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