ONION, Presiding Judge, dissenting.

Appellant was convicted in a bench trial of the offense of selling beer to a person "showing evidence of intoxication," in violation of V.T.C.A., Alcoholic Beverage Code, §§ 61.71(a)(6), and 61.77. Punishment was assessed by the court at a fine of $200.00. V.T.C.A., Alcoholic Beverage Code, § 1.05.

On appeal appellant complained the information failed to state an offense, and attacked the constitutionality of V.T.C.A., Alcoholic Beverage Code, § 61.71(a)(6). He contended that the phrase in the statute "showing evidence of intoxication" is so vague and overbroad that it is unconstitutional when applied in a criminal context. The panel of the Houston Court of Appeals [1st Dist.] affirmed the conviction with one justice dissenting on the constitutional question. Cotton v. State, 662 S.W.2d 110 (Tex.App. — Houston [1st Dist.] 1983). We granted appellant's petition for discretionary review Court of Appeals' holding that said § 61.71(a)(6) is constitutional.

V.T.C.A., Alcoholic Beverage Code, § 61.71 (Grounds for Cancellation or Suspension: Retail Dealer), reads in part:

"(a) The commission or administrator may suspend for not more than 60 days or cancel an original or renewal retail dealer's on- or off-premise license if it is found, after notice and hearing, that the licensee:

"(1) * * *

"* * * *

"(6) sold, served, or delivered beer to a person showing evidence of intoxication; . . . ." (Emphasis supplied.)

V.T.C.A., Alcoholic Beverage Code, § 61.77 (Certain Acts Also Violations of Code), reads:

"Any act or omission or commission which is a ground for cancellation or suspension of a license under Section 61.71, 61.74, or 61.75 of this code is also a violation of this code, punishable as provided in Section 1.05 of this code, except that the penalty for making a false statement in an application for a license or in a statement, report, or other instrument to be filed with the commission, which is required to be sworn, is provided in Section 101.69 of this code."

V.T.C.A., Alcoholic Beverage Code, § 1.05 (General Penalty), provides:

"(a) A person who violates a provision of this code for which a specific penalty is not provided is guilty of a misdemeanor and on conviction is punishable by a fine of not less than $100 nor more than $1,000 or by confinement in the county jail for not more than one year or by both.

"(b) The term 'specific penalty,' as used in this section, means a penalty which might be imposed as a result of a criminal prosecution."

Appellant argues that an overzealous police officer can determine that anyone "shows evidence of intoxication" and can use that section's proscription as a subterfuge for the arrest of a license holder or employee of an establishment licensed by the Texas Alcoholic Beverage Commission.

Whenever an attack upon the constitutionality of a statute is presented for determination, we commence with the presumption that such statute is valid and that the Legislature has not acted unreasonably or arbitrarily in enacting the statute. See Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Cr.App. 1978); Ex parte Smith, 441 S.W.2d 544 (Tex.Cr.App. 1969); Smith v. Davis, 426 S.W.2d 827 (Tex.Sup.Ct. 1968). The burden rests upon the individual who challenges the statute to establish its unconstitutionality. Ex parte Granviel, supra; Robinson v. Hill, 507 S.W.2d 521 (Tex.Sup.Ct. 1974). See also Broyles v. State, 552 S.W.2d 144, 148 (Tex.Cr.App. 1977).

It is the duty of the court to uphold the statute if a reasonable construction of said statute can be ascertained which will render it constitutional and carry out the legislative intent. Ely v. State, 582 S.W.2d 416 (Tex.Cr.App. 1974). If a statute is capable of two constructions, one of which sustains its validity, the courts will give to it the interpretation that sustains its validity. Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App. 1968); Ex parte Granviel, supra, and cases there cited.

In 53rd Tex.Jur.2d, Statutes, § 184, p. 277, it is written:

"Every reasonable intendment and presumption will be made in favor of the constitutionality and validity of a statute, until the contrary is clearly shown. The legislature is presumed to have regarded constitutional limitations or requirements in enacting laws, as assiduously as the courts do in construing and applying them. And before a legislative act will be set aside, it must clearly appear that its validity cannot be supported by any reasonable intendment or allowable presumption."

The standard rule, which has become axiomatic, in considering allegations that a statute is void for vagueness and indefiniteness is:

A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application lacks the first essential of due process. Ex parte Chernosky, 217 S.W.2d 673 (Tex.Cr.App. 1949); Ely v. State, supra; Connally v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed.2d 322 (1925); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1938). A law must be sufficiently definite that its terms and provisions may be known, understood and applied; otherwise, it is void and unenforceable. Floyd v. State, 575 S.W.2d 21 (Tex.Cr.App. 1978). See also Ex parte Granviel, supra; Ex parte Holsted, 147 Tex.Crim. R., 182 S.W.2d 479, 482 (1944).

The standard rule has been adopted in Texas as the citations indicated. However, as noted in Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), greater leeway is allowed when a court considers allegations of vagueness and indefiniteness in "regulatory statutes governing business activities." 405 U.S. at 162, 92 S.Ct. at 843. In that respect, the court can consider both the face and the conduct to which it is applied. See United States v. National Dairy Products, 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). Furthermore, the language under attack can be "measured by common understanding and practices" or "construed in the sense generally understood." United States v. Petrillo, 332 U.S. 1, at 8, 67 S.Ct. 1538 at 1542, 91 L.Ed. 1877 (1947). See Ex parte Chernoski, supra; at 674; Ely v. State, supra, at 419.

A statute is not rendered unconstitutionally vague merely because its words or terms are not specifically defined. Floyd v. State, supra at 23; Powell v. State, 538 S.W.2d 617, 619 (Tex.Cr.App. 1976), cert. den. 429 U.S. 928, 97 S.Ct. 334, 50 L.Ed.2d 298.

V.T.C.A., Alcoholic Beverage Code, § 1.02, provides that the Code Construction Act (Article 5429b-2, V.A.C.S.) applies to the construction of each provision of the code except as otherwise expressly provided. Section 2.01 of said Code Construction Act provides that words and phrases are to be "read in context and construed according to the rules of grammar and common usage."

We also observe that Article XVI, § 20, provides in part:

"The Legislature shall also have the power to regulate the manufacture, sale, possession and transportation of intoxicating liquors, including the power to establish a State Monopoly on the sale of distilled liquors."

V.T.C.A., Alcoholic Beverage Code, § 1.03 (Public Policy), provides:

"This code is an exercise of the police power of the state for the protection of the welfare, health, peace, temperance, and safety of the people of the state. It shall be liberally construed to accomplish this purpose."

Turning to the challenged phrase in § 61.71(a)(6) of the Alcoholic Beverage Code, "showing evidence of intoxication," we do not find that the phrase is defined for the purpose of the statute or for the Alcoholic Beverage Code.

However, in Campos v. State, 623 S.W.2d 657 (Tex.Cr.App. 1981), this Court upheld the constitutionality of V.T.C.A., Alcoholic Beverage Code, § 101.63, against the contention that it fails to provide a standard or definition of the words "intoxicated" or "intoxication." Section 101.63 reads in pertinent part:

"(a) A person commits an offense if he knowingly sells an alcoholic beverage to an habitual drunkard or an intoxicated or insane person."

In rejecting Campos' contention, this Court wrote:

"We hold that since the word 'intoxicated' as used in said Section 101.63 is not defined therein or otherwise statutorily defined for the purpose of such statute it is to be given its commonly understood meaning.

"We cannot agree that the failure to define 'intoxicated' in Section 101.63 renders the statute 'defective' or unconstitutionally vague. A person of common intelligence can determine with reasonable precision what conduct it is his duty to avoid under the statute."

In McMorris v. State, 516 S.W.2d 927 (Tex.Cr.App. 1974), the defendant was found guilty of a violation of Article 341(b), V.A.P.C., 1925 (resisting arrest by use of a firearm against a peace officer). The statute in pertinent part provided:

"A person who uses or exhibits a firearm in resisting any lawful arrest, apprehension, or investigation by a peace officer is guilty of a felony. . . ."

McMorris contended that the statute provided no standards for determining whether an act is a criminal act and that a person of ordinary intelligence cannot determine from the wording of the statute what is prohibited. He contended the terms ". . . exhibit, resisting lawful arrest, apprehension and investigation" were subject to overly broad interpretation.

In rejecting the contention this Court wrote:

"The meaning of the words used in Article 341(b), V.A.P.C., are well known and may be understood by a person of ordinary intelligence. They give fair notice of the acts prohibited. The statute does not threaten constitutionally protected conduct of this appellant or of others. It is not overbroad. See Colten v. Kentucky, supra [ 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1982)]. Cf. Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965)."

See also Alexander v. State, 630 S.W.2d 355 (Tex.App. — Houston [1st] 1982) (no pet. hist.), holding the public intoxication statute (V.T.C.A., Penal Code, § 42.08), which states that an individual commits an offense if he appears in a public place under the influence of alcohol or any other substance to a degree that he may endanger himself or another, was not unconstitutionally vague and overbroad.

Although the phrase "showing evidence of intoxication" is not defined in the Code, we observe that "evidence" is defined in Webster's New Collegiate Dictionary as "a. an outward sign: Indication; b. something that furnishes proof." The Random House Dictionary of the English Language, Unabridged Edition (1965), defines "evidence" as "1. ground for belief; that which tends to prove or disprove something, proof 2. something that makes evident; an indication or sign. The same authority defines "evident" as "plain or clear to the sign or understanding." And in Campos v. State, supra, this Court examined the commonly understood meaning of the word "intoxication."

In Rice v. Alcoholic Beverage Control Appeals Board, 173 Cal.Rptr. 232, 118 Cal.App.3d 30 (2d Dist. 1981), a California court was called upon to construe § 25602(a) of the Business and Professions Code of that state. The California statute provides:

"Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor." (Emphasis added.)

In Rice the court stated:

" Courts have long recognized that the outward manifestations of intoxication are well known and easily recognized. In Coulter v. Superior Court (1978), 21 Cal.3d 144, 155, 145 Cal.Rptr. 534, 577 P.2d 669, the court said: 'Defendants have argued the term 'obviously intoxicated' is too broad and subjective to serve as a satisfactory measure for imposition of civil liability. However, the phrase is contained in section 25602, a criminal statute, and the courts have experienced no discernible difficulty in applying it. [See Samaras v. Dept. of Alcoholic Beverage Control (1960), 180 Cal.App.2d 842, 844, 4 Cal.Rptr. 857; People v. Smith (1949) 94 Cal.App.2d Supp. 975, 210 P.2d 98; People v. Johnson (1947) 81 Cal.App.2d Supp. 973, 975-976, 185 P.2d 105). As described in Johnson.]. . . ." (Emphasis supplied.)

In Johnson, supra, the court wrote:

"It seems clear, therefore, that a duty is placed upon the seller, before serving the intended purchaser, to use his powers of observation to such extent as to see that which is easily seen and to hear that which is easily heard, under the conditions and circumstances then and there existing. On the other hand, it is equally clear that he is not required to subject the customer to tests which disclose symptoms not readily apparent to anyone having normal powers of observation — sight, hearing and possibly smell. The use of intoxicating liquor by the average person in such quantity as to produce intoxication causes many commonly known outward manifestations which are 'plain' and 'easily seen or discovered.' If such outward manifestations exist and the eller still serves the customer so affected he has violated the law, whether this was because he failed to observe what was plain and easily seen or discovered, or because, having bserved, he ignored that which was apparent. Upon the trial, therefore, the facts constituting the alleged outward manifestations should be presented, and it is the exclusive province of the jury to determine whether or not they are such as to be obvious to a person having normal powers of observation, and recognizable as the usual indications of an intoxicated person." See also Kyle v. State, 366 P.2d 961 (Okla.Cr.App. 1961).

The Pennsylvania Liquor Code ( 47 P.S. § 4-493), provides in part:

"It shall be unlawful for any licensee . . . or any employee, servant or agent of

such licensee, . . . or any other person to sell, furnish, or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverage to be sold furnished or given to any person visibly intoxicated, or to any insane person, or to any minor, or to habitual drunkards, or persons of known intemperate habits." (Emphasis supplied.)

In Smith v. Evans, 421 Pa. 247, 219 A.2d 310 (1966), the court said:

"If a tavern keeper serves intoxicating liquors to anyone in a visible state of intoxication he violates the law. . . ." See also Connelly v. Ziegler, 380 A.2d 902, 251 Pa. Super. 521 (1977).

In New York, § 65 of the Alcoholic Beverage Control Code, provides in part:

"No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverage to . . .

"2. any intoxicated person or to any person, actually or apparently under the influence of liquor;

"3. any habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages." (Emphasis supplied.)

In 45 Amer.Jur.2d, Intoxicating Liquors, § 268, p. 669, it is written:

"Statutes frequently prohibit the selling, giving, or furnishing of intoxicating liquors to intoxicated persons. These usually place a duty upon the seller, before he serves a prospective purchaser, to use his powers of observation to see that which can easily be seen and hear that which can easily be heard and the existing conditions and circumstances, although he is not required to subject his customers to tests which would disclose symptoms not readily apparent to one having normal powers of observation."

Appellant argues that under the literal wording of the instant Texas statute — "showing evidence of intoxication," arbitrary and capricious arrests could be made by over zealous police officers. He urges there is no objective standard by which a person's conduct can be measured. He questions whether it would be proper to arrest an individual who sells beer to a person who merely has bloodshot eyes, who simply appears sleepy, drowsy, or who simply stumbles before the sale. Appellant asks "would it be proper to arrest and charge a bartender who sells a beer to a person who has had one other beer simply because that person now has a strong smell of alcohol on his breath?" Appellant asserts that since there is no ascertainable standard of guilt, the statute in question is vague and overbroad and it should be held unconstitutional.

The State argues it is a cardinal rule of statutory construction that where statutory words are not defined, the words employed are given their plain meaning, their common usage. It contends the statutory phrase in question means it is an offense to serve beer to one who is exhibiting "outward signs" or "proof of intoxication."

The Texas Alcoholic Beverage Code is an exercise of the police power of the State for the protection of the welfare, health, peace and temperance and safety of the people. V.T.C.A., Alcoholic Beverage Code, § 1.03. The statute is presumed to be constitutional. The requirement of reasonable certainty in statutes affecting individuals does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding. Sproles v. Binford, 286 U.S. 374, 393, 52 S.Ct. 581, 586-587, 76 L.Ed. 1167 (1932); Budd v. Madigan, 418 F.2d 1032 (9th Cir. 1969). The standard, as seen, for determining whether a statute is void for vagueness is whether it gives a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute. Papachristou v. City of Jacksonville, supra; McMorris v. State, supra. The regulatory statute here challenged meets that standard and passes the test. It is not vague and overbroad. It is constitutional. See Fourteenth Amendment, United States Constitution; Article I, § 19, Texas Constitution.

The judgment of the Court of Appeals should be affirmed. I dissent.

THOMAS G. DAVIS and W.C. DAVIS, JJ., join.