State v. Johnson, Terence ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD–0228–14
THE STATE OF TEXAS
v.
TERENCE JOHNSON, Appellee
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE TWELFTH COURT OF APPEALS
HOUSTON COUNTY
M EYERS, J., filed a dissenting opinion.
DISSENTING OPINION
I disagree that the destruction-of-a-flag statute is unconstitutionally overbroad.
The statute is actually quite specific: “A person commits an offense if the person
intentionally or knowingly damages, defaces, mutilates, or burns the flag of the United
States or the State of Texas.” T EX. P ENAL C ODE §42.11. It serves to keep people from
destroying a symbol of our nation and state, which is exactly what Appellee did here. By
Johnson dissent–Page 2
all accounts, he was not attempting to make any type of statement, so his conduct is not
protected under the First Amendment. Although it is the flag’s symbolism that provides it
specialized protection under this statute, its use as a symbol of expression is exempted
from prosecution and thus the limited enforcement of the statute will not produce a
chilling effect on protected conduct. The State could just as easily promulgate a statute
prohibiting the killing of a mockingbird, which as the State bird of Texas also has great
symbolism, without infringing on the freedom of expression.
Because it is overkill to declare this statute unconstitutional when the real question
is merely whether the State had sufficient evidence to convict Appellee of destruction of a
flag, I respectfully dissent.
Filed: October 7, 2015
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