Jenkins, Taurus ( 2016 )

PD-0547-16
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/20/2016 4:31:47 PM
Accepted 6/21/2016 4:22:04 PM
ABEL ACOSTA
NO. PD-0547-16 CLERK
TO THE COURT OF CRIMINAL APPEALS
__________________________________________________________________
EX PARTE § TEXAS COURT OF
§
§
§
§
DEREK TY POE § CRIMINAL APPEALS
__________________________________________________________________
PETITIONER/APPELLANT
DEREK TY POE’S
PETITION FOR DISCRETIONARY REVIEW
On Petition For Discretionary Review from the Ninth
Court of Appeals; Cause Number 09-15-00373-CR,
affirming the denial of habeas corpus in Cause No.
301268-A from the County Court at Law No. 2 of
Jefferson County, Texas
T. EDWIN WALKER
State Bar No. 00786324
1020 Bay Area Blvd., Suite 216
Houston, Texas 77058
Tel: (281) 668-9957
Fax: (281) 282-9419
Email: tewalker@walkerbyington.com
ATTORNEY FOR DEREK TY POE
ORAL ARGUMENT REQUESTED
June 21, 2016
TABLE OF CONTENTS
Table of Contents…………………………………………………………………....i
Table of Authorities ………………………………………………………….……iii
Statement Regarding Oral Argument ………………………………………………v
Names of All Parties ………………………………………………………….……vi
Statement of the Case………………………………………………………….……1
Procedural History………………………………………………………………….2
Issues Presented………………………………………………………………….…3
First Ground for Review: The Ninth Court of Appeals erred in failing
to apply the presumption of invalidity to Texas Penal Code Sec.
42.01(a)(8), which is a content-based restriction, and instead applied
the usual standard of presumptive validity.
Second Ground for Review: The Ninth Court of Appeals erred when it
held that Texas Penal Code Sec. 42.01(a)(8) was not unconstitutionally
overbroad in violation of the First Amendment. This finding was based
upon the application of the incorrect presumption of validity instead of
the presumption of invalidity.
Third Ground for Review: The Ninth Court of Appeals erred when it
held that Texas Penal Code Sec. 42.01(a)(8) was not void for vagueness
in violation of the First Amendment. This finding was based upon the
application of the incorrect presumption of validity instead of the
presumption of invalidity.
Facts……………………………………………………………………………...…4
Argument and Authorities……………………………………………………….….5
First Ground for Review ………………………………………………….....8
Second Ground for Review ...........................................................................13
Third Ground for Review ……………………………………………….….17
Conclusion ………………………………………………………………………..21
i
Prayer ………………………………………………………………………….….22
Certificate of Service ……………………………………………………………...23
Certificate of Compliance …………………………………………………...……23
Appendix A ………………………………………………………………….……24
ii
TABLE OF AUTHORITES
Cases
Ashcroft v. ACLU, 542 U.S. 656 (2004)………………………………………..7, 15
Brandenburg v. Ohio, 395 U.S. 444 (1969)……………………………………..…6
Brown v. Entertainment Merchants Ass’n, 564 U.S. ___, 131 S. Ct. 2729 (2011)....7
Bynum v. State, 767 S.W.2d 769 (Tex. Crim. App. 1989)………………………..15
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)……………………………....6
Cohen v. California, 403 U.S. 15 (1971)……………………………………….…11
Ely v. State, 582 S.W.2d 416 (Tex. Crim. App. 1979)……………………………18
Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) …...………………….9, 12, 15
Ex Parte Thompson, 442 S.W.3d 325 (Tex. Crim. App.
2014)…………………………………………………………v, 6, 7, 8, 10, 12, 13, 16
Gooding v. Wilson, 405 U.S. 518, 521-22 (1972)………………………………….6
Grayned v. Rockford, 408 U.S. 104 (1972) ……………………..……………17, 18
Kramer v. Price, 712 F.2d 174 (5th Cir. 1983) …………………………..……18, 19
Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996) ...…………….18, 19, 20, 21
May v. State, 765 S.W.2d 438 (Tex. Crim. App. 1989)…………….………………19
Morehead v. State, 807 S.W.2d 577 (Tex. Crim. App. 1991)………..…………….6
New York v. Ferber, 458 U.S. 747 (1982)………………………………………….6
State v. Johnson, 475 S.W.3d 860 (Tex. Crim. App. 2015) ...………. v, 8, 10, 14, 15
State v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App. 2013) …………………………9
Terminiello v. Chicago, 337 U.S. 1 (1949)………………………………....………6
Texas v. Johnson, 491 U.S. 397 (1989)………………………………….……..…11
Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969)………..11
Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) ...………………..……12
United States v. Alvarez, ___ U.S. ___, 132 S. Ct. 2537 (2012)…………………....7
iii
United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000)……..…7
United States v. Stevens, 559 U.S. 460 (2010)………………………………..……15
United States v. Williams, 553 U.S. 285 (2008)…………………………………6, 14
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 234
(1981)……………………………………………………………………………...15
Virginia v. Black, 538 U.S. 343 (2003)……………………………………………...5
Virginia v. Hicks, 539 U.S. 113 (2003) ……………………………………………15
Constitutions, Statutes, Codes
House Bill 910, 84th Legislature…………………………………….......................11
Texas Penal Code Section 22.02…………………………………………..………16
Texas Penal Code Section 22.05(a)…………………………………………..……16
Texas Penal Code Section 22.05(b)…………………………………………..……16
Texas Penal Code Section 22.07…………………………………………….…….16
Texas Penal Code Section 42.01(a)(8)……………………………………..…passim
Texas Penal Code Section 42.11……………………………………………..……10
Texas Penal Code Section 42.12…………………………………………….…….16
Texas Penal Code Section 46.02……………………………………………..……11
Texas Penal Code Section 46.03……………………………………………….14, 16
Texas Penal Code Section 46.035………………………………………...……14, 16
Texas Penal Code Section 46.15(b)(6)…………………………………………….11
Texas Rule of Appellate Procedure 66.3(b)…………………………………………3
Texas Rule of Appellate Procedure 66.3(c)…………………………………………4
U.S. Constitution Amendment I………………………………………………passim
iv
STATEMENT REGARDING ORAL ARGUMENT
Petitioner believes that oral argument before the Court would be greatly
beneficial due to the crucial First Amendment application and complexities involved
in this case. In light of the action of the 84th Texas Legislature’s legalization of the
display of visible handguns by individuals who are not law enforcement officers,
Texas Penal Code Section 42.01(a)(8) lurks as a legal catch-all for use (or abuse) by
any police, prosecutor, or “alarmed” citizen who disagrees with the practice of
“open-carry.” Texas Penal Code Section 42.01(a)(8) does not serve to protect the
people of Texas to any greater degree than other criminal statutes that are currently
in effect. The statute’s sole purpose is to criminalize protected expressive speech.
Further, the Ninth Court’s ruling in this matter was based upon its erroneous
conclusion that Texas Penal Code Sec. 42.01(a)(8) criminalizes conduct and not
speech. This holding contradicts this Court’s recent findings in Ex Parte Thompson
and State v. Johnson, protecting expressive conduct as speech.
v
NAMES OF ALL PARTIES
Derek Ty Poe Petitioner/Appellant
T. Edwin Walker Petitioner/Appellant’s Trial and Appellate
State Bar No. 00786324 Counsel
1020 Bay Area Blvd., Suite 216
Houston, Texas 77058
State of Texas Appellee
Wayln G. Thompson Appellee’s Appellate Counsel
Jefferson County
District Attorney’s Office
1085 Pearl Street, Suite 300
Beaumont, Texas 77701
Daniel A Hunt Appellee’s Trial Counsel
Cornelius D. Williams
Jefferson County
District Attorney’s Office
1085 Pearl Street, Suite 300
Beaumont, Texas 77701
Hon. Kent Walson, sitting for
Hon. Cory J.H. Crenshaw
Judge Presiding
Jefferson County Court at Law No. 2
1085 Pearl Street
Beaumont, Texas 77701
vi
NO. PD-0547-16
TO THE COURT OF CRIMINAL APPEALS
__________________________________________________________________
EX PARTE § TEXAS COURT OF
§
§
§
§
DEREK TY POE § CRIMINAL APPEALS
__________________________________________________________________
PETITIONER/APPELLANT
DEREK TY POE’S
PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
Petitioner, Derek Ty Poe, by and through his attorney on appeal, T. Edwin
Walker, files this petition for discretionary review.
STATEMENT OF THE CASE
This case is a facial challenge to Texas Penal Code Sec. 42.01(a)(8) on the
grounds that it violates the First Amendment to the United States Constitution.
Specifically, the statute regulates the expressive conduct of displaying firearms or
other deadly weapons and is a content based statute in that it does not prohibit all
displays of firearms or other deadly weapons, but only those that are done “in a
manner calculated to alarm.” Because Texas Penal Code Sec. 42.01(a)(8) is a content
based restriction on expressive conduct, it is unconstitutionally overbroad in that it
1
prohibits a substantial amount of protected speech. Further, it is unconstitutionally
vague because it provides no guidance to actors, law enforcement, or the public as a
whole, as to what expressive conduct is considered criminal.
PROCEDURAL HISTORY
On December 31, 2013, Derek Ty Poe was charged in Cause Number 301268,
State of Texas v. Derek Ty Poe, with the crime of disorderly conduct by displaying
a deadly weapon, namely a firearm, in in a public place a manner calculated to alarm,
in violation of Texas Penal Code Section 42.01(a)(8). 1 Derek Ty Poe filed an
Application for Pretrial Writ of Habeas Corpus Seeking Relief Due To The
Unconstitutionality of Texas Penal Code Section 42.01(a)(8) in Jefferson County
Court at Law No. 2.2 After a hearing on May 20, 2015, the trial court denied his
application on August 21, 2015.3 Petitioner then appealed the trial court’s order to
the Texas Court of Appeals, Ninth District. The Ninth Court of Appeals issued its
judgment affirming the trial court’s order on April 20, 2016. No motion for rehearing
was filed. The opinion of the Ninth Court of Appeals is attached to this petition as
Appendix A.
1
CR at 8.
2
CR at 19.
3
CR at 69.
2
ISSUES PRESTENTED
This Honorable Court is respectfully requested to review the following issues:
First Ground for Review:
The Ninth Court of Appeals erred in failing to apply the presumption of
invalidity to Texas Penal Code Sec. 42.01(a)(8), which is a content-based
restriction, and instead applied the usual standard of presumptive validity.
Second Ground for Review:
The Ninth Court of Appeals erred when it held that Texas Penal Code Sec.
42.01(a)(8) was not unconstitutionally overbroad in violation of the First
Amendment. This finding was based upon the application of the incorrect
presumption of validity instead of the presumption of invalidity.
Third Ground for Review:
The Ninth Court of Appeals erred when it held that Texas Penal Code Sec.
42.01(a)(8) was not void for vagueness in violation of the First Amendment.
This finding was based upon the application of the incorrect presumption of
validity instead of the presumption of invalidity.
This Honorable Court should review this matter because the Ninth Court of
Appeals has decided an important question of state or federal law that has not been,
but should be settled by the Court of Criminal Appeals.4 The constitutionality of
Section 42.01(a)(8) has never been challenged as a violation of the First
Amendment. Further, this matter should be reviewed because the Ninth Court of
Appeals has decided an important question of state or federal law in a way that
conflicts with the applicable decisions of the Court of Criminal Appeals or the
4
Tex. App. Proc. Rule 66.3(b)
3
Supreme Court of the United States. 5 Specifically, the Ninth Court’s decision
conflicts with established First Amendment precedent that protects expressive
conduct as speech. The stakes for firearms owners and in particular holders of a
Texas License To Carry a handgun (LTC) have never been higher with regard to
potential criminal prosecutions for doing nothing more than lawfully displaying their
handguns when or where another person may subjectively find them “alarming.”
The Ninth Court of Appeals has failed to recognize the potential for abuse of Section
42.01(a)(8) due to its facial unconstitutionality. Merely displaying a firearm or other
deadly weapon is an act of expressive conduct. Section 42.01(a)(8) is a content-
based restriction on expressive activity. Therefore, the proper constitutional standard
of review in this matter is strict scrutiny. Intermediate scrutiny does not apply
because Section 42.01(a)(8) is not a time, place, and manner restriction, nor does it
further a substantial government interest without significantly impairing First
Amendment freedoms.
FACTS
Derek Ty Poe owned a firearms accessories store in Parkdale Mall, Beaumont,
Texas. On December 28, 2013, he was detained by Beaumont Police at the mall, for
conduct that amounted to nothing more than walking to his own store while carrying
his dinner and his rifle (used in his store for demonstrative purposes). The police
5
Tex. App. Proc. Rule 66.3(c)
4
confiscated his rifle and thereafter filed a probable cause affidavit that resulted in
the filing of an Information.6 The hearing on Petitioner’s habeas corpus application
produced substantial facts for the record. These facts include live testimony and
affidavits from individuals involved in the movement to legalize the “open carry” of
handguns, who state that the display of firearms is done for free speech purposes in
advocating for political change. The State produced no evidence to challenge,
contradict, or discredit this evidence.
ARGUMENT AND AUTHORITIES
Texas Penal Code Sec. 42.01(a)(8) criminalizes one who “displays a firearm
or other deadly weapon in a public place in a manner calculated to alarm.” The First
Amendment seeks to protect speech and expressive conduct. However, as
constitutional jurisprudence teaches, the First Amendment right is not absolute, and
there are certain categories of speech or expressive conduct that are entitled to more
protection than others.7 Laws that restrict speech on the basis of its content are
subject to strict scrutiny by the courts. Laws that restrict speech on the basis of its
time, place and manner, or promote a substantial government interest that is
unrelated to the suppression of and only incidentally to free speech are subject to
intermediate scrutiny for the purposes of determining if it substantially burdens
6
CR at 6.
7
Virginia v. Black, 538 U.S. 343, 358 (2003).
5
protected speech.8 Lastly, there is speech that is not protected the First Amendment
and the legislature is allowed to regulate it. However, even when attempting to
criminalize unprotected speech, “the statute must be carefully drawn or be
authoritatively construed to punish only unprotected speech” 9 Examples of
unprotected speech include child pornography10, fighting words11, offers to engage
in illegal conduct, 12 and incitement to commit immediate lawless action.13 The
United States Supreme Court stated long ago:
[A] function of free speech under our system of government is to invite
dispute. It may indeed best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions as they are,
or even stirs people to anger. Speech is often provocative and
challenging. It may strike at prejudices and preconceptions and have
profound unsettling effects as it presses for acceptance of an idea. That
is why freedom of speech, though not absolute, is nevertheless
protected against censorship or punishment, unless shown likely to
produce a clear and present danger of a serious substantive evil that
rises far above public inconvenience, annoyance, or unrest. There is
no room under our Constitution for a more restrictive view.14
The expressive conduct of displaying a firearm or other deadly weapon, even while
alarming to others is protected and does not fall into any of these categories of
unprotected speech.
8
Ex Parte Thompson, 442 S.W.3d 325, 344 (Tex. Crim. App. 2014).
9
Morehead v. State, 807 S.W.2d 577, 580 (Tex. Crim. App. 1991) citing Gooding v. Wilson,
405 U.S. 518, 521-22 (1972).
10
New York v. Ferber, 458 U.S. 747 (1982).
11
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
12
United States v. Williams, 553 U.S. 285 (2008).
13
Brandenburg v. Ohio, 395 U.S. 444 (1969).
14
Terminiello v. Chicago, 337 U.S. 1, 4 (1949).
6
The Supreme Court’s modern approach to First Amendment challenges to
penal statutes restricting speech is a three-step inquiry:
1. Does the statute restrict speech, including expressive conduct, based on its
content? If the answer is “yes,” then the statute is presumed to be
unconstitutional, the State has the burden of proving otherwise, and the
court must then ask...
2. Does the restricted speech fall entirely into a category of unprotected
speech? If the statute forbids only unprotected speech, the First
Amendment is satisfied and not violated. However, if the statute captures
protected speech along with unprotected speech, then...
3. Does the statute satisfy strict scrutiny? That is, is it necessary and narrowly
written to satisfy a compelling state interest?15
This strict scrutiny approach, with a presumption of invalidity and the burden
associated with it on the State, is the appropriate standard of review.16 “Content-
based regulations are presumptively invalid, and ‘[i]t is rare that a regulation
restricting speech because of its content will ever be permissible.’” 17 “[W]hen a
statute is content based, it may be upheld only if it is the least restrictive means of
achieving the compelling government interest in question.”18 Expressive conduct,
also known as “symbolic speech,” is protected like any other kind of speech. Texas
Penal Code Sec. 42.01(a)(8) is a content-based regulation of protected expressive
15
See generally United States v. Alvarez, ___ U.S. ___, 132 S. Ct. 2537 (2012).
16
See Ashcroft v. ACLU, 542 U.S. 656, 660 (2004).
17
Ex Parte Thompson, 442 S.W.3d at 348 (quoting Brown v. Entertainment Merchants Ass’n,
564 U.S. _____, 131 S. Ct. 2729, 2738 (2011) (quoting United States v. Playboy Entertainment
Group, Inc., 529 U.S. 803, 818 (2000)).
18
Id.
7
speech that does not pass the First Amendment’s strict scrutiny test in that it is
unconstitutionally vague and overbroad.
First Ground for Review:
The Ninth Court of Appeals erred in failing to apply the presumption of
invalidity to Section 42.01(a)(8), which is a content-based restriction, and
instead applied the usual standard of presumptive validity.
The opinion of the Ninth Court of Appeals reaches two conclusions in this
case. First, that Section 42.01(a)(8) “punishes conduct rather than the content of
speech alone”;19 and second, that Section 42.01(a)(8) “bears a rational relationship
to the State’s legitimate and compelling interest in protecting its citizens from
potential harm.” 20 The Ninth Court is in error because it failed to follow the
precedence set by this Court and consider that expressive conduct is speech for First
Amendment purposes. 21 The Ninth Court’s erroneous conclusion that Section
42.01(a)(8) regulates conduct allowed it to use the incorrect standard to determine
the statute’s constitutionality. The correct conclusion is that in this case, the conduct
(displaying a firearm or other deadly weapon) is expressive conduct and is therefore
speech.
It is true that in most cases where the facial constitutionality of a statue is at
issue that, “[t]o prevail on a facial challenge to the constitutionality of a statute, a
19
Appendix A, at 11.
20
Id. at p. 11-12.
21
See Ex Parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) and State v. Johnson, 475
S.W.3d 860 (Tex. Crim. App. 2015).
8
party must establish that the statute always operates unconstitutional in all possible
22
circumstances” however, this is not the constitutional standard in First
Amendment cases. The Ninth Court’s opinion begins its analysis by quoting the
correct standard as expressed in Ex Parte Lo:
The burden normally rests upon the person challenging the statute to
establish its unconstitutionality. [W]hen the government seeks to
restrict and punish speech based on its content, the usual presumption
of constitutionality is reversed. Content-based regulations (those laws
that distinguish favored from disfavored speech based on the ideas
expressed) are presumptively invalid, and the government bears the
burden to rebut the presumption.”23
The Court then ignores the analysis and ultimate holding in Lo and instead focuses
on dicta to conclude that the mere display of a deadly weapon is conduct and
therefore subject to the constitutional standard that presumes a statute’s validity.24
The Ninth Court’s opinion holds that the display of a firearm or other deadly
weapon, is conduct and not an act of expressive speech. However, this Court has
recently addressed the issue of conduct versus speech in Ex Parte Thompson, and
State v. Johnson. These two cases deftly tackle the issue of determining when
conduct that is not inherently expressive is still protected by the First Amendment.
The unescapable similarity to the issue at hand in this case dictate that the conduct
22
State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013).
23
Appendix at 9, quoting Ex Parte Lo, 424 S.W.3d 10, 14-15 (Tex. Crim. App. 2013).
24
Id.
9
of displaying a firearm or other deadly weapon should be analyzed under the same
scheme.
This Court in State v. Johnson, held that the Texas flag desecration statute is
unconstitutional and, stated:
The Supreme Court has recognized that the conduct of intentionally or
knowingly damaging a United States flag is not inherently expressive.
As a result, a statute that proscribes such conduct will at least
theoretically apply to some circumstances that do not implicate the First
Amendment. The question is whether the applications of such a statute
that do implicate (and violate) the First Amendment are so substantial
that the statute must be held invalid on its face.25
This Court applied strict scrutiny to Texas Penal Code Sec. 42.11, because even
though the destruction or abuse of a flag is not inherently expressive, there are
substantial expressive acts involving the desecration of a flag so that the statute was
declared unconstitutional. If conduct is not inherently expressive, the test to
determine if the conduct is in fact protected expressive speech is set forth in
Thompson. Conduct that is not inherently expressive implicates the First
Amendment if: (1) there was an intent to convey a particularized message, and (2)
the likelihood was great the message would be understood by those who viewed it.26
The Ninth Court’s opinion mentioned yet ignored evidence that was presented
during the hearing that on several occasions firearms were “displayed” in public
25
Johnson, 475 S.W.3d at 873.
26
Thompson, 442 S.W.3d at 334.
10
places as an essential element of a political protest, thereby showing that displaying
a firearm is expressive conduct in those situations. the record contains evidence,
including the testimony — live and by affidavit, from Terry Holcomb and
Christopher Grisham — illustrated, many people engaging in political
demonstrations with firearms have been subject to arrests and threats of arrest for
disorderly conduct under Section 42.01(a)(8).27 Under the Thompson criteria, the
display of a firearm can be intended to express a particularized message; in fact it
was political demonstrations of the display of firearms that helped persuade the 84th
Texas Legislature to legalize “open carry” of a handgun by license holders.28
The conduct of displaying a weapon is as expressive and “alarming” as black
arm bands, 29 offensive clothing, 30 or burning the United States flag. 31 Section
42.01(a)(8) regulates expressive speech (the display of a firearm) based upon its
content (a manner calculated to alarm). This content regulation is unconstitutional
because its language, specifically “displayed in a manner calculated to alarm,” is
vague and overbroad. Section 42.01(a)(8) does not regulate where or when a deadly
weapon can be displayed but instead makes a value judgment as to which displays
27
See RR Vol. 1, p. 9, lines 8-23; CR Vol. 1, p. 60-65.
28
The most relevant part of HB910 was the amendment to Texas Penal Code Sec. 46.15(b)(6)
that creates an exception to Texas Penal Code Sec. 46.02, for visible handguns carried in belt or
shoulder holsters by handgun license holders.
29
Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969).
30
Cohen v. California, 403 U.S. 15 (1971).
31
Texas v. Johnson, 491 U.S. 397 (1989).
11
of firearms or other deadly weapons are lawful and which are unlawful. Therefore,
it is a regulation of a substantial amount of expressive conduct based upon its
content.
Intermediate scrutiny does not apply to this case because the statute is not a
content-neutral time, place, or manner restriction. As this Court stated in Ex Parte
Thompson, “Generally, a law is considered to be Content based if it distinguishes
‘favored speech from disfavored speech on the basis of the ideas or views
expressed.’ ‘If it is necessary to look at the content of the speech in question to decide
if the speaker violated the law, then the regulation is content-based.’”32 This Court
then uses the following example to illustrate its point, “For example, a statute that
prohibits an adult from communicating with a minor via the internet is content-
neutral, but a statute that prohibits an adult from communicating with a minor via
the internet in a sexually explicit manner is content-based.”33 An otherwise content-
neutral restriction may be rendered content-based if it discriminates because of the
intent of the speech.34
The conduct regulated by Section 42.01(a)(8) is very analogous to the
32
Thompson, 442 S.W.3d at 345 (Tex. Crim. App. 2014) (quoting Turner Broadcasting System
v. Federal Communications Commission, 512 U.S. 622, 643 (1994) and Ex Parte Lo, 424
S.W.3d 10, 15 n.12 (Tex. Crim. App. 2013)).
33
Id.
34
Id., 442 S.W.3d at 347 (Tex. Crim. App. 2014) (holding that a portion of Section 21.15 of the
Texas Penal Code was content-based because it discriminated on the basis of the underlying sexual
thought).
12
communication this Court used as an example in Thompson. If the statute prohibited
all displays of deadly weapons, including firearms, it would be content neutral. Since
the statute only prohibits displays that are done in a manner calculated to alarm, it
regulates the content of the display. For instance, Texas Penal Code Sec. 46.03
(Places Weapons Prohibited) and Texas Penal Code Sec. 46.035 (Unlawful Carrying
of Handgun by License Holder) contain several places where the possession and
display of firearms, illegal knives, clubs, and prohibited weapons, is illegal without
regard to why they are carried or displayed. Because Section 42.01(a)(8) allows only
certain types of displays of firearms or other deadly weapons to be communicated
in a public place, it is a content-based regulation and therefore intermediate scrutiny
does not apply.
Second Ground for Review:
The Ninth Court of Appeals erred when it held that Texas Penal Code Sec.
42.01(a)(8) was not unconstitutionally overbroad in violation of the First
Amendment. This finding was based upon the Court’s application of the
incorrect presumption of validity instead of the presumption of invalidity.
If the Ninth Court had applied the correct constitutional standard when
judging the constitutionality of Section 42.01(a)(8), the statute would have failed as
being overbroad. This Court recently quoted the United States Supreme Court as
stating, “The first step in overbreadth analysis is to construe the challenged statute;
it is impossible to determine whether a statute reaches too far without first knowing
13
what the statute covers.”35 Section 42.01(a)(8) prohibits the intentional or knowing
display of a firearm or other deadly weapon in a public place in a manner calculated
to alarm. The statute contains no definitions, qualifications, exceptions, or defenses.
The only limitation to the statute prohibiting every display of a firearm or other
deadly weapon, is that only the displays “calculated to alarm” are prohibited. The
statute fails to detail what “calculated to alarm” actually means. Under Section
42.01(a)(8), a person could be accused and convicted of displaying a firearm or other
deadly weapon in a manner calculated to alarm based solely on the location of the
display without regard to how the firearm or other deadly weapon was actually
displayed or the purpose of the individual displaying it. Section 42.01(a)(8) allows
the police and prosecutors to make assumptions about the person’s intent without
regard to specific conduct, and to base arrests and prosecutions on those
assumptions, about where and under what circumstances a display can be made,
including when they are considered “inherently alarming.”36 A detention, arrest, and
prosecution can be done without any prior notice or guidance to a person who is
doing nothing more than legally carrying a visible firearm in a public place.
Because Section 42.01(a)(8) is challenged on First Amendment grounds, it
may be declared unconstitutional on its face, even if it may have some legitimate
35
Johnson, 475 S.W.3d at 871, citing United States v. Williams, 553 U.S. 285, 293 (2008).
36
This reference is made in response to the State’s Brief to the Ninth Court at page 13, when it
contended that some displays of deadly weapons should be considered “inherently alarming” based
solely on where the display occurs.
14
application and even if the parties before the court were not engaged in activity
protected by the First Amendment.” 37 Therefore, any arguments supporting the
assertion that Section 42.01(a)(8) may have some legitimate applications or that
Derek Ty Poe was not actually engaged in First Amendment activities because he
was in a shopping mall when he was accused of disorderly conduct, are not
determinative to the analysis of facial constitutionality. If a statute is overbroad to
the extent that it impedes or implicates substantial protected First Amendment
activity then it is unconstitutional.38 A statute is not unconstitutionally overbroad if
it is narrowly tailored so that it prohibits certain conduct without prohibiting
constitutionally protected conduct. 39 If a statute substantially impairs protected
speech, it is unconstitutional even if it justifiably prohibits unprotected speech.
Recently the Texas Court of Criminal Appeals stated, “According to the First
Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a
‘substantial’ amount of protected speech ‘judged in relation to the statute’s plainly
legitimate sweep.’ The State may not justify restrictions on constitutionally
protected speech on the basis that such restrictions are necessary to effectively
suppress constitutionally unprotected speech...”40
37
Johnson, 475 S.W.3d at 865, citing United States v. Stevens, 559 U.S. 460, 473 (2010).
38
See Ex Parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) and Ex Parte Lo, 424
S.W.3d 10 (Tex. Crim. App. 2013).
39
See Bynum v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989) (citing Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1981)).
40
Lo, 424 S.W.3d at 18 (Tex. Crim. App. 2013) (citing Virginia v. Hicks, 539 U.S. 113, 118-19
15
Section 42.01(a)(8) is not narrowly drawn because it overlaps numerous
Texas Penal Code statutes that prohibit specific dangerous or unsafe conduct
involving firearms and other deadly weapons. For instance, Section 22.02
criminalizes exhibiting a firearm during the course of an assault; Section 22.05(a)
prohibits recklessly pointing a firearm in the direction of another; Section 22.05(b)
prohibits knowingly discharging a firearm in the direction of persons, habitations,
buildings, or vehicles; Section 22.07 prohibits threatening to commit any offense
involving violence; Section 42.12 prohibits recklessly discharging a firearm in a city
of over 100,000 people; Section 42.01(a)(7) prohibits intentionally discharging a
firearm in a public place; Section 42.01(a)(9) prohibits intentionally discharging a
firearm across a public road; Sections 46.03 and 46.035 criminalize carrying a
firearm into specific prohibited locations. The fact that all other dangerous or unsafe
conduct with a firearm is regulated and prohibited by other penal statutes, means
that the only conduct that Section 42.01(a)(8) actually criminalizes that the others
do not, are First Amendment activities.
The Ninth Court’s conclusion that Section 42.01(a)(8) “bears a rational
relationship to the State’s legitimate and compelling interest in protecting its citizens
from potential harm”41 is not only unsubstantiated but also undermined because of
(2003) and Ashcroft v. Free Speech Coalition, 535 U.S. 234, 235 (2002) emphasis in original.)
41
Appendix A, at 11-12.
16
the existence of these other laws. All of the aforementioned statutes are drafted to
prohibit very specific harmful conduct with a firearm. Conversely, Section
42.01(a)(8) is a broad catch-all that allows for the criminalization of the conduct of
displaying a firearm or other deadly weapon and is not based upon the inherent
danger or unsafe manner of the display, but rather based on the subjective feelings
of whether another person may find the display of a firearm to be alarming and
contact the police.
Third Ground for Review:
The Ninth Court of Appeals erred when it held that Texas Penal Code Sec.
42.01(a)(8), was not void for vagueness in violation of the First Amendment.
This finding was based upon the application of the incorrect presumption of
validity instead of the presumption of invalidity.
The Ninth Court goes to great length to point out that the statute focuses on
the culpable mental state of the actor; in fact the Court states that in order to convict
a person under this statute, the State must prove not only that the actor’s display was
intentional but must prove beyond a reasonable doubt that the actor displayed the
deadly weapon with the particular intent to cause alarm;42 as if this issue of intent
lessens the statute’s vagueness. This illustrates just how vague the statute actually
is. Even with this specific-intent requirement, the statute does not meet the standards
of the well-established constitutional Grayned/Long test for vagueness. As this
Court stated, a statute is void for vagueness if it “either forbids or requires the doing
42
Id. at 13.
17
of an act in terms so vague that men of common intelligence must guess as to its
meaning and differ as to its application.”43
Statutes that impact First Amendment freedoms demand greater specificity
than laws that do not. A law must be clearly written so that it establishes determinate,
explicit guidelines for law enforcement to prevent arbitrary arrests and enforcement,
and it does not have a chilling effect on protected freedom of expression.44 This
Court’s opinion in Long v. State, while quoting the Supreme Court and the Fifth
Circuit Court of Appeals, states:
When a statute is capable of reaching First Amendment
freedoms, the doctrine of vagueness “demands a greater
degree of specificity than in other contexts.” Greater
specificity is required to preserve adequately the right of
free expression because “[u]ncertain meanings inevitably
lead citizens to steer far wider of the unlawful zone that if
the boundaries of the forbidden areas were clearly
marked.” Moreover, when a vagueness challenge involves
the 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.45
This Court used Long to set forth the test to determine if a statute is
unconstitutionally vague:
• First, a person of ordinary intelligence must be given a reasonable
opportunity to know what is prohibited;
43
Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979).
44
Long v. State, 931 S.W.2d 285, 287-88 (Tex. Crim. App. 1996) (citing Grayned v. Rockford,
408 U.S. 104 (1972) and Kramer v. Price, 712 F.2d 177 (5th Cir. 1983)).
45
Id. 931 S.W.2d at 287-288, (quoting Graynard v. Rockford, 408 U.S. 104, 109 (1972) and
Kramer v. Price, 712 F.2d 174, 177 (5th Cir. 1983)).
18
• Second, the law must establish determinate guidelines for law
enforcement;
• Finally, where First Amendment freedoms are implicated, the law
must be sufficiently definite to avoid a chilling protected
expression.46
Therefore, in order to survive a constitutional challenge, a statute must meet
each of these requirements. Failing to meet even a single prong of this test from Long
renders the statute unconstitutional.
The operative term of Section 42.01(a)(8), “manner calculated to alarm” is
entirely subjective and allows the police and prosecutors to act arbitrarily and
selectively as to which people who are displaying deadly weapons will be arrested
and which ones will not.
The Ninth Court ignored the fact that this Court has twice clearly and
explicitly stated that the term “alarm” is inherently vague.47 Since the word “alarm”
is the gravamen of Section 42.01(a)(8), it is important that the statute define, limit,
or qualify its meaning and application in order to lessen its inherent vagueness.
Section 42.01(a)(8) does none of this. As this Court has stated, “[t]he court further
explained that a statute’s vagueness is not lessened by making the conduct dependent
upon each complainant’s sensitivities. Finally, the court held that the intent
46
Id. 931 S.W.2d at 287.
47
See May v. State, 765 S.W.2d 438, 440 (Tex. Crim. App. 1989); Long v. State, 931 S.W.2d
285 (Tex. Crim. App. 1996). The Texas Court of Criminal Appeals took its guidance from the
federal Fifth Circuit in Kramer v. Price, 712 F.2d 174, 177-178 (5th Cir. 1983), who declared
that the word “alarm” in the Texas harassment statute was inherently vague.
19
requirement did not save the statute because the underlying conduct was still
vague.”48
The reason that criminal laws must be clearly stated is because the criminal
justice system requires that the citizens, police, prosecutors, and ultimately jurors be
provided definitive guidelines to distinguish between acts of criminal conduct and
the hundreds of acts of non-criminal conduct that may arise from similar
circumstances. As the State’s brief to the Ninth Court clearly acknowledges, “There
are infinite ways to display a firearm or other deadly weapon.”49 It is possible that
every single one of these “infinite ways” could be described as “a manner calculated
to alarm,” if so then the statute acts as a complete prohibition of the constitutional
and statutory right to wear, bear, and carry arms, for all purposes including those
protected by the First Amendment. The State has argued in its brief that carrying and
displaying a semi-automatic firearm in a public place, such as a mall, is “inherently
alarming.”50 However, on January 1, 2016, a handgun license holder’s display of
holstered semi-automatic handguns in public places, such as malls, became legal
under Section 46.15(b)(6). If it is “inherently alarming” as the State argues, then this
means that any handgun license holder who lawfully displays a handgun in a belt or
shoulder holster in a mall or other public place, has therefore done so in a manner
48
Long, 931 S.W.2d at 288.
49
State’s Brief to the Ninth Court, at 7 (emphasis added).
50
Id. at 13.
20
“calculated to alarm.” It is this kind of sweeping application of Section 42.01(a)(8)
due to its vague language that illustrates that the law is unconstitutional.
It is important to remember that constitutional jurisprudence requires that
“when 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.”51 This means that even if Petitioner was not
exercising his First Amendment freedoms when he walked through a mall with a
rifle safely slung across his back, Section 42.01(a)(8) can be facially unconstitutional
because it can be used against people who are displaying firearms as an act of clearly
First Amendment expression. Specifically, the people described in the testimony of
Terry Holcomb, the affidavit of Christopher Grisham, and the news stories entered
into evidence by Derek Ty Poe’s trial counsel.52
CONCLUSION
The Court of Criminal Appeals should grant this petition to review the
constitutionality of Section 42.01(a)(8). This statute only criminalizes the protected
expressive conduct of displaying a deadly weapon because other existing Texas
statutes regulate unsafe conduct with a deadly weapon. Section 42.01(a)(8) is
overbroad and vague so that it does not provide a potential defendant or jury, being
51
Long, 931 S.W.3d at 288.
52
CR at 31-66.
21
of ordinary intelligence, with any guidance as to what conduct is prohibited. Further,
the language of Section 42.01(a)(8) provides too much discretion, allowing law
enforcement and prosecutors to act arbitrarily and without notice, and therefore
unconstitutionally infringes on rights protected by the First Amendment.
PRAYER
Derek Ty Poe prays that this Honorable Court grant discretionary review in
this matter due to the errors of the Ninth Court of Appeals and order that the issues
cited herein be briefed, oral argument be heard, and thereafter find that Texas Penal
Code Sec. 42.01(a)(8) is facially unconstitutional.
/s/ T. Edwin Walker
T. EDWIN WALKER
State Bar No. 00786324
1020 Bay Area Blvd., Suite 216
Houston, Texas 77058
Tel: (281) 668-9957
Fax: (281) 282-9419
Email: tewalker@walkerbyington.com
ATTORNEY FOR DEREK TY POE
22
CERTIFICATE OF SERVICE
This certifies that on June 20, 2016, a true and correct copy of the foregoing
motion was served upon the Jefferson County District Attorney’s Office via
Jefferson County Assistant District Attorney, Wayln G. Thompson through
electronic service at his email address, thompson@co.jefferson.tx.us.
/s/ T. Edwin Walker
T. Edwin Walker
CERTIFICATE OF COMPLIANCE
I hereby certify that this document complies with the typeface requirements
of Tex. R. App. P. 9.4(e) because it has been prepared in Times New Roman, a
conventional typeface, no smaller than 14 point for text and 12 point for footnotes.
This document also complies with the word count limitations of Tex. R. App. R.
9.4(i) because it contains 4,490 words, excluding parts exempted by Tex. R. App. P.
9.4(i)(1).
/s/ T. Edwin Walker
T. Edwin Walker
23
APPENDIX A
Opinion of the Ninth Court of Appeals in No. 09-15-00373-CR
Ex Parte Derek Ty Poe
24
In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-15-00373-CR
________________
EX PARTE DEREK TY POE
__________________________________________________________________
On Appeal from the County Court at Law No. 2
Jefferson County, Texas
Trial Cause No. 301268-A
__________________________________________________________________
OPINION
Derek Ty Poe was charged by information with the misdemeanor offense of
disorderly conduct. See Tex. Penal Code Ann. § 42.01(a)(8) (West Supp. 2015).
Poe filed an application for pretrial writ of habeas corpus, in which he contended
that the disorderly conduct statute is facially unconstitutional due to its alleged
vagueness and its alleged infringement upon his rights under the First, Second,
Fifth, and Fourteenth Amendments to the United States Constitution and Article I,
sections 8, 10, 19, and 23 of the Texas Constitution. See Tex. Penal Code Ann. §
1
42.01(a)(8).1 After conducting an evidentiary hearing, the trial court denied Poe’s
application. In two appellate issues, Poe challenges the trial court’s denial of his
habeas application. We affirm the trial court’s order denying habeas relief.
BACKGROUND
The State charged Poe with disorderly conduct. Specifically, the State
contended that Poe “intentionally and knowingly display[ed] a deadly weapon,
namely a firearm, in a public place and in a manner calculated to alarm[.]” Poe
filed an application for pretrial writ of habeas corpus, in which he asserted that
section 42.01(a)(8) of the Penal Code is unconstitutionally vague, overbroad, and
violates his “constitutional rights to free speech and to bear arms[.]” Poe asserted
that “the act of displaying a firearm is conduct protected by the First Amendment.”
Poe contended that the terms “displaying,” “manner,” “calculated,” and “alarm”
are undefined, rendering the statute vague and overly broad, and he argued that the
statute fails to give a person of ordinary intelligence fair notice “that the statute
1
Although various subsections of section 42.01 have been amended or
deleted since the statute was enacted on January 1, 1974, with the exception of
being renumbered, the language of the current version of section § 42.01(a)(8) is
identical to the language the Legislature used when that subsection was enacted.
See Act of May 24, 1973, 63rd Leg., R.S., ch. 399, § 1, sec. 42.01(a)(9), 1973 Tex.
Gen. Laws 883, 954 (current version at Tex. Penal Code Ann. § 42.01(a)(8) (West
Supp. 2015)). Therefore, we cite to the current version of the statute.
2
outlaws certain conduct and therefore encourages the police and the prosecution to
make arbitrary and erratic arrests and convictions.”
According to Poe, the statute “provides no guidance or explanation as to
what facts or circumstance[s] must exist in order to determine if a defendant’s
conduct was done with the specific intent showing that he calculated his display of
a firearm to be alarming.” Poe maintained that the statute fails to give a reasonable
person guidance as to what specific conduct is prohibited, and the statute’s
deficiencies “prevent law enforcement from having clear guidance as to what
conduct in displaying a firearm is criminalized as being ‘a manner calculated to
alarm.’” Poe also argued that section 42.01(a)(8) has a chilling effect on public
displays of firearms as an exercise of First Amendment rights. In addition, Poe
contended that the statute violates the fundamental rights of persons to keep and
bear arms under the Second Amendment.
Poe attached three affidavits to his application. The affidavit of T. Edwin
Walker, Poe’s attorney, stated that Walker had done an internet search for protests
and activities involving open display of firearms for First Amendment purposes,
and he averred that the twenty-eight pages attached to his affidavit were true and
correct copies of the original news articles as posted on the Internet. Terry Louis
Holcomb averred in his affidavit that he is the Executive Director of Texas Carry,
3
Inc., a non-profit corporation that advocates for open carry of handguns. Holcomb
explained in the affidavit that “we plainly communicated to the Texas Legislature
that if they did not allow a vote on the bill for open carry of a handgun with a
concealed handgun license, . . . we would put on our long guns and carry them all
across Texas in protest of the restrictions on our handguns.” According to
Holcomb,
[t]he sole purpose of openly carrying rifles and shotguns is to express
our belief that people should be allowed to openly carry handguns.
We are attempting to educate the public not alarm them. We have no
intention to alarm anyone which is why all rifles and shotguns are
displayed in a safe[,] non-threatening manner.
Holcomb further averred that in Texas, there have been eighteen arrests for
openly carrying a rifle, shotgun, or “replica pre-1899 black powder pistol,” without
a single conviction. According to Holcomb, “[w]e are intimidated with threat of
arrest and told we cannot openly carry rifles, shotguns, and replica pre-1899 black
powder pistols because a person may find the mere display of them to be
alarming.” Christopher John Grisham averred in his affidavit that he is President
and Founder of Open Carry Texas (OCT), a non-profit gun rights group.
According to Grisham, “OCT members have been arrested more than two dozen
times for the lawful carry of their firearms openly as an expression of our mission
to educate Texans on gun rights and secure more meaningful legislation that
4
recognizes our right to keep and bear arms.” Grisham averred that “citizens can be
arrested for a mere complaint and claim that one is ‘alarmed’ and not because any
actual crime was committed.” According to Grisham, openly carrying long arms
and pre-1899 antique or replica revolvers is
immensely important as a [First] Amendment issue as it draws
attention and encourages dialogue on our efforts. No single method of
speech has been more successful for us than the open display of
firearms in a peaceful and respectful manner than carrying these long
arms. Signs and flags only draw attention to the protestor, not the
cause.
Grisham stated that “the law creates different standards depending on the
complainant’s beliefs about guns in public.”
In response to Poe’s application, the State asserted that three days after
Christmas 2013, during evening hours when Parkdale Mall was crowded, Poe
“harnessed and shouldered an AR-15 223 Caliber Assault Rifle [] and began
traversing the Mall. Mall patrons[] and store workers were horrified, and as a
result, many calls were made to 911.” 2 According to the State, when Beaumont
police officers approached Poe, Poe “immediately became belligerent with the
officers while espousing [his] Second Amendment Rights[,]” but Poe eventually
2
The State’s use of the language “assault rifle” to describe the AR-15 is, at
best, inaccurate. These rifles are not capable of being fired in the automatic mode;
the trigger must be pulled every time a bullet is fired. The “AR” designation
references ArmaLite, the firearms manufacturing company that originally designed
the AR-15.
5
gave the rifle to the officers. The State asserted that Poe revealed to the officers
that he was walking around the mall simply to exercise his Second Amendment
right. The State argued that section 42.01(a)(8) is not overly broad or
unconstitutionally vague, and asserted that Poe’s actions were “clearly calculated
to cause fear and panic.”
At the habeas hearing, Poe testified that he had served in the Army for four
years, and at the time of the alleged offense, he owned a firearms accessory store
called Golden Triangle Tactical, which was located in Parkdale Mall. Poe testified
that he commonly carried his rifle from his home to his place of business at the
mall. Poe testified that on the day of the incident in December 2013, he was
carrying the rifle across his back, and he had a bag of food in one hand and a drink
in the other hand. According to Poe, he was carrying the rifle in a safe manner, and
he was not threatening anyone or presenting the rifle in a threatening manner. Poe
testified that, based upon his experience in the military, whenever a threat is
anticipated, a rifle is carried in front of the body in what is called the “low ready”
stance “so we could bring it up to the high ready if we’re ready to engage.”
According to Poe, if someone were walking in anticipation of using his rifle, he
would not carry it across his back.
6
Poe explained that part of the reason he carries his rifle on his back is
because he believes he has a First Amendment right to do so to advocate for his
Second Amendment rights. According to Poe, whenever he is walking with his
rifle on his back, he is expressing his belief in the Second Amendment. Poe
testified that he also carries his rifle to protest restrictions on open carry of
handguns. Poe testified that Parkdale Mall is owned by a private company, and he
explained that prior to the incident that led to his being charged with disorderly
conduct, Parkdale Mall’s management and security guards had never told him not
to bring his rifle into the mall.
Terry Holcomb Sr. testified that he is the executive director of Texas Carry,
which he explained is “a Second Amendment gun rights policy group that works
with the legislature to enact removing barriers for our Second Amendment rights.”
Holcomb testified that he engages in First Amendment activities as an advocate for
firearms rights. According to Holcomb, some of Texas Carry’s First Amendment
activities involve walking while wearing long rifles or long shotguns. Holcomb
explained that the purpose of carrying guns in that manner was to protest Texas’s
lack of an open carry law for handguns, and people who were doing so were
anticipating that other people will see them. Holcomb testified that the purpose of
displaying the firearms in such a manner is not to cause alarm, but to “educate the
7
Texas citizens to the absurdity of our current laws.” According to Holcomb,
displaying a rifle on a sling across someone’s back or side is a safe, non-
threatening means of displaying the gun.
Holcomb testified that activists against gun rights sometimes use the
disorderly conduct statute against gun rights protesters by a practice called
“swatting.” Holcomb explained that swatting involves contacting law enforcement
and reporting that someone protesting by wearing a gun is about to rob a store,
waving the gun around, or doing something threatening. According to Holcomb,
although swatting is a common practice, no protester has been convicted under the
disorderly conduct statute. Holcomb testified, “we’re all very much aware that if
we try and express our protests [at the capitol in Austin] that they will arrest us.”
During cross-examination, Holcomb testified that someone exercising First
Amendment rights cannot falsely shout the word “fire” in a crowded theater or the
words “hijack” or “gun” on an airplane. Holcomb also explained that the owner of
private property can prohibit the carrying of a firearm on his property.
POE’S ISSUES
In his first issue, Poe argues that section 42.01(a)(8) of the Texas Penal Code
“is unconstitutionally vague pursuant to the First, Second, Fifth, and Fourteenth
Amendments to the United States Constitution.” In his second issue, Poe argues
8
that section 42.01(a)(8) is unconstitutionally overbroad. We address Poe’s issues
together.
“Whether a statute is facially constitutional is a question of law that we
review de novo.” Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). We
presume that a statute is valid and that the Texas Legislature did not act
unreasonably or arbitrarily. Id. at 14-15. “The burden normally rests upon the
person challenging the statute to establish its unconstitutionality.” Id. at 15.
“[W]hen the government seeks to restrict and punish speech based on its content,
the usual presumption of constitutionality is reversed.” Id. “Content-based
regulations (those laws that distinguish favored from disfavored speech based on
the ideas expressed) are presumptively invalid, and the government bears the
burden to rebut that presumption.” Id.
Before a statute will be invalidated on its face as overbroad, the overbreadth
must be real and substantial when “judged in relation to the statute’s plainly
legitimate sweep.” Id. A statute should not be invalidated for overbreadth merely
because it is possible to imagine some unconstitutional application. See In re Shaw,
204 S.W.3d 9, 15 (Tex. App.—Texarkana 2006, pet. ref’d). With respect to
vagueness, statutes are not necessarily unconstitutionally vague merely because the
words or terms employed in the statute are not specifically defined. See Engelking
9
v. State, 750 S.W.2d 213, 215 (Tex. Crim. App. 1988). When a statute does not
define the words used therein, we will give the words their plain meaning. See
Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim. App. 1999); see also Tex. Gov’t
Code Ann. § 311.011(a) (West 2013) (“Words and phrases shall be read in context
and construed according to the rules of grammar and common usage.”). A statute
will be invalidated if it fails to give a person of ordinary intelligence a reasonable
opportunity to know what conduct is prohibited. See State v. Holcombe, 187
S.W.3d 496, 499 (Tex. Crim. App. 2006). We will not invalidate a statute for
overbreadth “merely because it is possible to imagine some unconstitutional
applications.” In re Shaw, 204 S.W.3d at 15.
Because Poe makes a facial challenge to the statute, he must prove that the
statute is unconstitutional in every application, and that the statute could never be
constitutionally applied to any defendant under any set of facts or circumstances. 3
See State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013); Santikos v.
State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992). As previously discussed,
whether a statute is facially constitutional is a question of law that we review de
novo. Ex parte Lo, 424 S.W.3d at 14; Maloney v. State, 294 S.W.3d 613, 626 (Tex.
3
Poe has not made an ‘as-applied’ challenge; further, the factual
development of the evidence in the record before us is insufficient to allow us to
consider such a claim.
10
Crim. App. 2009). If we determine that there is a reasonable construction which
will render the statute constitutional, we must uphold the statute. Tarlton v. State,
93 S.W.3d 168, 175 (Tex. App. – Houston [14th Dist.] 2002, pet. ref’d).
Section 42.01(a)(8) provides as follows: “A person commits an offense if he
intentionally or knowingly . . . displays a firearm or other deadly weapon in a
public place in a manner calculated to alarm[.]” Tex. Penal Code Ann. §
42.01(a)(8). The plain wording of section 42.01(a)(8) provides that the punishable
conduct is the intentional and knowing display of a firearm in a public place, and
the actor must display the firearm “in a manner calculated to alarm[.]” Id.
(emphasis added). Section 42.01(a)(8) specifically includes a mens rea: it states the
person must act intentionally or knowingly when he displays a firearm in a public
place, and his displaying of the firearm must have been calculated to alarm. Id.
The disorderly conduct offense defined by subsection (a)(8) is the conduct of
displaying a firearm in a public place in a manner calculated to alarm. See id.
In this case, the charging instrument alleged that Poe “intentionally and
knowingly displayed a deadly weapon, namely a firearm, in a public place and in a
manner calculated to alarm[.]” We conclude that (1) the statute punishes conduct
rather than the content of speech alone, and (2) the statute bears a rational
relationship to the State’s legitimate and compelling interest in protecting its
11
citizens from potential harm. See Broadrick, 413 U.S. 601, 615 (1973); Ex parte
Woodall, 154 S.W.3d 698, 702 (Tex. App.—El Paso 2004, pet. ref’d) (holding that
ordinance restricting smoking bears a rational relationship to interest in protecting
general health, safety, and welfare); see also Ex parte Lo, 424 S.W.3d 10, 16-17
(noting the distinction between regulating speech versus regulating conduct).
Because section 42.01(a)(8) punishes conduct, we reject Poe’s argument that
we should analyze his appellate issues using the strict scrutiny standard of review.
Accordingly, we begin by presuming that the statute is valid, and that the
legislature did not act arbitrarily or unreasonably in enacting the statute. Ex parte
Lo, 424 S.W.3d at 15.
As previously discussed, Poe asserts that the statute is “unconstitutionally
vague because it does not give a reasonable person guidance as to what specific
conduct is prohibited.” Poe complains that the word “alarm” is “inherently
subjective[,]” and he argues that “there is a great degree of variance of human
perception of which conduct is alarming[.]” We begin by looking to the language
of the statute and giving terms their plain meaning. See Parker, 985 S.W.2d at 464;
see also Tex. Gov’t Code Ann. § 311.011(a).
Although the statute does not define the terms “manner[,]” “calculated[,]” or
“alarm[,]” we conclude that those words have commonly known and accepted
12
usage and meaning. “Manner” is defined as the “mode or method in which
something is done or happens.” WEBSTER’S THIRD NEW INT’L DICTIONARY 1376
(2002). “Calculated” is defined as “planned or contrived so as to accomplish a
purpose or achieve an effect: thought out in advance: deliberately planned[.]” Id. at
315. “Alarm” is defined as “fear or terror resulting from a sudden sense of
danger[.]” Id. at 48. We conclude that the statute describes the criminal offense
with sufficient definiteness that ordinary people can understand what conduct is
prohibited. See Holcombe, 187 S.W.3d at 499. The statute’s requirements that the
display of a firearm be done intentionally or knowingly and in a manner calculated
to alarm take the context of the actor’s speech into question and require the State to
meet a high burden of proving the requisite mental state. We conclude that the
statute is reasonably related to the State’s legitimate interest in protecting the
public from harm. Poe has not satisfied his burden to prove that the statute is
unconstitutionally vague, and we conclude that the statute provides fair notice of
the prohibited conduct.
The United States Supreme Court has held that the overbreadth doctrine
involves balancing the effects of the statute on protected speech with the otherwise
legitimate and necessary prohibition of antisocial behavior that has been made
criminal. See United States v. Williams, 553 U.S. 285, 292 (2008). The United
13
States Supreme Court held as follows: “In order to maintain an appropriate
balance, we have vigorously enforced the requirement that a statute’s overbreadth
be substantial, not only in an absolute sense, but also relative to the statute’s
plainly legitimate sweep. Invalidation for overbreadth is ‘strong medicine’ that is
not to be ‘casually employed.’” Id. (internal citations omitted). Section 42.01(a)(8)
unambiguously provides that a person is prohibited from “intentionally or
knowingly” displaying a weapon in a public place “in a manner calculated to
alarm[.]” Tex. Penal Code Ann. § 42.01(a)(8).
We conclude that although there clearly are constitutional rights to bear arms
and to express oneself freely, there is no constitutionally protected right to display
a firearm in a public place in a manner that is calculated to alarm. In addition, we
note that Poe’s own evidence indicates that the statute is rarely employed against
protesters and has not resulted in any convictions of protesters who are exercising
their First and Second Amendment rights. The statute’s plainly legitimate sweep
bears a rational relationship to the State’s interest in public safety and welfare.
Accordingly, we overrule Poe’s issues and affirm the trial court’s order denying
Poe’s application for writ of habeas corpus.
14
AFFIRMED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on December 23, 2015
Opinion Delivered April 20, 2016
Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
15
CONCURRING OPINION
In this pretrial habeas proceeding, Poe challenges section 42.01(a)(8) 1 of the
disorderly conduct statute and argues that the statute is facially unconstitutional
and unconstitutionally vague. I agree with the majority’s conclusion to overrule
Poe’s facial constitutional challenges and his challenge that the statute is
unconstitutionally vague. I write separately from the majority to clarify the basis
for my conclusion that Poe has failed to meet his heavy burden to establish a facial
challenge to the statute.
Facial Constitutional Challenges
A defendant may file a pretrial application for writ of habeas corpus in order
to raise a facial challenge to the constitutionality of the statute under which the
defendant is charged. Ex parte Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App.
2014). Whether a statute is facially unconstitutional is a question of law subject to
de novo review. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When
the constitutionality of a statute is attacked, a court usually must presume that the
1
Tex. Penal Code Ann. § 42.01 (a)(8) (West Supp. 2015) (see Majority
Opinion at n.1 for further reference). The relevant statutory language is as follows:
§ 42.01. Disorderly Conduct
(a) A person commits an offense if he intentionally or knowingly:
...
(8) displays a firearm or other deadly weapon in a public place in a
manner calculated to alarm[.]
1
statue is valid and that the Legislature has not acted unreasonably or arbitrarily. Id.
at 15. With respect to constitutional provisions other than the First Amendment, a
facial challenge to the constitutionality of a statute will succeed only if it is shown
that the statute is unconstitutional in all of its applications. State v. Johnson, 475
S.W.3d 860, 864 (Tex. Crim. App. 2015). With respect to facial challenges that
pertain to an activity or speech protected by the First Amendment, the challenger
may also bring a “substantial overbreadth” challenge. United States v. Stevens, 559
U.S. 460, 473 (2010). Under the “substantial overbreadth” doctrine, the statute
may be invalidated as overbroad if “a substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Id.
The “substantial overbreadth” challenge may be made when a statute restricts or
punishes speech based upon its content. Ex parte Lo, 424 S.W.3d at 15. There is no
recognized application of the “substantial overbreadth” doctrine to any challenge
outside of certain First Amendment challenges. McGruder v. State, 2016 Tex.
Crim. App. LEXIS 36, *5 (Tex. Crim. App. 2016) (citing United States v. Salerno,
481 U.S. 739, 745 (1987); Briggs v. State, 789 S.W.2d 918, 923 (Tex. Crim. App.
1990); State ex rel. Lykos v. Fine, 330 S.W.3d at 904, 909 & n. 13. (Tex. Crim.
App. 2011)).
2
The overbreadth doctrine is “strong medicine” that is used “sparingly and
only as a last resort.” Johnson, 475 S.W.3d at 865 (citing New York State Club
Ass’n v. City of New York, 487 U.S. 1, 14 (1988); Broadrick v. Oklahoma, 413
U.S. 601, 613 (1973); Ex parte Thompson, 442 S.W.3d at 349)). When making a
“substantial overbreadth” challenge under the First Amendment, the challenger
must establish that the statute as written “prohibit[s] a substantial amount of
protected expression, and the danger that the statute will be unconstitutionally
applied must be realistic and not based on ‘fanciful hypotheticals.’” Id. (footnotes
omitted) (quoting Stevens, 559 U.S. at 485 (Alito, J., dissenting)). Therefore, Poe
must demonstrate “‘that a substantial number of instances exist in which the Law
cannot be applied constitutionally.’” See id. (quoting New York Club Ass’n, 487
U.S. at 14). “The Supreme Court generally does not apply the ‘strong medicine’ of
overbreadth analysis where the parties fail to describe the instances of arguable
overbreadth of the contested law.” Id. (quoting, Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449-450 (2008)).
3
Poe’s First Amendment Challenge
Poe argues that section 42.01(a)(8) is facially unconstitutional because the
statute infringes upon his First Amendment 2 right to freedom of speech. While I
agree with the majority that as written section 42.01(a)(8) appears to regulate
conduct rather than speech, the display of a weapon could, in some instances, be
connected to the exercise of free speech. Expressive conduct may, in some
instances, run afoul of the First Amendment, and some statutes that prohibit such
conduct may indeed be facially unconstitutional. See, United States v. Eichman,
496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397 (1989); State v. Johnson, 475
S.W.3d at 882 (“[T]he Texas flag-destruction statute, by its text and in actual fact,
prohibits a substantial amount of activity that is protected by the First Amendment,
judged in relation to its legitimate sweep. Consequently, we hold that the Texas
flag-destruction statute is facially invalid because it is unconstitutionally overbroad
in violation of the First Amendment.”).
On the other hand, not all types of speech or expressive conduct are
protected by the First Amendment. See Chaplinsky v. New Hampshire, 315 U.S.
568, 572 (1942) (“fighting words” constitute “no essential part of any exposition of
2
“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.” U.S. CONST. amend. I.
4
ideas,” and therefore are not protected by the First Amendment); R.A.V. v. City of
St. Paul, 505 U.S. 377, __(1992) (Scalia, J., writing for the majority explained that
“the exclusion of ‘fighting words’ from the scope of the First Amendment simply
means that, for purposes of that Amendment, the unprotected features of the words
are, despite their verbal character, essentially a ‘nonspeech’ element of
communication. Fighting words are thus analogous to a noisy sound truck: Each is,
as Justice Frankfurter recognized, a ‘mode of speech,’ [citation omitted] both can
be used to convey an idea; but neither has, in and of itself, a claim upon the First
Amendment.”).
In R.A.V. v. City of St. Paul, the Supreme Court examined a statute that
prohibited certain expressive conduct that included racially motivated cross
burning or displays and behavior that the Supreme Court described as
“reprehensible.” 505 U.S. at 396. Therein, several teenagers, including the
petitioner, allegedly assembled and burned a cross inside the fenced yard of a
family that lived across the street from the petitioner. The City could have charged
the petitioner with several different criminal violations, but petitioner was charged
with a violation of the St. Paul “Bias-Motivated Crime Ordinance,” St. Paul,
Minn., Legis. Code § 292.02 (1990). According to the majority, even though the
expression that was reached by the statute might be proscribable under the
5
“fighting words” doctrine, the court “nonetheless conclude[d] that the ordinance is
facially unconstitutional in that it prohibits otherwise permitted speech solely on
the basis of the subjects the speech addresses.” Id. at 381.
Nevertheless, when the intent as outlined within a statute “is to do something
that, if accomplished, would be unlawful and outside First Amendment protection,
such as the intent to threaten or intimidate, such an intent might help to eliminate
First Amendment concerns.” Ex parte Thompson, 442 S.W.3d at 338. For example,
in Scott v. State, 322 S.W.3d 662, 669-70 (Tex. Crim. App. 2010),3 the Court of
Criminal Appeals upheld the harassment statute section 42.07(a)(4), and concluded
that the statute is not unconstitutionally vague and that it does not implicate the
free speech guarantee under the First Amendment, as it is directed only at someone
who with the specific intent to inflict emotional distress, repeatedly uses the
telephone to invade the personal privacy of another person in a manner reasonably
likely to inflict emotional distress. In contrast, in Ex parte Thompson, the Court of
Criminal Appeals struck down the “Improper Photography or Visual Recording”
3
In Wilson v. State, 448 S.W.3d 418, 423 (Tex. Crim. App. 2014), the Court
of Criminal Appeals disavowed a footnote contained in Scott which related to the
term “repeated,” and the Court provides further guidance on use of the phrase
“repeated telephone communications.” Justice Keller, joined by Justice Johnson,
indicates that in light of the “abandonment of some of the rationales in Scott” the
Court should, “when the issue is raised again, re-evaluate” its holding in Scott. Id.
at 426-27 (Keller, J., concurring).
6
statute because “to the extent it proscribes the taking of photographs and the
recording of visual images, [it] is unconstitutional on its face in violation of the
Free Speech clause of the First Amendment.” See 442 S.W.3d at 330, 351. The
photography statute expressly covered all photographs other than those taken in a
bathroom or private dressing room, and it was therefore “designed as a catch-all, to
reach other situations in which photography and visual recordings ought to be
prohibited.” Id. at 349.
In comparison to the “Bias Motivated” statute in R.A.V. v. City of St. Paul,
or the flag destruction statutes in Texas v. Johnson and State v. Johnson, and the
photography statute in Ex parte Thompson, the statute that Poe is charged under is
more analogous to the harassment statute in Scott v. State. Section 42.01(a)(8) does
not prohibit a person from using a symbol as part of expressive conduct, does not
prohibit “otherwise permitted speech solely on the basis of the subjects the speech
addresses,” and it does not act as a catch-all provision to reach expressive conduct.
Rather, the plain language in section 42.01(a)(8) prohibits conduct that, if
accomplished, would be unlawful and outside First Amendment protection, in that
it criminalizes an intentional or knowing act that is done in a manner calculated to
alarm, and would not be substantially protected by the First Amendment.
Accordingly, I agree with the majority that the statute as written regulates conduct
7
and not speech. See generally State v. Paquette, No. 09-15-00361-CR, 2016 Tex.
App. LEXIS 1858, at *7 (Tex. App.—Beaumont Feb. 24, 2016, no pet.)
(discussing online solicitation provision and rejecting overbreadth challenge to
Tex. Penal Code section 33.021(c) under the First Amendment); Ex parte
Victorick, No. 09-13-00551-CR, 2014 Tex. App. LEXIS 5429, at **6-18 (Tex.
App.—Beaumont May 21, 2014, pet. ref’d) (mem. op., not designated for
publication), cert. denied, Victorick v. Texas, 135 S. Ct. 1557, 191 L. Ed. 2d 638
(2015).
Poe has failed to establish that the statute in question prohibits a substantial
amount of activity that is protected by the First Amendment, judged in relation to
its plainly legitimate sweep. Accordingly, I agree with the decision of the majority
to overrule Poe’s First Amendment challenge to the statute. We expressly do not
decide whether the statute is unconstitutional as applied to Poe.4
4
A facial challenge to the constitutionality of a statute must generally assert
that there are no factual circumstances under which the statute would be
constitutional. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 909 (Tex. Crim.
App. 2011). When making a facial challenge, evidence regarding how the statute
operates in practice is irrelevant. Id. at 908-09. In a facial challenge, we consider
how the statute is written rather than how it operates or is applied in practice.
Salinas v. State, 464 S.W.3d 363, 367 (Tex. Crim. App. 2015). The Court of
Criminal Appeals has cautioned against the use of pretrial writs to adjudicate
certain constitutional challenges. See Ex parte Weise, 55 S.W.3d 617, 620 (Tex.
Crim. App. 2001) (pretrial habeas may not be available for “as applied” challenge
but may be available when facial challenge to constitutionality of statute is made);
8
Poe’s Second Amendment Challenge
With respect to Poe’s challenge under the Second Amendment, in my
opinion, the Court must analyze this challenge separately from the First
Amendment because the “substantial overbreadth” doctrine would not apply to
Poe’s Second Amendment challenge.
The framers of the United States Constitution expressly recognized the right
of the people to “keep and bear [a]rms[.]” See U.S. CONST. amend. II (“A well
regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.”). The Second Amendment
extends to and protects an individual right to keep and bear arms and the Second
Amendment is fully applicable to the States. Caetano v. Massachusetts, No. 14-
10078, 2016 U.S. LEXIS 1862, at **1-2 (March 21, 2016) (per curiam) (citing
District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of
Chicago, 561 U.S. 742, 750 (2010)).
see also Ex parte Perry, No. PD-1067-15, 2016 Tex. Crim. App. LEXIS 43, at
**7-8 (Tex. Crim. App. Feb. 24, 2016) (explaining in further detail instances
where a pretrial habeas challenge might be available for particular “as-applied”
challenges). I express no opinion as to an “as-applied” challenge, and note that a
party generally has a different burden to establish an “as-applied” challenge. See
Combs v. STP Nuclear Operating Co., 239 S.W.3d 264, 272 (Tex. App.—Austin
2007, pet. denied) (“[A] party making an as-applied challenge need only show that
the statute is unconstitutional because of the manner in which it was applied in a
particular case.” An as-applied challenge is “fact specific[.]”).
9
In Heller, the United States Supreme Court held that the District of
Columbia’s statute that prohibited the possession of handguns in the home, as well
as its provision requiring handguns to be inoperable if kept in the home, violated
the right guaranteed to the individual by the Second Amendment to the Federal
Constitution. 554 U.S. at 635. Nevertheless, as stated by Justice Scalia in the
Heller majority opinion, the fundamental right secured by the Second Amendment
is not unlimited.
Like most rights, the right secured by the Second Amendment is not
unlimited. From Blackstone through the 19th-century cases,
commentators and courts routinely explained that the right was not a
right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose. [] For example, the majority of
the 19th-century courts to consider the question held that prohibitions
on carrying concealed weapons were lawful under the Second
Amendment or state analogues. [] Although we do not undertake an
exhaustive historical analysis today of the full scope of the Second
Amendment, nothing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons and
the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of
arms.
Id. at 626-27 (internal citations and footnote omitted).
The Heller majority explained that the ruling was consistent with the earlier
case of United States v. Miller, 307 U.S. 174 (1939). See id. at 621-23. According
to Heller, “Miller stands only for the proposition that the Second Amendment
10
right, whatever its nature, extends only to certain types of weapons.” Id. at 623. In
Miller, the defendant was charged with illegally possessing a short-barreled
shotgun and the Supreme Court rejected his challenge that the state statute
prohibiting the possession of such weapons was in violation of the right to “keep
and bear arms” guaranteed by the Second Amendment. 307 U.S. at 175-77, 182-
83. Nevertheless, it would be wrong to conclude that the scope of the Second
Amendment applies only to those weapons useful in warfare. As noted by the
Heller majority, there may be some weapons like machine guns, for example, that
would be useful in warfare but are not typically possessed by law abiding citizens
for law abiding purposes. 554 U.S. at 624. The majority concluded that the
operative clause in the Second Amendment, “the right of the people to keep and
bear Arms, shall not be infringed[,]” is not limited by the introductory or prefatory
clause which references a “well regulated Militia[.]” See id. at 577-78. “[T]he
Second Amendment extends, prima facie, to all instruments that constitute
bearable arms, even those that were not in existence at the time of the founding.”
Id. at 582. However, the majority emphasized that the right to “keep and bear
arms” does not import a right to “keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose.” See id. at 626.
11
In 2010, the United States Supreme Court held that the Second
Amendment’s protections apply fully to the states. McDonald, 561 U.S. at 750. In
McDonald, the Supreme Court examined whether the Second Amendment applied
to a Chicago law that banned handguns in the home. Id. at 750-53. The McDonald
majority, authored by Justice Alito, stated:
Two years ago, in District of Columbia v. Heller, 554 U.S. 570, 128 S.
Ct. 2783, 171 L. Ed. 2d 637 (2008), we held that [1] the Second
Amendment protects the right to keep and bear arms for the purpose
of self-defense, and we struck down a District of Columbia law that
banned the possession of handguns in the home. The city of Chicago
(Chicago or City) and the village of Oak Park, a Chicago suburb, have
laws that are similar to the District of Columbia’s, but Chicago and
Oak Park argue that their laws are constitutional because the Second
Amendment has no application to the States. We have previously held
that [2] most of the provisions of the Bill of Rights apply with full
force to both the Federal Government and the States. Applying the
standard that is well established in our case law, we hold that [3] the
Second Amendment right is fully applicable to the States.
Id. at 749-50. The Supreme Court again noted, as previously discussed in Heller,
the Second Amendment right to “keep and bear arms” is not unlimited and again
referenced the “longstanding” regulations discussed in Heller. McDonald, 561 U.S.
at 786 (citing Heller, 554 U.S. at 626-27).
In Jackson v. City and County of San Francisco, 135 S. Ct. 2799 (2015), in a
7-2 decision, the Supreme Court denied the petition for writ of certiorari wherein
the petitioners sought to enjoin a San Francisco Police Code provision that
12
provides that no person shall keep a handgun within a residence owned or
controlled by that person unless the gun is stored in a locked container or with a
trigger lock, as well as other limitations. In a dissent authored by Justice Thomas
and joined by Justice Scalia, the dissent argued that the lower appellate court’s
decision was questionable, and the dissent would have granted the petition in light
of Heller. 135 S. Ct. at 2799-2802 (Thomas, J., dissenting).
In Friedman v. City of Highland Park, 136 S. Ct. 447 (2015), in a 7-2
decision, the Supreme Court denied the petition for writ of certiorari and refused to
review the ruling of the Seventh Circuit Court of Appeals upholding an ordinance
in the City of Highland Park, Illinois, which included a ban on semiautomatic
firearms such as the AR-15 rifle. In a dissent once again authored by Justice
Thomas and joined by Justice Scalia, the dissent argued that the ban was directly in
violation of Heller, and the dissent would have granted the petition. 136 S. Ct. at
447 (Thomas, J. dissenting). The dissent explained that law-abiding citizens carry
and possess such weapons for self-defense and target shooting, and it should not
matter whether law-abiding citizens might have other firearms they could use for
such purposes. Id. at 448-50. Furthermore, the dissent noted there is a distinction
between such firearms and sawed-off shotguns, which are not commonly used by
law abiding citizens for lawful purposes. Id. at 449. The dissent stated “[i]f a broad
13
ban on firearms can be upheld based on conjecture that the public might feel safer
(while being no safer at all), then the Second Amendment guarantees nothing.” Id.
Most recently, in Caetano v. Massachusetts, in a per curiam decision, the
Supreme Court followed Heller, and concluded that the Second Amendment
applied to a Massachusetts law prohibiting the possession of stun guns. 2016 U.S.
LEXIS 1862, at **1-2. The Supreme Court held that the Second Amendment’s
protections include the right of an individual to carry a stun gun for self-defense.
Id. at **2-3. The Supreme Court reaffirmed its previous analysis in Heller that the
Second Amendment protects the individual right to “keep and bear arms” even
with respect to weapons like stun guns that were not traditionally used in warfare.
Id.; Heller, 554 U.S. at 624-25.
Heller, when read in conjunction with Caetano, confirms that the Second
Amendment right to keep and bear arms necessarily includes the individual right of
law-abiding citizens to keep and bear arms (firearms and other weapons such as
“stun-guns”) for self-defense. See Caetano, 2016 U.S. LEXIS 1862, at **2-3;
McDonald, 561 U.S. at 749-50; Heller, 554 U.S. at 635. 5 Nevertheless, we also
5
Justice Thomas has also acknowledged that firearms such as “modern
sporting rifles (e.g., AR-style semiautomatic rifles)” are owned by many Americans
“for lawful purposes like self-defense, hunting, and target shooting.” Friedman v.
City of Highland Park, 136 S. Ct. 447, 447-50 (2015) (Thomas, J. dissenting). In
the case at bar, Poe was carrying an AR-15 rifle.
14
know that the Second Amendment right to “keep and bear arms” does not import a
right to “keep and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose.” Heller, 554 U.S. at 626. Heller expressly did not “undertake an
exhaustive historical analysis [] of the full scope of the Second Amendment[.]” Id.
Similarly, in the matter now before us, this Court need not engage in an exhaustive
discussion regarding the full scope of the Second Amendment. Rather, the issue
before us today is whether section 42.01(a)(8) of the disorderly conduct statute is
facially unconstitutional under the Second Amendment.
The statutory provision that Poe challenges prohibits a person from
“intentionally or knowingly . . . display[ing] a firearm or other deadly weapon in a
public place in a manner calculated to alarm[.]” “[T]o prevail on a facial
challenge” under the Second Amendment, Poe had the burden to “establish that the
statute always operates unconstitutionally in all possible circumstances.” See State
v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). Poe has failed to
establish that the statute on its face as written always operates in all possible
circumstances to unconstitutionally infringe upon the rights guaranteed under the
Second Amendment. See Salinas v. State, 464 S.W.3d 363, 367 (Tex. Crim. App.
2015). Therefore, I agree with the decision of the majority to overrule Poe’s facial
15
challenge under the Second Amendment. We expressly do not decide whether the
statute is unconstitutional as applied to Poe. 6
Poe’s Challenge under the Fifth Amendment and State Constitution
Poe fails to include any argument in his brief pertaining to his allegations
that the statute is facially unconstitutional pursuant to the Fifth Amendment to the
United States Constitution and he fails to include any specific argument regarding
his claim under Article I, Sections 8, 10, 19 and 23 of the Texas Constitution.
The “brief must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.” Tex. R. App. P.
38.1(i). Conclusory arguments that cite no authority present nothing for our
review. See Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011); Vuong v.
State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992); Atkins v. State, 919 S.W.2d
770, 774-75 (Tex. App.—Houston [14th Dist.] 1996, no pet.). Accordingly, I
would also overrule Poe’s challenge with respect to the Fifth Amendment, and
Article I, Sections 8, 10, 19 and 23 of the Texas Constitution.
6
See n.3.
16
I concur in the majority’s decision to overrule Poe’s issues and to affirm the
trial court’s order denying Poe’s application for writ of habeas corpus.
_____________________________
LEANNE JOHNSON
Justice
Concurrence Delivered
April 20, 2016
17