the State of Texas v. Luis Fernando Zuniga ( 2022 )

Reversed and Remanded in No. 14-21-00757-CR, Reversed and Rendered in
No. 14-21-00758-CR, and Opinion filed December 13, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00757-CR
NO. 14-21-00758-CR
THE STATE OF TEXAS, Appellant
V.
LUIS FERNANDO ZUNIGA, Appellee
On Appeal from the County Criminal Court at Law No. 7
Harris County, Texas
Trial Court Cause Nos. 2336003 & 2386601
OPINION
In these appeals from two separate judgments granting habeas corpus relief,
the question presented is whether the applicant carried his burden of showing that a
statute was unconstitutionally vague on its face. The trial court concluded that the
applicant satisfied his burden. We disagree with that conclusion and reverse both of
the trial court’s judgments.
BACKGROUND
These appeals concern Section 545.157 of the Texas Transportation Code,
which is otherwise known as the Move Over Act. See Act effective Sept. 1, 2003,
78th Leg., R.S., ch. 327, § 1, 2003 Tex. Gen. Laws 1401, 1401. The critical portions
of the Act provide as follows:
(a) This section applies only to . . . a stationary authorized emergency
vehicle using visual signals . . . ;
(b) On approaching a vehicle described by Subsection (a), an operator,
unless otherwise directed by a police officer, shall:
(1) vacate the lane closest to the vehicle when driving on a
highway with two or more lanes traveling in the direction of
the vehicle; or
(2) slow to a speed not to exceed:
(A) 20 miles per hour less than the posted speed limit
when the posted speed limit is 25 miles per hour or
more; or
(B) five miles per hour when the posted speed limit is
less than 25 miles per hour.
The typical penalty for a violation of the Act is just a fine, but when a violation
results in bodily injury, the violator can face criminal liability for a Class B
misdemeanor, which carries a maximum punishment of six months’ confinement
and a fine of $2,000. See Tex. Transp. Code § 545.157(c); Tex. Penal Code § 12.22.
Zuniga was criminally charged with violating the Act. The charging
instrument alleged that a third party suffered bodily injury, without any particular
details as to the nature of the injury or the circumstances leading up to its occurrence.
Zuniga filed a pretrial application for writ of habeas corpus, arguing that the
Act was impermissibly vague on its face because it does not define the term
“approaching.” Without such a definition, or any other statutory guidance as to when
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the duty arises to move over or reduce speed, Zuniga claimed that he had no notice
of what was required of him to avoid criminal responsibility. He also argued that the
Act encouraged arbitrary and discriminatory enforcement through its use of
indefinite language.
Zuniga filed his application in the same cause number as the charging
instrument, which was not the correct procedure. He later filed the application in a
new cause number, separate and apart from the charging instrument, which was the
correct procedure. See Ex parte Fairchild-Porche, 638 S.W.3d 770, 778 (Tex.
App.—Houston [14th Dist.] 2021, no pet.) (“Pretrial habeas-corpus proceedings
are separate criminal actions that should be filed under a cause number different
from the cause number of the underlying criminal prosecution.”). The State opposed
habeas corpus relief, but the trial court granted Zuniga’s application and entered
judgments in both cause numbers dismissing the charging instrument.
The State now appeals from those separate judgments.
ANALYSIS
I. Standard of Review
Zuniga applied for habeas corpus relief on the asserted ground that the Act
was unconstitutional on its face. This ground is also known as a facial challenge, and
it raised a pure question of law. See Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim.
App. 2013). Because a trial court is in no better position than this court to resolve a
pure question of law, the trial court’s ruling is not entitled to deference, and we
consider the facial challenge de novo. Id.II. Vagueness Doctrine
A vagueness argument implicates two constitutional concerns. See United
States v. Davis, 139 S. Ct. 2319, 2325 (2019). The first concern is the due process
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of law, which requires that statutes give people of ordinary intelligence fair notice
of what the law demands of them. Id. Vague laws contravene this basic tenet by
failing to provide such notice. Id. The second concern is the separation of powers.
Id. In our representative democracy, only the legislature can “make an act a crime,”
and vague laws threaten this rule insofar as they delegate responsibility for defining
crimes to unaccountable police, prosecutors, and judges. Id. To protect these
constitutional concerns, the courts have developed a doctrine that a vague law is void
and may not be enforced. Id.III. The traditional rule still applies.
Whenever a party asserts a facial challenge to a statute on the grounds that the
statute is impermissibly vague, we presume that the statute is constitutional, which
means that the burden rests on the challenger to establish its unconstitutionality. See
Ex parte Smith, 441 S.W.2d 544, 547 (Tex. Crim. App. 1969).
A survey of the case law indicates that there might be some uncertainty as to
the precise scope of the challenger’s burden.
The traditional rule has been that the challenger has the burden of showing
that the statute is impermissibly vague in all of its applications. See Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494–95 (1982).
This is a heavy burden. See United States v. Salerno, 481 U.S. 739, 745 (1987) (“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.”). If the record reveals that the challenger
engaged in conduct that was clearly proscribed, then the challenger cannot establish
that the statute is invalid even though it might be vague as applied to the conduct of
others. See Village of Hoffman Estates, 455 U.S. at 495.
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But this traditional rule has not always been followed. The Supreme Court has
held that if the statute implicates the First Amendment or any other constitutionally
protected conduct, then the challenger is not required to demonstrate that the statute
is impermissibly vague in all of its applications. See United States v. Williams, 553
U.S. 285, 304 (2008) (“Although ordinarily a plaintiff who engages in some conduct
that is clearly proscribed cannot complain of the vagueness of the law as applied to
the conduct of others, we have relaxed that requirement in the First Amendment
context, permitting plaintiffs to argue that a statute is overbroad because it is unclear
whether it regulates a substantial amount of protected speech.”).
The Supreme Court also departed from the traditional rule in a recent trio of
cases, none of which involved the First Amendment or any other constitutionally
protected conduct. The first case in this trio was Johnson v. United States, 576 U.S.
591 (2015), which concerned a challenge to the Armed Career Criminal Act, a
federal sentencing statute that enhanced the punishment of a defendant if he had
previously been convicted three or more times of a violent felony. Id. at 593. The
statute defined the term “violent felony” with a series of exemplar crimes, followed
next by an open-ended residual clause that referred to any offense that “otherwise
involves conduct that presents a serious potential risk of physical injury to another.”
Id. at 594. Deciding whether that residual clause encompassed a crime required a
lower court to use a framework known as the categorical approach. Id. at 596. Under
that categorical approach, a lower court had to imagine what sort of conduct that the
crime involved “in the ordinary case”—as opposed to considering the particular facts
of the underlying conviction at issue—and then the court had to assess whether that
abstraction presented a serious potential risk of physical injury to another. Id.
Because this categorical approach was attended by uncertain and unreliable factors,
the Supreme Court held that the residual clause denied fair notice to defendants and
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invited arbitrary enforcement by judges. Id. at 597. The Supreme Court accordingly
invalidated the residual clause on vagueness grounds, despite having acknowledged
that the clause could have some “straightforward” applications. Id. at 602.
In Sessions v. Dimaya, 138 S. Ct. 1204 (2018) and United States v. Davis, 139
S. Ct. 2319 (2019), the Supreme Court invalidated two more residual clauses in other
federal statutes. Both of those opinions followed the reasoning previously applied in
Johnson.
The Supreme Court did not expressly disavow the traditional rule in any of
the trio of cases concerning residual clauses. However, in Johnson, the Supreme
Court made the following statement that could be construed as casting doubt on the
traditional rule: “In all events, although statements in some of our opinions could be
read to suggest otherwise, our holdings squarely contradict the theory that a vague
provision is constitutional merely because there is some conduct that clearly falls
within the provision’s grasp.” See Johnson, 576 U.S. at 602 (emphasis in original).
The Court of Criminal Appeals highlighted this statement in State v. Doyal,
589 S.W.3d 136 (Tex. Crim. App. 2019), where it suggested that the traditional rule
from earlier opinions may have been disavowed. Id. at 144 n.33 (commenting that
the Supreme Court “appears to have disavowed all prior conflicting opinions to the
extent of any conflict”). However, the Court of Criminal Appeals noted that the
Supreme Court failed to identify any earlier opinions that were no longer to be
treated as precedent. Id.That omission is significant because one of the leading opinions that recited
the traditional rule was Village of Hoffman Estates, which was cited in the dissenting
opinion in Johnson. See Johnson, 576 U.S. at 636 (Alito, J., dissenting). But in
Dimaya, which was the second case in the trio beginning with Johnson, the Supreme
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Court cited to Village of Hoffman Estates, without ever noting that any part of it had
been overruled or abrogated. See Dimaya, 138 S. Ct. at 1212–13.
A division in the lower courts of this state has created even more uncertainty
as to the status of the traditional rule. In the wake of Johnson, our court has continued
to apply the traditional rule in at least two cases. See Ex parte Gonzalez, 525 S.W.3d
342, 349 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“Unless First
Amendment freedoms are implicated, a facial vagueness challenge can succeed only
if it is shown that the law is unconstitutionally vague in all of its applications.”); Ex
parte Flores, 483 S.W.3d 632, 643 (Tex. App.—Houston [14th Dist.] 2015, pet.
ref’d) (“When First Amendment freedoms are not implicated, a facial vagueness
challenge can succeed only if it is shown that the law is unconstitutionally vague in
all of its applications.”). Both of those cases were decided without any discussion of
Johnson or its progeny.
By contrast, a separate court has held that the traditional rule is no longer in
effect. See Ex parte Jarreau, 623 S.W.3d 468, 472 (Tex. App.—San Antonio 2020,
pet. ref’d) (“However, recent decisions by the United States Supreme Court and the
Texas Court of Criminal Appeals indicate that when a penal statute is challenged for
vagueness it is unnecessary to establish that the statute operates unconstitutionally
in all possible circumstances.”).
Adding to this uncertainty is another case from the Court of Criminal Appeals,
which held—after Doyal—that the challenger in a facial challenge must establish
that there is no set of circumstances under which the statute would be valid. See
Allen v. State, 614 S.W.3d 736, 740–41 (Tex. Crim. App. 2019) (“Thus, if there is
any possible constitutional application of the statute, then Appellant’s facial
challenge fails.”). That case did not specifically involve a vagueness challenge, but
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it did involve a challenge arising under the separation of powers, which is one of the
two constitutional concerns upon which the vagueness doctrine was created.
Against this legal backdrop, the parties dispute whether the traditional rule
should still apply in this case. The State believes that it should apply because the
Move Over Act does not implicate the First Amendment or any other constitutionally
protected freedom. The State also believes that the trio of cases beginning with
Johnson represents a narrow exception to the traditional rule when the facial
challenge involves a residual clause, which is not the situation here. Zuniga, on the
other hand, believes that the traditional rule should not apply and that he had no
burden to demonstrate that the Act operates unconstitutionally in all of its
applications.
We feel bound to follow the traditional rule, and for three reasons.
First, the Supreme Court has not yet expressly disavowed the traditional rule
in all facial vagueness challenges. See Rodriguez de Quijas v. Shearson/Am. Exp.,
Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application
in a case, yet appears to rest on reasons rejected in some other line of decisions, the
Court of Appeals should follow the case which directly controls, leaving to this
Court the prerogative of overruling its own decisions.”).
Second, the Court of Criminal Appeals did not repudiate the traditional rule
in Doyal either. That case involved a statute that implicated the First Amendment,
and thus, the facial challenge there triggered a recognized exception to the traditional
rule.
And third, we applied the traditional rule in Gonzalez and Flores, and we must
continue to apply it out of respect for stare decisis.
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We accordingly hold that Zuniga could not obtain habeas corpus relief unless
he showed that the Act is impermissibly vague in all of its applications.
IV. Zuniga has not shown that the Act is impermissibly vague in all of its
applications.
Zuniga did not argue in his application that there were no set of circumstances
in which the Act could be lawfully applied. Instead, he argued that the word
“approaching” was impermissibly vague because it lacked a statutory definition. He
also criticized the Act because it permitted law enforcement to decide unilaterally
and arbitrarily when an approaching driver’s duty arose to move over or reduce his
speed. And he emphasized in particular that the Act provided “no guidance to law
enforcement on how close is too close.”
Zuniga seems to argue that the Act is impermissibly vague because a driver
has no way of knowing when exactly he is supposed to move over or slow down.
This argument would raise interesting questions in an as-applied challenge if the
evidence established that a driver was stopped for violating the Act during his
approach on a stationary authorized emergency vehicle, but before the driver had
actually passed the vehicle—or alternatively, if the driver moved over or slowed
down at some point before he passed the vehicle, yet he was still stopped after he
had passed the vehicle. We need not determine at this time whether the Act is too
vague to apply in these situations, because there is a different set of facts in which
the Act would clearly have a valid application—one in which the driver took no
safety precautions at all and he was stopped after he had already passed the
stationary authorized emergency vehicle. In that different situation, the passing
driver had necessarily been an approaching driver, and if the driver had totally failed
to either move over or reduce his speed before passing, then the driver would be
criminally responsible under the Act, even though the Act provides no particularized
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guidance as to when during his approach the driver was supposed to move over or
slow down. Because this factual scenario would support at least one valid application
of the Act, Zuniga’s facial challenge cannot succeed.
V. Even if the traditional rule did not apply, the outcome would be the same.
Assuming for the sake of argument that Zuniga did not have to demonstrate
that the Act was unconstitutional in all of its applications, we would still conclude
that the Act is not vague on its face.
The test for vagueness is not whether the words of a statute are specifically
defined. See Engelking v. State, 750 S.W.2d 213, 215 (Tex. Crim. App. 1988).
Rather, the test is whether the words are so indefinite that a person of ordinary
intelligence would have no reasonable opportunity to know what conduct was
prohibited or required. Id.When assessing the words of a statute, we begin with their plain meaning. See
Wagner v. State, 539 S.W.3d 298, 306 (Tex. Crim. App. 2018). The statute here uses
the word “approaching.” Though not defined in the statute itself, the word
“approach” has a plain meaning of “come near or nearer to (someone or something)
in distance.” See New Oxford American Dictionary 77 (Angus Stevenson &
Christine Lindberg eds., 3d ed. 2010). As applied to the Act, that plain meaning
requires a driver to move over or reduce his speed as the driver comes near a
stationary authorized emergency vehicle.
Zuniga contends that this meaning is vague because there is no quantifiable
metric to assess nearness.
The legislature has given such metrics in some statutes containing the word
“approach,” or one of its grammatical variants. See, e.g., Tex. Transp. Code
§ 545.056 (a driver may not drive to the left side of a roadway when “approaching
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within 100 feet of an intersection or railroad grade crossing”); Tex. Transp. Code
§ 545.302 (a driver may not stand or park a vehicle “within 30 feet on the approach
to a flashing signal”). In other statutes, the legislature has given only descriptive
guidance, rather than quantifiable metrics. See, e.g., Tex. Transp. Code § 552.003 (a
driver must yield the right-of-way to a pedestrian in a crosswalk if the pedestrian is
“approaching so closely from the opposite half of the roadway as to be in danger”);
Tex. Transp. Code § 545.156 (a driver must yield the right-of-way “on the
immediate approach of an authorized emergency vehicle using audible and visual
signals”).
The Move Over Act does not contain a quantifiable metric, but a statute can
survive a vagueness challenge even if the statute lacks “mathematical certainty” and
“meticulous specificity.” See Grayned v. City of Rockford, 408 U.S. 104, 110 (1972).
The Act here is valid on its face because a person of ordinary intelligence would still
know what was required of him—i.e., that he should move over or slow down before
passing a stationary emergency vehicle. A specific distance measurement would not
be necessary or especially helpful because the ordinary driver does not have the tools
needed to safely measure the distance in front of him while driving, especially when
driving at highway speeds. Cf. State v. Holcombe, 187 S.W.3d 496, 501 n.17 (Tex.
Crim. App. 2006) (concluding that a noise ordinance was not vague, even though it
lacked precise measurements, and noting that such measurements would not be
helpful to the ordinary person “because people do not carry around yardsticks or
decibel meters”).
In one last argument, Zuniga argues that we should still hold that the Act is
void for vagueness because a lower court in another jurisdiction concluded that the
term “approaching” was impermissibly vague in a different traffic law. See New
York v. Dybak, 205 N.Y.S.2d 454, 456 (Ulster Cty. Ct. 1960). The authority cited by
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Zuniga is not binding on us, and it predates Cox v. Louisiana, 379 U.S. 559 (1965),
in which the Supreme Court rejected a vagueness challenge to a picketing ordinance
that forbade certain demonstrations “near” a courthouse, despite any quantifiable
measurement for the word “near.” Id. at 568–69. Other courts have followed Cox in
similar cases, rejecting vagueness challenges to laws and regulations when those
enactments were written with descriptive terms, as opposed to precise numerical
figures. See Bruce & Tanya & Assocs., Inc. v. Bd. of Supervisors of Fairfax County,
Va., 854 Fed. App’x 521, 528–29 (4th Cir. 2021) (statute that prohibited signage
“within the limits of the highway” was not impermissibly vague); Hotel & Motel
Ass’n of Oakland v. City of Oakland, 344 F.3d 959, 972–73 (9th Cir. 2003)
(ordinance prohibiting hotel owners from contributing to nuisance activities on or in
“close proximity to” the property was not impermissibly vague); Brennan v.
Occupational Safety & Health Rev. Comm’n, 505 F.2d 869, 872–73 (10th Cir. 1974)
(regulation requiring a person trained in first aid if there was no infirmary, clinic, or
hospital “in near proximity” to the workplace was not impermissibly vague).
Because the word “near” is related to the word “approaching,” we conclude that Cox
is more persuasive, and that the Act here is not vague on its face.
CONCLUSION
The judgment granting habeas corpus relief in Trial Court Cause No. 2336003
(Appeals Court Cause No. 14-21-00757-CR) is reversed, and that case is remanded
for additional proceedings, as that was the case in which the charging instrument
was filed. The judgment granting habeas corpus relief in Trial Court Cause No.
2386601 (Appeals Court Cause No. 14-21-00758-CR) is reversed, and judgment is
rendered in that case denying Zuniga’s application for writ of habeas corpus.
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/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Wise and Hassan. Justice
Hassan joins all parts of this opinion, except Part V.
Publish — Tex. R. App. P. 47.2(b).
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