State v. Charlie Riley ( 2018 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
___________________
NO. 09-17-00124-CR
___________________
THE STATE OF TEXAS, Appellant
V.
CHARLIE RILEY, Appellee
__________________________________________________________________
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 16-06-07316-CR
__________________________________________________________________
MEMORANDUM OPINION
In June 2016, a grand jury indicted several of the members of the
Montgomery County Commissioners Court, including Charlie Riley, for conspiring
to violate the Texas Open Meetings Act (TOMA). See Tex. Gov’t Code Ann. §
551.143 (West 2017). In pertinent part, Riley’s indictment alleges he knowingly
conspired to circumvent TOMA over a two-week period that began on August 11,
2015, by “meeting in a number less than a quorum for the purpose of secret
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deliberations” regarding “the contents of the potential structure of a November 2015
Montgomery County Road Bond[.]” Subsequently, Riley filed a motion with the trial
court asking the court to dismiss his indictment.1 Riley’s motion asserts that section
551.143 of TOMA is unconstitutional on its face. According to the arguments that
are presented in the motion, the conspiracy provisions that are in TOMA violate the
rights of elected public officials to engage in free speech and are unconstitutional
1
Technically, Riley filed a “Motion to Join Defendant Craig Doyal’s Motion
to Dismiss the Indictment,” which Doyal filed in trial court cause number 16-06-
07315-CR. However, the cases were not filed in the same trial court cause numbers,
the record does not contain an order granting Riley’s motion to join Doyal’s motion,
and the record does not show that Riley’s case was consolidated with the case the
State filed against Doyal. Riley’s motion states that he “adopts and joins” Doyal’s
motion, and Riley advanced no arguments in his motion separate from those
presented by Doyal in his motion to dismiss. Doyal’s motion to dismiss was filed in
cause number 16-06-07315-CR, a case that is styled The State of Texas v. Craig
Doyal. Nonetheless, the transcript from the hearing the trial court conducted on the
motion to dismiss reflects that the trial judge who presided over Riley’s case also
presided over the case against Doyal. The trial court conducted a joint hearing on
Riley’s and Doyal’s motions. During the hearing, the State did not complain that the
Code of Criminal Procedure does not authorize a defendant in one case to file a
motion adopting motions filed by another defendant in another case. The transcript
of the motion to dismiss hearing reflects that the attorneys for Doyal, Riley, and
Marc Davenport, another defendant who the State alleged engaged in the conspiracy,
were present and participated in the hearing on the requests these defendants filed to
dismiss their indictments. The attorneys for the defendants represented that they
were acting together and calling witnesses together on their respective motions.
Because the trial court granted Riley’s motion, the trial court’s decision appears to
have been based on the grounds that Doyal presented in his motion, as Riley’s
motion did not advance any grounds that were separate from the grounds that Doyal
advanced in his motion.
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restrictions on their rights because the provisions in TOMA are overly broad. See
U.S. CONST. amend. I (prohibiting Congress from making a law that abridges the
freedom of speech); U.S. CONST. amend. XIV (prohibiting a State from making or
enforcing any law that abridges the privileges or immunities of a citizen of the
United States); Tex. Gov’t Code Ann. § 551.143 (making it an offense to conspire
to circumvent TOMA). Riley’s motion further asserts that because the conspiracy
provisions in TOMA fail to sufficiently define the conduct that is prohibited by the
Act, the provisions are vague and confusing such that the ordinary citizen cannot
determine how he can avoid violating the statute.
In State v. Doyal, an opinion we handed down today, the Court overturned the
trial court’s order granting Craig Doyal’s motion to dismiss because Doyal failed to
meet his burden to establish that the conspiracy provisions in TOMA always operate
unconstitutionally under all possible circumstances. No. 09-17-00123-CR, slip op.
(Tex. App.—Beaumont Feb. 7, 2018, no pet. h.), available at http://
www.search.txcourts.gov/DocketSrch.aspx?coa=coa09. For the same reasons, we
also hold that Riley failed to meet his burden to establish that the conspiracy
provisions at issue always operate unconstitutionally under all possible
circumstances. See id. For the reasons that we explained in Doyal, we reverse the
order the trial court signed granting Riley’s motion to dismiss. Id. at 11-14.
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In remanding Riley’s case for further proceedings, we recognize that Riley
did not ask the trial court to consider if section 551.143 of TOMA operated
unconstitutionally “as applied” to the facts and circumstances of his particular case.
Consequently, the facts and circumstances that led to the indictments of
Montgomery County’s elected officials were not at issue in this appeal, which
concerned only the much broader question of whether the provision in the statute
that Riley challenged always operated unconstitutionally under all possible
circumstances. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim.
App. 2011) (explaining that “as applied” challenges to the constitutionality of a
statute require the facts of the case to be developed, so such challenges “cannot be
properly raised by a pretrial motion to quash the charging instrument”).
We also note the very high bar that defendants face when they claim that a
statute is facially invalid. The United States Supreme Court has explained: “A facial
challenge to a legislative Act is, of course, the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists
under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745
(1987); see also McGruder v. State, 483 S.W.3d 880, 883 (Tex. Crim. App. 2016)
(explaining that to prevail on a facial challenge, the defendant is required to establish
that the statute always operates unconstitutionally with respect to all possible
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circumstances). Courts strive to avoid sustaining facial invalidity challenges because
granting such claims allows a court to nullify a legislative act without the benefit of
a record to establish what the defendant did to allegedly violate a statute. See
Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450-
51 (2008) (noting that facial challenges are disfavored for several reasons,
explaining that they often rest on speculation, run contrary to the principles of
judicial restraint, and threaten to short circuit the democratic process). The Texas
Supreme Court also indicates that courts should avoid granting motions claiming
that statutes are facially invalid “‘for reasons relating both to the proper functioning
of courts and to their efficiency[.]’” King St. Patriots v. Tex. Democratic Party, 521
S.W.3d 729, 737 (Tex. 2017) (quoting Bd. of Trs. of the State Univ. of N.Y. v. Fox,
492 U.S. 469, 485 (1989)). In other words, the courts have a judicial preference
requiring “the lawfulness of the particular application of the law” to “be decided
first[,]” a process that in criminal cases nearly always requires a trial. Id. at 737-38.
While we have concluded that Riley failed to meet his burden of proving his
facial invalidity and vagueness claims, we have neither considered nor is it
appropriate at this point for us to consider whether section 551.143 is invalid “as
applied.” Consequently, this opinion cannot be interpreted as any indication
regarding this Court’s views regarding the validity of the allegations that are in
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Riley’s indictment. We cannot overemphasize that individuals charged with crimes,
including elected officials, are presumed innocent prior to trial. See Tex. Code Crim.
Proc. Ann. art 38.03 (West Supp. 2017).2
We sustain the State’s appellate issues, reverse the trial court’s order
dismissing Riley’s indictment, and remand the cause to the trial court for further
proceedings consistent with the Court’s opinion.
REVERSED AND REMANDED.
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HOLLIS HORTON
Justice
Submitted on January 24, 2018
Opinion Delivered February 7, 2018
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
2
Article 38.03 of the Code of Criminal Procedure provides:
All persons are presumed to be innocent and no person may be
convicted of an offense unless each element of the offense is proved
beyond a reasonable doubt. The fact that he has been arrested,
confined, or indicted for, or otherwise charged with, the offense gives
rise to no inference of guilt at his trial.
Tex. Code Crim. Proc. Ann. art. 38.03 (West Supp. 2017).
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