.064 (Vernon 2002).

      .Appellant does not contest that the wardens were authorized to detain his boat to conduct this water safety inspection.

      . Both parties analogize the search of Appellant's boat to an automobile. We agree with the analogy and apply the automobile exception to this case. See generally Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925) (listing search of "a ship, motor boat, wagon, or automobile for contraband goods” in one category and search of a "store, dwelling house, or other structure” in a different category (emphasis added)); see also United States v. Weinrich, 586 F.2d 481, 492-93 (5th Cir.1978) (applying automobile exception to boat search).

      . The trial court’s certification is on a form used by Denton County to certify a particular defendant's right to appeal. On the form, it appears that the trial court initially indicated that Appellant had no right to appeal but struck through that indication and then circled and put an "x” near the limited right to appeal quoted above.

      . State v. Cox, 235 S.W.3d 283, 283, 285 (Tex.App.-Fort Worth 2007, no pet.) (en banc majority op.).