Franco Andre Goyzueta v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-07-383-CR

FRANCO ANDRE GOYZUETA APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY

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OPINION

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I. INTRODUCTION

Appellant Franco Andre Goyzueta appeals his conviction for violation of

a permanent injunction under the “gang injunction statute.” See T EX. P ENAL

C ODE A NN. § 71.021 (Vernon 2003); T EX. C IV. P RAC. & R EM. C ODE A NN.

§ 125.065 (Vernon 2005). Goyzueta pleaded guilty to the offense, and

pursuant to a plea bargain agreement with the State, the trial court sentenced

him to 300 days’ confinement in the Wichita County Jail and a $4,000 fine.
In four issues, Goyzueta argues that both section 71.021 of the Texas Penal

Code and the permanent injunction’s curfew restriction are unconstitutionally

vague and overbroad and that section 125.065(a)(2) of the Texas Civil Practice

and Remedies Code—authorizing entry of the permanent injunction underlying

Goyzueta’s conviction—violates the separation of powers doctrine. We will

affirm.

II. F ACTUAL AND P ROCEDURAL B ACKGROUND

On August 31, 2006, the State filed its “Original Petition for a Temporary

Restraining Order, Temporary Injunction, and Permanent Injunction.” The

petition named twenty-one members of the street gang, Varrio Carnales (“VC”),

including Goyzueta, who had allegedly engaged in criminal activity. The petition

listed twenty-nine activities the State sought to prohibit the named defendants

from engaging in.

Subsequently, the judge of the 89th District Court of Wichita County,

Texas entered an order for a permanent injunction under section 125.065 of the

Texas Civil Practice and Remedies Code. See T EX. C IV. P RAC. & R EM. C ODE A NN.

§ 125.065. The permanent injunction contained a curfew restriction,

2
prohibiting Goyzueta from “riding about in a public place after 11 p.m. and

before 6 a.m. of the immediately following day.” 1

A week after the permanent injunction was signed, at approximately

12:43 a.m., Officer Joe R. Esteves, a Wichita Falls police officer, observed a

car that failed to signal a left turn. Officer Esteves pulled the car over and saw

eighteen-year-old Goyzueta in the car. According to Officer Esteves, he knew

that Goyzueta was a VC member and that he was under the gang injunction

imposed by the City of Wichita Falls. Officer Esteves consequently arrested

Goyzueta for violating the court order enjoining organized criminal activity,

namely, “riding about in a public place after 11 p.m. and before 6 a.m. of the

immediately following day.”

Goyzueta filed a motion to dismiss the charge against him, raising several

constitutional challenges to the applicable statutes. Goyzueta did not file any

other pretrial motions. After a hearing on his motion to dismiss, Goyzueta and

the State reached the above-mentioned plea bargain agreement. Goyzueta now

appeals; his appeal is limited by the rules of appellate procedure and by the trial

1
… The record before us regarding Goyzeta’s criminal conviction, does not
contain a copy of the civil permanent injunction. But the parties agree, and the
indictment alleged, that it contained a “curfew provision” prohibiting anyone
subject to the injunction from “riding about in a public place after 11 p.m. and
before 6 a.m. of the immediately following day.”

3
court’s certification of his right to appeal, which restrict Goyzueta to re-urging

the issues he raised in his motion to dismiss. See T EX. R. A PP. P. 25.2(a)(2)(A).

III. T HE A PPLICABLE S TATUTES

Section 125.065 of the civil practice and remedies code outlines when

a trial court can enter a temporary or permanent order against a criminal street

gang member. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 125.065. The statute

provides:

(a) If the court finds that a combination or criminal street gang
constitutes a public nuisance, the court may enter an order:

(1) enjoining a defendant in the suit from engaging in
the gang activities of the combination or gang; and

(2) imposing other reasonable requirements to prevent
the combination or gang from engaging in future gang
activities.

(b) If the court finds that a place is habitually used in a manner that
constitutes a public nuisance, the court may include in its order
reasonable requirements to prevent the use of the place for gang
activity.

Id. Section 71.021 of the penal code describes the offense of violation of a

court order enjoining organized criminal activity:

(a) A person commits an offense if the person knowingly violates
a temporary or permanent order issued under Section 125.065(a)
or (b), Civil Practice and Remedies Code.

4
 (b) If conduct constitutes an offense under this section also
constitutes an offense under another section of this code, the actor
may be prosecuted under either section or under both sections.

(c) An offense under this section is a Class A misdemeanor.

T EX. P ENAL C ODE A NN. § 71.021.

IV. C ONSTITUTIONALITY OF P ENAL C ODE S ECTION 71.021

In his first and second issues, Goyzueta argues that section 71.021 of the

Texas Penal Code is unconstitutionally vague and overbroad. 2 The parties

contend that this is a case of first impression in Texas as no other court has

addressed the constitutionality of the gang injunction statute.

The constitutionality of a criminal statute is a question of law which we

review de novo. Owens v. State, 19 S.W.3d 480, 483 (Tex. App.—Amarillo

2000, no pet.); State v. Salinas, 982 S.W.2d 9, 10–11 (Tex. App.—Houston

[1st Dist.] 1997, pet. ref’d). Whenever we are confronted with an attack upon

the constitutionality of a statute, we presume that the statute is valid and that

the legislature has not acted unreasonably or arbitrarily. Rodriguez v. State, 93

2
… The statement of facts portion of Goyzueta’s appellate brief recites
numerous problematic procedural facts concerning the issuance of the initial
temporary and permanent injunctions pursuant to Texas Civil Practice and
Remedies Code section 125.065. Goyzueta did not, however, appeal from the
temporary or permanent injunction and in his statement of issues on appeal
challenges the constitutionality of section 125.065 based only on separation of
powers grounds.

5
S.W.3d 60, 69 (Tex. Crim. App. 2002); Ex parte Dave, 220 S.W.3d 154, 156

(Tex. App.—Fort Worth 2007, pet. ref’d), cert. denied, 128 S. Ct. 628 (2007).

The burden rests upon the individual who challenges the statute to establish its

unconstitutionality. Rodriguez, 93 S.W.3d at 69; Ex parte Dave, 220 S.W.3d

at 156. In the absence of contrary evidence, we will presume that the

legislature acted in a constitutionally sound fashion. Rodriguez, 93 S.W.3d at

69. The statute must be upheld if a reasonable construction can be ascertained

that will render the statute constitutional and carry out the legislative intent.

Shaffer v. State, 184 S.W.3d 353, 363 (Tex. App.—Fort Worth 2006, pet.

ref’d); see also Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.]

1979).

When an appellant challenges a statute as both unconstitutionally

overbroad and vague, we address the overbreadth challenge first. Village of

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102

S. Ct. 1186, 1191 (1982); Duncantell v. State, 230 S.W .3d 835, 843 (Tex.

App.—Houston [14th Dist.] 2007, pet. ref’d); Byrum v. State, 762 S.W.2d

685, 687 (Tex. App.—Houston [14th Dist.] 1988, no pet.).

6
 A. Overbreadth Challenge

Goyzueta contends that section 71.021 is unconstitutionally overbroad

because the statute is open-ended and allows the trial judge to determine what

conduct is prohibited.3

An overbreadth attack on a statute is recognized only in the context of

a First Amendment challenge. United States v. Salerno, 481 U.S. 739, 107 S.

Ct. 2095 (1987). In analyzing a facial overbreadth challenge to a law, we first

determine if the statute reaches a substantial amount of constitutionally

protected conduct. Village of Hoffman Estates, 455 U.S. at 494, 102 S. Ct.

at 1191; State v. Holcombe, 145 S.W.3d 246, 250 (Tex. App.—Fort Worth

2004), aff’d, 187 S.W.3d 496 (Tex. Crim. App.), cert. denied, 127 S. Ct. 176

(2006). A statute will not be invalidated under the overbreadth doctrine merely

3
… The State argues that Goyzueta did not properly preserve his
overbreadth challenge; it urges that Goyzueta’s facial overbreadth challenge to
section 71.021 was only superficially and not specifically mentioned in
Goyzueta’s motion to dismiss and points out that no as-applied overbreadth
challenge to section 71.021 was made in the trial court. The record reflects
that Goyzueta properly preserved his facial overbreadth challenge to section
71.021 in his motion to dismiss and at the hearing on it. Additionally,
Goyzueta’s arguments on appeal concerning the alleged unconstitutionality of
section 71.021 based on the overbreadth doctrine are facial challenges. We
therefore address those arguments. We agree with the State, however, that
Goyzueta did not raise an as-applied overbreadth challenge to section 71.021
in the trial court and that issue is not before us. See T EX. R. A PP. P.
25.2(a)(2)(A); Sullivan v. State, 986 S.W.2d 708, 711 (Tex. App.—Dallas
1999, no pet.).

7
because it is possible to imagine some unconstitutional applications. Holcombe,

145 S.W.3d at 250 (citing Village of Hoffman Estates, 455 U.S. at 494, 102

S. Ct. at 1191). Rather, the wide-reaching effects of striking down a statute

on its face, at the request of one whose own conduct may be punished despite

the First Amendment, has caused the Supreme Court to recognize that the

“overbreadth doctrine is ‘strong medicine’ and [courts should employ] it with

hesitation, and then ‘only as a last resort.’” New York v. Ferber, 458 U.S. 747,

769, 102 S. Ct. 3348, 3361 (1982); Garcia v. State, 212 S.W.3d 877, 888

(Tex. App.—Austin 2006, no pet.); Holcombe, 145 S.W.3d at 250.

The traditional rule is that “a person to whom a statute may

constitutionally be applied may not challenge that statute on the ground that it

may conceivably be applied unconstitutionally to others in situations not before

the Court.” Los Angeles Police Dept. v. United Reporting Publ’g Corp., 528

U.S. 32, 38, 120 S. Ct. 483, 488 (1999). However, an exception to this rule

is a First Amendment overbreadth challenge. Ferber, 458 U.S. at 769, 102 S.

Ct. at 3361. We will not strike down a statute under the overbreadth doctrine

unless there is “a realistic danger that the statute itself will significantly

compromise recognized First Amendment protections of parties not before the

Court.” Duncantell, 230 S.W.3d at 843; Garcia, 212 S.W.3d at 888.

8
 Goyzueta argues that section 71.021 is overbroad because it sweeps

within its coverage speech or conduct that is protected by the First

Amendment. We cannot agree. The purpose of the overbreadth doctrine is to

protect First Amendment freedom of expression from laws written so broadly

that the fear of punishment might discourage others from taking advantage of

that freedom. People v. Reynolds, 706 N.E.2d 49, 53–54 (Ill. App. Ct. 1999).

Here, section 71.021 forbids a person from “knowingly” violating a temporary

or permanent order. T EX. P ENAL C ODE A NN. § 71.021. As such, the statute has

a limited applicability because it applies only to individuals who are subject to

a temporary or permanent order and who knowingly violate that order. See

Garcia, 212 S.W.3d at 888 (holding that section 25.07(a) of the penal code

only applies to individuals who are subject to a court order).

A statute that forbids intentional conduct is rarely subject to a facial

overbreadth challenge. See Sullivan, 986 S.W.2d at 712 (citing United States

v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 35, 83 S. Ct. 594, 599 (1963), which

determined that an individual violates section 21.11(a)(1) of the penal code if

that person has the requisite intent, and Screws v. United States, 325 U.S. 91,

101–03, 65 S. Ct. 1031, 1035–36 (1945)); Byrum, 762 S.W.2d at 687

(holding penal code sections 21.07(a)(3) and 21.01(2) are not overbroad

because they forbid only knowing, intentional acts). Here, to violate section

9
71.021, a person must violate a temporary or permanent injunction with the

requisite intent (i.e., knowingly).

Goyzueta does not assert that a particular word or phrase in the statute

is overbroad nor does he describe what specific protected First Amendment

conduct or speech has been infringed upon by the statute. Instead, Goyzueta

merely complains that the statute itself is overbroad. Accordingly, after

examining section 71.021, we cannot say that it restricts a substantial amount

of constitutionally protected conduct because the only conduct that it restricts

is a knowing violation of a court order. See Village of Hoffman Estates, 455

U.S. at 494, 102 S. Ct. at 1191. Thus, we hold that the statute is not

unconstitutionally overbroad. Having determined that Goyzueta has failed to

show that section 71.021 is overbroad, we overrule Goyzueta’s second issue.

B. Void for Vagueness

In his first issue, Goyzueta asserts that section 71.021 is facially

unconstitutional because it fails to provide adequate notice of what conduct is

prohibited. The State argues that section 71.021 is constitutional because it

clearly defines the prohibited conduct and it applies only to a defendant’s

knowingly improper actions.

A statute is void for vagueness if it fails to define the criminal offense

“with sufficient definiteness that ordinary people can understand what conduct

10
is prohibited and in a manner that does not permit arbitrary and discriminatory

enforcement.” Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App.

2007), cert. denied, 128 S. Ct. 2056 (2008) (quoting State v. Holcombe, 187

S.W.3d 496, 499 (Tex. Crim. App.), cert. denied, 127 S. Ct. 176 (2006);

Stevens v. State, 817 S.W.2d 800, 804 (Tex. App.—Fort Worth 1991, pet.

ref’d). If, as in this case, a statute does not substantially implicate

constitutionally protected conduct or speech, it is valid unless it is

“impermissibly vague in all applications” or as applied to the defendant.

Lawrence, 240 S.W.3d at 915 (quoting Holcombe, 187 S.W.3d at 499).

A facial challenge to a statute is the most difficult challenge to mount

successfully because the challenger must establish that no set of circumstances

exists under which the statute will be valid. Shaffer, 184 S.W.3d at 364; see

also Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App.), cert. denied,

506 U.S. 999 (1992). Because a statute may be valid as applied to one set of

facts and invalid as applied to another, it is incumbent upon the appellant to

first show that in its operation, the statute is unconstitutional as to him in his

situation; that it may be unconstitutional as to others is not sufficient. Shaffer,

184 S.W.3d at 364; see also Santikos, 836 S.W.2d at 633. That is, the

reviewing court must look at appellant’s conduct alone, and then the court

11
must examine whether that conduct was clearly prohibited by the statute. Cain

v. State, 855 S.W.2d 714, 718 (Tex. Crim. App. 1993).

In determining whether a statute provides adequate guidelines for its

enforcement, the reviewing court may consider hypothetical situations to

determine whether the guidelines are adequate. Margraves v. State, 34 S.W.3d

912, 921 (Tex. Crim. App. 2000). Initially, though, if there is no constitutional

defect in the application of the statute to a litigant, he does not have standing

to argue that it would be unconstitutional if applied to third parties in

hypothetical situations. Santikos, 836 S.W.2d at 633.

We will first examine whether section 71.021 provides sufficient

information so that a person of ordinary intelligence would know that his

conduct was prohibited. See Lawrence, 240 S.W.3d at 915. Goyzueta was

charged with violating section 71.021 by “riding about in a public place after

11 p.m. and before 6 a.m. of the immediately following day.” Although

Goyzueta does not make an “as applied” argument per se regarding this issue,

we will liberally construe his brief so as to include an “as applied” challenge.

See T EX. R. A PP. P. 38.1(e), 38.9; Akins v. State, 202 S.W.3d 879, 892 (Tex.

App.—Fort Worth 2006, pet. ref’d).

Goyzueta argues that the statute is vague because a person of ordinary

intelligence would not be able to ascertain what conduct is prohibited. We

12
cannot agree. A statute must clearly express the crime and the elements

constituting it so that an ordinary person can intelligently choose, in advance,

what course it is lawful for him to pursue. Connally v. Gen. Constr. Co., 269

U.S. 385, 391, 46 S. Ct. 126, 127 (1926). The plain language of the statute

states that the prohibited conduct is a violation of a temporary or permanent

order issued under section 125.065 of the civil practice and remedies code.

See T EX. P ENAL C ODE A NN. § 71.021.

Thus, the language of the statute would have given an individual in

Goyzueta’s situation clear notice that violating the curfew restriction in the

permanent injunction would amount to a criminal offense. Further, Goyzueta

voluntarily agreed to the permanent injunction. See, e.g., Jackson v. State, 76

S.W.3d 798, 802 (Tex. App.—Corpus Christi 2002, no pet.) (noting that if

appellant agreed to waive jury trial she cannot now complain about something

she requested through counsel). Thus, Goyzueta not only knew that he was

subject to a permanent injunction, he also knew that the injunction contained

a curfew provision.

Goyzueta acknowledged in his brief that he was aware that other VC

members were arrested for violating the temporary injunction. As such, we

determine that a person similarly situated, who agreed to the permanent

injunction and knew that arrest was a possibility for violating the injunction,

13
would understand that riding about in a public place at 12:43 a.m. is prohibited.

Goyzueta further complains that the statute permits arbitrary and

discriminatory enforcement. He argues that the statute authorizes law

enforcement officers to arrest an injunction member if the officer reasonably

believes that the individual is in violation of a court order. He contends that the

statute is unconstitutionally vague because it does not state, on its face, what

conduct is prohibited.

We construe Goyzueta’s argument to complain that the statute was

arbitrarily applied to him because the arresting officer believed that he was

under a permanent injunction and that the injunction contained a curfew

provision. However, the arresting officer stated that he knew that Goyzueta

was a VC member and that he was under the gang injunction. The arresting

officer further stated that Goyzueta was in violation of the permanent injunction

because he was violating the curfew provision. Thus, Goyzueta cannot

demonstrate that the officer acted arbitrarily because the officer stated that he

knew that Goyzueta was in violation of the permanent injunction. See Shaffer,

184 S.W.3d at 365 (holding that fact that officer recognized appellant did not

establish that officer acted arbitrarily).

Additionally, Goyzueta cites to Chicago v. Morales, a United States

Supreme Court opinion, to support his contention that the statute permits

14
arbitrary and discriminatory enforcement. 527 U.S. 41, 119 S. Ct. 1849

(1999). In Morales, the City of Chicago passed an ordinance that prohibited

gang members from loitering in public places. Id. at 46–47, 119 S. Ct. at

1854. The ordinance provided in relevant part that

[w]henever a police officer observes a person whom he reasonably
believes to be a criminal street gang member loitering in any public
place with one or more other persons, he shall order all such
persons to disperse and remove themselves from the area. Any
person who does not promptly obey such an order is in violation of
this section.

Id. at 47 n.2, 119 S. Ct. at 1854.

In holding that the gang loitering ordinance was unconstitutionally vague,

the Court determined that the ordinance did not provide law enforcement with

any guidelines. Id. at 60, 119 S. Ct. at 1861. The ordinance, as written,

authorized police officers to order any individual, whether a gang member or

not, to disperse if the officer was not aware of their purpose. Id. at 63, 119

S. Ct. at 1862.

However, unlike the ordinance in Morales, section 71.021 does provide

law enforcement officers with guidelines and prevents arbitrary and

discriminatory enforcement. Compare T EX. P ENAL C ODE A NN. § 71.021 with

Morales, 527 U.S. at 47 n.2, 119 S. Ct. at 1854. Section 71.021 authorizes

an officer to arrest an individual for violating a restriction in a temporary or

15
permanent order only if that individual is subject to the order. T EX. P ENAL C ODE

A NN. § 71.021. As such, an officer cannot arrest someone under the statute

unless the officer knows that the individual is subject to a court order and is

violating a court-imposed restriction.

Accordingly, we hold that section 71.021 was not unconstitutional as

applied to Goyzueta. 4 Thus, Goyzueta cannot establish that the statute is

unconstitutional as applied to all convicted persons. See Shaffer, 184 S.W.3d

at 364. As such, Goyzueta has failed to establish that under no set of

circumstances would the statute be valid. See id. at 365. We overrule

Goyzueta’s first issue.

V. S ECTION 125.065 AND THE S EPARATION OF P OWERS D OCTRINE

In his third issue, Goyzueta argues that section 125.065 of the civil

practice and remedies code violates the separation of powers doctrine because

it in effect allows a trial judge to create new criminal laws which when violated,

create a class A misdemeanor. Goyzueta cites article two, section one and

article three, sections thirty and forty-three of the Texas Constitution to support

his contention. Article two, section one provides:

4
… Although we hold that Goyzueta has not demonstrated that under
these particular facts the statute is unconstitutional as applied to him, we
recognize that there could be instances in which this statute is
unconstitutionally vague as applied to other individuals.

16
 The powers of the Government of the State of Texas shall be
divided into three distinct departments, each of which shall be
confided to a separate body of magistracy, to wit: Those which
are Legislative to one; those which are Executive to another, and
those which are Judicial to another; and no person, or collection of
persons, being of one of these departments, shall exercise any
power properly attached to either of the others, except in the
instances herein expressly permitted.

T EX. C ONST. art. II, § 1. The Separation of Powers Clause is violated (1) when

one branch of government assumes power more properly attached to another

branch or (2) when one branch unduly interferes with another branch so that

the other cannot effectively exercise its constitutionally assigned powers. In

re D.W., 249 S.W.3d 625, 635 (Tex. App.—Fort Worth 2008, pet. denied).

The power to pass laws and to revise the criminal laws of Texas is vested in

the legislature. T EX. C ONST. art. III, §§ 30, 43; Beasley v. Molett, 95 S.W.3d

590, 608 (Tex. App.—Beaumont 2002, pet. denied).

Initially, we recognize that this is an issue of first impression because no

other court has addressed the issue of section 125.065 and the separation of

powers doctrine. Although not directly on point, we determine that our sister

courts’ analyses regarding the Civil Commitment of Sexually Violent Predators

Act, chapter 841 of the Texas Health and Safety Code, and the separation of

powers doctrine to be persuasive.

17
 Section 841.082 of the Texas Health and Safety Code states in relevant

part that “[b]efore entering an order directing a person’s outpatient civil

commitment, the judge shall impose on the person requirements necessary to

ensure the person’s compliance with treatment and supervision and to protect

the community. The requirements shall include: . . . (9) any other requirements

determined necessary by the judge.” T EX. H EALTH & S AFETY C ODE A NN.

§ 841.082(a)(9) (Vernon Supp. 2008). Section 841.085 provides that “[a]

person commits an offense if, after having been adjudicated and civilly

committed as a sexually violent predator under this chapter, the person violates

a civil commitment requirement imposed under Section 841.082.” Id.

§ 841.085(a). An offense under section 841.085 is a third-degree felony. Id.

§ 841.085(b).

In Beasley, the Beaumont Court of Appeals examined sections 841.082

and 841.085 of the health and safety code. 95 S.W.3d at 607–609. In that

case, the defendant asserted that section 841.085 of the health and safety

code—when read in conjunction with section 841.082(9)—violated the

separation of powers doctrine. Id. Specifically, he claimed that the separation

of powers doctrine was violated because the trial judge had the authority to

impose requirements the judge deemed necessary, thus granting the judge the

power to create a third-degree felony. Id.

18
 The Beaumont Court of Appeals rejected Beasley’s argument, holding that

the legislature did not delegate its authority to create third-degree felonies to

the trial court. Id. at 609. The court reasoned that the legislature authorized

the trial courts to impose requirements necessary to ensure compliance with the

treatment and supervision of the committed person and to ensure the public’s

safety. Id. The court reasoned that it is the legislature that determined that

violations of any of the statutory requirements, including those necessary

requirements specified by the judge, are third-degree felonies. Id.; see also In

re Commitment of Petersimes, 122 S.W.3d 370, 372 (Tex. App.—Beaumont

2003, pet. denied) (citing Beasley and denying appellant’s separation of powers

argument); In re Commitment of Browning, 113 S.W.3d 851, 865 (Tex.

App.—Austin 2003, pet. denied) (holding that separation of powers doctrine

not violated because legislature determined that violation of requirements,

including judicially-imposed requirement, is an offense).

Here, the separation of powers doctrine is not violated merely because

the legislature authorized trial courts to impose reasonable requirements not

specifically listed in the statute to prevent known gang members from engaging

in criminal activities. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 125.065(a)(2).

The legislature has simply allowed trial courts to impose requirements to

prevent a gang member from engaging in future gang activities while retaining

19
the authority to impose a class A misdemeanor for violating a court-imposed

restriction. Id.; T EX. P ENAL C ODE A NN . § 71.021(c). As such, we hold that

section 125.065 does not violate the separation of powers doctrine.

Accordingly, we overrule Goyzueta’s third issue.

VI. C ONSTITUTIONALITY OF INJUNCTION C URFEW P ROVISION

In his final issue, Goyzueta asserts that the injunction curfew provision

that he was charged with violating is unconstitutionally vague and overbroad.

The State argues that Goyzueta failed to properly preserve error on this issue

because he is raising it for the first time on appeal. We must agree.

To preserve a complaint for our review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling if they are not apparent from the context of the

request, objection, or motion. T EX. R. A PP. P. 33.1(a)(1); Mosley v. State, 983

S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.

1070 (1999). Further, the trial court must have ruled on the request, objection,

or motion, either expressly or implicitly, or the complaining party must have

objected to the trial court’s refusal to rule. T EX. R. A PP. P. 33.1(a)(2); Mendez

v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).

Here, the trial court’s certification of appeal specifically states that

Goyzueta has the right to appeal matters raised “by written motion filed and

20
ruled on before trial and not withdrawn or waived.” Goyzueta did not include

an issue regarding the constitutionality of the curfew provision in his motion to

dismiss. Accordingly, we hold that Goyzueta did not properly preserve this

issue for our review.5 Thus, we overrule Goyzueta’s fourth issue.

VII. C ONCLUSION

Having overruled Goyzueta’s four issues, we affirm the trial court’s

judgment.

SUE WALKER
JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

PUBLISH

DELIVERED: August 26, 2008

5
… In his brief, Goyzueta lists two instances in which apparent fellow
gang members under the temporary injunction were arrested. Goyzueta argues
that the injunction restrictions that the gang members were allegedly charged
with violating are overbroad. However, evidence supporting Goyzueta’s
statements that fellow VC members were arrested for violating the temporary
order is not included in the appellate record. Because Goyzueta did not raise
an issue regarding the constitutionality of the temporary or permanent
injunction in his motion to dismiss, we hold that he has failed to preserve this
issue for our review.

21