Ex Parte James Richard "Rick" Perry ( 2015 )

ACCEPTED
03-15-00063-CR
5890589
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/30/2015 6:37:47 PM
JEFFREY D. KYLE
CLERK
BOTSFORD & ROARK
1307 WEST AVENUE
AUSTIN, TEXAS 78701
www.davidbotsfordlaw.com FILED IN
3rd COURT OF APPEALS
David L. Botsford** AUSTIN,
Brian J. RoarkTEXAS
Telephone: (512) 479-8030 Telephone: (512) 476-1900
Telecopier: (512) 479-8040 6/30/2015 6:37:47
Telecopier: (512) PM
479-8040
E-Mail: DBotsford@aol.com JEFFREY
E-Mail: D. KYLE
Brian@brianroark.com
Clerk
_____________________________
*Board Certified in Criminal Law Frank Maloney, Of Counsel*
**Board Certified in Appellate Criminal Law Woody Roark, Of Counsel
Texas Board of Legal Specialization
June 30, 2015
Mr. Jeffrey D. Kyle
Clerk, Third Court of Appeals
P.O. Box 12547
Austin, Texas 78711
Re: Ex parte James Richard "Rick" Perry; No. 03-15-00063-CR
Dear Mr. Kyle:
Governor Perry submits this letter to bring to the Court's attention a recently decided
U.S. Supreme Court decision that unambiguously repudiates one of the State's essential
theories in this case. That decision, Johnson v. United States, 576 U.S.___ (No. 13-7120,
June 26, 2015), is available at http://www.supremecourt.gov/opinions/14pdf/13-7120_p86b.pdf, and
Governor Perry requests that this letter be circulated to Justices Puryear, Pemberton and
Field.
In Johnson, as a matter of federal constitutional law, the Supreme Court expressly
repudiated a key argument made by the dissent (and by the State in this case) – that "a statute
is void for vagueness only if it is vague in all its applications." Slip Op. at 11. The Court
recognized some "statements" in prior cases that "could be read to suggest otherwise, [but]
our holdings contradict the theory that a vague provision is constitutional merely because
there is some conduct that clearly falls within the provision's grasp." Slip Op. at 11
(emphasis in original). Analogously, the Court explained, it had "deemed void for vagueness
a law prohibiting people on sidewalks from ``conduct[ing] themselves in a manner annoying
to persons passing by' – even though spitting in someone's face would surely be annoying."
Slip Op. at 11 (citing Coates v. City of Cincinnati, 402 U.S. 611 (1971)).
Johnson thus alters the analysis which must be applied to Governor Perry's Issues II
and VII(A), which address the vagueness of the statutory scheme upon which Count II is
premised (i.e., Section 36.03(a)(1), given the definition of coercion contained in Section
1.07(a)(9)(F)). Significantly, the Supreme Court's vagueness jurisprudence now unmistakably
rejects the State's reliance upon Bynum v. State, 767 S.W.2d 767, 774 (Tex. Crim. App. 1989)
for the proposition that "[w]hen a statute does not implicate constitutionally protected
conduct, a reviewing court should sustain the vagueness challenge only if the statute is
impermissibly vague in all its applications." State's Brief at 23-24 & n.58. Of course,
Section 36.03(a)(1) does implicate "constitutionally protected conduct," but Johnson makes
clear that statutes can and must be invalidated even when some application of a vague statute
might be clearly permissible – as with the statute about "annoying" conduct in Coates that
the Supreme Court referenced in Johnson.
Respectfully submitted,
/s/ David L. Botsford
cc:
Mr. Michael McCrum
Via Email Only
Mr. David Gonzalez
Via Email Only
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