Martinez, Mario Rico

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. PD-0622-09 through PD-0626-09

MARIO RICO MARTINEZ, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITIONS FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
WICHITA COUNTY

K EASLER, J., delivered the opinion of the Court in which K ELLER, P.J., P RICE,
W OMACK, J OHNSON, H ERVEY, H OLCOMB, and C OCHRAN, JJ., joined. M EYERS, J., did
not participate.

OPINION

We hold that the Fort Worth Court of Appeals did not err in holding that Section

125.065(a)(2), Texas Civil Practice and Remedies Code, which permits a judge to impose

reasonable requirements when enjoining criminal street gang activity, a violation of which

is punishable under Penal Code Section 71.021, does not violate the separation of powers

doctrine. We also conclude that the court of appeals correctly determined that the provision
 MARTINEZ—2

of the injunction prohibiting Mario Rico Martinez from making gang hand signs and wearing

gang clothing did not violate the First Amendment and was not unconstitutionally vague.

Background

We begin by focusing on two statutes that are aimed at controlling the ever-growing

communal problem of criminal gang-related violence across this state.1 Section 125.065 of

the Texas Civil Practice and Remedies Code allows a judge to enter an order restricting

criminal gang-related activities that represent a public nuisance:

(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.2

Section 125.061(3) of the Texas Civil Practice and Remedies Code defines gang

activity as several criminal offenses.3 Under Texas Penal Code Section 71.021, it is a Class

A misdemeanor offense to violate an order enjoining gang-related activities constituting a

1
See generally Gangs in Texas 2001: an Overview, Attorney General of Texas,
available at http://www.oag.state.tx.us/AG_Publications/pdfs/2001gangrept.pdf
(discussing Texas gang issues).
2
T EX. C IV. P RAC. & R EM. C ODE A NN. § 125.065; see also T EX. C IV. P RAC. &
R EM. C ODE A NN. § 125.061(3) (defining “gang activity); T EX. P ENAL C ODE ANN. §§
71.01(a) (defining “Combination”), (d) (defining “Criminal Street Gang”), 71.02
(defining the offense of engaging in organized criminal activity).
3
T EX. C IV. P RAC. & R EM. C ODE A NN. § 125.061(3).
 MARTINEZ—3

nuisance: “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

In September 2006, the trial judge in the Eighty-Ninth District Court of Wichita

County entered a temporary order enjoining specific members of the Varrio Carnales (VC)

street-gang, including Martinez, from engaging in certain activities. The temporary

injunction established a “VC safety zone” by delineating particular boundaries within

Wichita Falls. Among other things, the order enjoined Martinez from:

2. Associating, standing, sitting, walking, driving, bicycling, gathering or
appearing anywhere in public view with any other Defendant herein,
with other known members of any other street gang, or any other
individual who the Defendant knows is a member of the VC, with other
known members of any other street gang, or any other individual who
has been charged with a criminal offense.
...
16. Using or making words, phrases, physical gestures, or symbols,
commonly known as gang hand signs or engaging in other forms of
communication which the Defendant knows, describes, refers, or
identifies members of the combination, or wearing clothes that
particularly identify membership within the combination.
...
29. At any location in Wichita County, at any time entering onto the
property of another Defendant who is a party to this lawsuit or any
other individual who the Defendant knows is a member of the VC.

The trial judge also scheduled a hearing to decide whether the temporary injunction

should be made permanent.

In April 2007, the trial judge issued a permanent order enjoining Martinez and other

4
T EX. P ENAL C ODE A NN. § 71.021(a), (c).
 MARTINEZ—4

VC gang members from engaging in various activities. Though the activities prohibited by

the order were nearly identical to those in the temporary order, the conditions under which

the order was entered differed. According to the order,

It was announced to the Court that the parties have reached a settlement of
their dispute and desire to terminate the litigation in this cause pursuant to the
terms set out in this Order. The Court is of the opinion that this Agreed Order
is well taken and should in all things be granted and the same is hereby
GRANTED.
...

The parties further agree this Order shall not be used as evidence in a criminal
proceeding except those criminal proceedings relating to violations of this
Order, and any other applicable criminal contempt or civil contempt
proceeding brought pursuant to Chapter 125 of the TEXAS C IVIL P RACTICE
AND R EMEDIES C ODE.

IT IS FURTHER ORDERED that if Mario Martinez, as of April 6, 2010, has
not been arrested for any criminal offense defined as “criminal gang activity”
by chapter 125 of the TEXAS C IVIL P RACTICE & R EMEDIES C ODE, he will be
removed from this injunction.

IT IS FURTHER AGREED by the parties hereto that the above enjoined
activities constitute reasonable restrictions as contemplated and permitted by
the TEXAS C IVIL P RACTICE & R EMEDIES C ODE Section 125.065.

The order was signed by Martinez’s attorney, and it notified Martinez that he had the

right to prosecute an appeal.5 Martinez did not appeal the order.

In cause number 40229-F,6 Martinez was charged with violating provisions two and

5
See T EX. C IV. P RAC. & R EM. C ODE A NN. § 125.067(b) (“Not later than the 90th
day after the date of the injunctive order, an appropriate court of appeals shall hear and
decide an appeal taken by a person enjoined under this subchapter.”).
6
01-97791-M07-40229-F.
 MARTINEZ—5
twenty-nine of the temporary injunction by entering the property of another VC gang

member. In cause numbers 39396-F 7 and 40552-F,8 Martinez was also charged with

violating the temporary injunction by making hand gang signs or engaging in other forms of

communication that Martinez knows describes, refers, or identifies members of the

combination or wearing clothes that identify membership with the combination within the

VC safety zone. In cause number 39397-F,9 Martinez was charged with violating the

temporary injunction by associating, driving, or appearing in public view in the VC zone with

another named defendant to the injunction. Finally, in cause number 40116-F,10 Martinez

was charged with violating a provision of the permanent injunction.

County Court at Law Proceedings

Before trial, Martinez moved to dismiss the charges. Among other things, Martinez

claimed that “reasonable requirements” language in Section 125.065(a)(2), Texas Civil

Practice and Remedies Code, violates the separation of powers doctrine of the Texas

Constitution because it allows judges to make criminal laws that may be sanctioned under

Penal Code Section 71.021. Martinez further alleged that provision sixteen of the temporary

injunction is unconstitutionally vague and overbroad. Clarification of Martinez’s

7
01-97791-M07-39396-F.
8
01-97791-M07-40552-F.
9
01-97791-M07-39397-F.
10
01-97791-M07-40116-F.
 MARTINEZ—6
overbreadth claim, at this point, is required. While Martinez used the word overbroad to

describe part of his challenge to provision sixteen, a review of the record at trial and on

appeal shows that Martinez was not mounting a classic overbreadth claim as it is understood

in its legal and technical nomenclature. Martinez appears to have confused First Amendment

legal theories throughout the duration of this case. Properly labeled, Martinez’s First

Amendment challenge presented a challenge to his right to free speech. This is the claim

raised and preserved for appellate review, even though it has been repeatedly mislabeled at

the trial and appellate court levels.

After hearing the parties’ arguments on these issues, the trial judge denied Martinez’s

request to dismiss. Martinez pled guilty in each case, and the trial judge certified Martinez’s

right to appeal the motions to dismiss.

Court of Appeals

Before the Fort Worth Court of Appeals, Martinez argued, among other things, that

Section 125.065(a)(2) violates the separation of powers doctrine and that provision sixteen

of the temporary injunction, which prohibited him from using gang hand signs and wearing

gang clothing, was unconstitutionally vague and overbroad.11

The court rejected Martinez’s separation-of-powers claim, relying on its previous

11
Martinez v. State, Nos. 2-08-070-CR through 2-08-074-CR, 2009 Tex. App.
LEXIS 1067, at *5, 17 (Tex. App.—Fort Worth Feb. 12, 2009) (not designated for
publication).
 MARTINEZ—7
published opinion addressing the issue in Goyzueta v. State.12 In Goyzueta, the court

analogized the statutes here to specific statutes in the Civil Commitment of Sexually Violent

Predators Act, which the Beaumont Court of Appeals in Beasley v. Molett determined did not

violate the separation of powers doctrine.13 Under the Civil Commitment of Sexually Violent

Predators Act, a judge shall, before subjecting a person to outpatient civil commitment,

impose requirements necessary, according to the judge’s determination, to ensure the

person’s compliance with treatment and supervision to protect the community.14 It is a third

degree felony offense if a person adjudicated and civilly committed as a sexually violent

predator violates a judge-imposed commitment requirement.15 Beasley claimed that the trial

judge’s individual authority to impose requirements that the judge deems necessary affords

the judge the authority to create a third-degree felony in violation of the separation of powers

doctrine.16 The Beaumont Court disagreed, concluding that the Legislature determined that

a violation of a judge’s necessary requirements are third-degree felonies.17

Applying the Beasley court’s reasoning, the Forth Worth Court in Goyzueta held that

12
Martinez, 2009 Tex. App. LEXIS 1067, at *5-6 (citing Goyzueta v. State, 266
S.W.3d 126 (Tex. App.—Fort Worth 2008)).
13
266 S.W.3d at 135 (citing Beasley v. Molett, 95 S.W.3d 590, 607-09 (Tex.
App.—Beaumont 2002, pet. denied)).
14
T EX. H EALTH & S AFETY C ODE A NN. § 841.082(a)(9).
15
T EX. H EALTH & S AFETY C ODE A NN. § 841.085(a)-(b).
16
Beasley, 95 S.W.3d at 607-09.
17
Id.
 MARTINEZ—8
“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 activity.” 18 Therefore, the court held that

there is no violation of the separation of powers doctrine.19

Turning to the constitutionality of provision sixteen of the temporary injunction,

which prohibited the use of hand gang signs in this case, the court of appeals held that it is

neither overbroad nor vague.20 We pause to note again that Martinez’s overbreadth claim

presented a challenge to provision sixteen as an improper restriction on his speech in

violation of the First and Fourteenth Amendments.21 When analyzing this claim (despite the

improper label), the court identified the provision as content-neutral because it prohibited

only the use of all hand gang signs in the VC Safety Zone.22 Martinez’s particular message,

in the court’s opinion, was not the focus of the provision because it applies to all gang

signs.23 The court determined that the burden on Martinez does not exceed the means

necessary to carry out the State’s interest in maintaining a safe area.24

18
Goyzueta, 266 S.W.3d at 136.
19
Id.
20
Martinez, 2009 Tex. App. LEXIS 1067, at *17-22.
21
Id.
22
Id. at *19-20.
23
Id.
24
Id.
 MARTINEZ—9
The court then held that the provision is not unconstitutionally vague because the

conduct is defined sufficiently for a reasonable person to understand and for law enforcement

to apply.25 The subject matter is limited to hand gestures that identify an individual as a gang

member and such gestures are easy to identify, especially for law enforcement.26

Finally, the court examined whether the gang-clothing restriction in provision sixteen

is void for vagueness.27 The court determined that the conduct is sufficiently defined for an

ordinary person to understand and is specific enough to prevent arbitrary and discriminatory

enforcement because the gang colors are known to law enforcement and are therefore easily

identifiable.28

Petitions for Discretionary Review

We granted Martinez’s petitions for discretionary review to decide whether the court

of appeals erred in holding that Texas Civil Practice and Remedies Code Section 125.065,

when sanctioned through Penal Code Section 71.021, does not violate the separation of

powers doctrine.29 We also granted review to decide whether the court of appeals erred in

concluding that provision sixteen, which prohibited Martinez from making hand gang signs

and wearing gang clothing, did not violate Martinez’s right to free speech and was not

25
Id. at *21.
26
Id.
27
Id. at *22-23.
28
Id.
29
See T EX. C ONST. art. II, § 1.
 MARTINEZ—10
unconstitutionally vague.

In his brief on the merits, Martinez also complains that Section 71.021 is void for

vagueness. Although the court of appeals addressed this claim,30 Martinez did not present

this as a ground in his petitions for discretionary review. As a result, we did not grant review

to address the court of appeals’s decision on this issue, and we decline to address it at this

juncture.

Estoppel

Before we address the merits of Martinez’s grounds for review, we will determine

whether Martinez should be estopped from raising any claims under the permanent

injunction.31 We conclude that he is estopped from doing so under the circumstances here.

The permanent injunction was agreed to by Martinez, through counsel, as part of a settlement

to “terminate” litigation. Martinez agreed that the activities precluded by the injunction were

“reasonable restrictions” under Texas Civil Practice and Remedies Code Section 125.065.

Further, the duration of the injunction was fixed; it expired on April 6, 2010, if Martinez was

not arrested for an offense defined as “criminal gang activity” in Chapter 125 of the Texas

Civil Practice and Remedies Code. As we recently recognized in Rhodes v. State, “a party

who accepts the benefits under a contract is estopped from questioning the contract’s

30
Martinez, 2009 Tex. App. LEXIS 1067, at *5-6.
31
See Rhodes v. State, 240 S.W.3d 882, 887 n.9 (Tex. Crim. App. 2007) (“because
the State prevailed at trial, we may in our discretion address subsidiary arguments that
support the trial court’s ruling that were not presented to the court of appeals.”).
 MARTINEZ—11
existence, validity, or effect.” 32 The permanent injunction was the result of a quid pro quo

agreement between Martinez and the State; therefore, we conclude that Martinez is estopped

from mounting any challenge to the permanent injunction. Consequently, we refuse to

address the merits of Martinez’s claims as they relate to cause number 40116-F.

Separation of Powers Doctrine

The sovereign power of our state government is divided into three distinct, but equal

branches: the Legislative; the Executive; and the Judicial.33 Each branch has a designated

function, and complications arise when one branch intrudes upon or usurps the power of

another.34 In the past, we have identified two types of separation-of-powers violations.35 The

first occurs “when one branch of government assumes, or is delegated, to whatever degree,

a power that is more ‘properly attached’ to another branch.” 36 The second occurs “when one

branch unduly interferes with another branch so that the other branch cannot effectively

exercise its constitutionally assigned powers.” 37

32
240 S.W.3d at 891 (citing 31 C.J.S. Estoppel & Waiver § 124, at 554)).
33
Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990)
(quoting Article 2 § 1 T EX. C ONST.).
34
Id.
35
Id.
36
Id. (quoting Ex parte Giles, 502 S.W.2d 774, 780 (Tex. Crim. App. 1973))
(emphasis in original).
37
Id. (citing Rose v. State, 752 S.W.2d 529, 535 (Tex. Crim. App. 1987); Meshell
v. State, 739 S.W.2d 246, 252 (Tex. Crim. App. 1987)) (emphasis in original).
 MARTINEZ—12
Our Legislature, which “declares the public policy of the state,” holds the exclusive

power to make law.38 Thus, the Legislature possesses the sole authority to establish criminal

offenses and designate applicable penalties. 39 Generally, the Legislature may not delegate

its law-making power to another branch.40 However, “[w]hen the Legislature itself cannot

practically or efficiently perform the functions required, it has the authority to designate some

agency to carry out the purpose of such legislation.” 41 So once the Legislature declares a

policy and sets a “primary standard,” it may authorize an agent to prescribe the necessary

details to carry out a law’s purpose. 42 A legislative grant of discretionary authority to an

agent designated to carry out a legislative policy is proper when the Legislature has set

standards for guidance that are capable of reasonable application.43

So long as the statute is sufficiently complete to accomplish the regulation of

38
State v. Rhine, 297 S.W.3d 301, 305 (Tex. Crim. App. 2009) (citing State v.
Dallas, 319 S.W.2d 767, 774 (Tex. Civ. App.—Austin 1958)); see also Williams v. State,
176 S.W.2d 177, 182 (Tex. Crim. App. 1943) (“the lawmaking bodies of each State pass
laws to protect the peace, health, happiness, and general welfare of society, and of the
people as a whole.”).
39
Rhine, 297 S.W.3d at 306 (citing Sasser v. State, 131 Tex. Crim. 347, 98
S.W.2d 211, 212 (Tex. Crim. App. 1936); David v. State, 453 S.W.2d 172, 179 (Tex.
Crim. App. 1970), vacated on other grounds in David v. Texas, 408 U.S. 937 (1972);
Grant v. State, 505 S.W.2d 279, 282 (Tex. Crim. App. 1974)); Ex parte Granviel, 561
S.W.2d 503, 515 (Tex. Crim. App. 1978).
40
Ex parte Granviel, 561 S.W.2d at 514; T EX. C ONST. art. III, § 1.
41
Ex parte Granviel, 561 S.W.2d at 514.
42
Id.
43
Id.
 MARTINEZ—13
the particular matters falling within the Legislature’s jurisdiction, the matters
of detail that are reasonably necessary for the ultimate application, operation
and enforcement of the law may be expressly delegated to the authority
charged with the administration of the statute.44

We presume that a law delegating authority to an agent is constitutional, and the party

asserting a separation-of-powers violation must show that the Legislature’s delegation is

unlawful.45

Applying the foregoing analytical framework, we begin by examining the legislative

history and purpose behind Section 125.065 of the Texas Civil Practice and Remedies Code

and Penal Code Section 71.021. In enacting Section 125.065 in 1993, the Legislature

intended to permit local governments to abate the nuisance created by street gangs involved

in illegal conduct “while having a zero net effect on the already crowded prison system.” 46

As originally enacted, Section 125.065 stated: “If the court finds that a combination or

criminal street gang constitutes a public nuisance, the court may enter an order enjoining a

defendant in the suit from engaging in the organized criminal activities of the combination

or gang.”47 A violation of a court order entered under Section 125.065 was punishable only

44
Id.
45
Id. at 515.
46
House Comm. on Urban Affairs, Bill Analysis, Tex. H.B. 697, 73rd Leg. R.S.
(1993).
47
Acts 1993, 73rd Leg., ch. 968, § 3, eff. Aug. 30, 1993.
 MARTINEZ—14
through civil contempt proceedings.48 After some minor amendments in 1995,49 in 2003, the

Legislature amended Section 125.065 to permit a judge to impose “other reasonable

requirements to prevent the combination or gang from engaging in future gang activities.” 50

The bill analysis noted this modification and stated that the purpose of the bill is to allow

“certain entities to issue civil injunctions to deter certain gang[-]related conduct and seek aid

to communities which experience high volumes of gang activity to be able to participate in

the disenfranchising of gang-related gatherings.” 51

In 1995, the Legislature enacted Penal Code Section 71.021.52 The purpose of the bill

was to create a criminal offense for a violation of an order entered under Section 125.065 and

provide for a criminal penalty.53

The clear legislative goal behind Section 125.065 is to put an end to the nuisance

activities of criminal street gangs that wreak havoc on our local communities. To enforce

this policy, the Legislature has chosen to provide for the possibility of both civil and criminal

48
T EX. C IVIL P RAC. & R EM. C ODE A NN. § 125.066.
49
Acts 1995, 74th Leg., ch. 76, § 14.13, eff. Sept. 1, 1995; Acts 1995, 74th Leg.,
ch. 318, § 34, eff. Sept. 1, 1995.
50
Acts 2003, 78th Leg., ch. 1202, § 11, eff. Sept. 1, 2003.
51
Senate Comm. on Jurisprudence, Bill Analysis, Tex. S.B. 1010, 78th R.S.
(2003).
52
Acts 1995, 74th Leg., ch. 584, § 1, eff. Sept. 1, 1995.
53
Senate Comm. on Jurisprudence, Bill Analysis, Tex. SB 1090, 74th R.S. (1995).
 MARTINEZ—15
sanctions.54

With the legislative policy established, we now evaluate whether the Legislature has

provided a fixed primary standard that is capable of being reasonably applied, provides

guidance, and limits discretion.55 A comprehensive review of the statute demonstrates that

the Legislature has set a primary standard that instructs and limits a judge’s discretion when

formulating and imposing “reasonable requirements to prevent the combination or gang from

engaging in future gang activity.” First, any action taken by a judge is preceded by a judicial

determination that the criminal gang or combination constitutes a public nuisance. A public

nuisance is a “combination or criminal street gang that continuously or regularly associates

in gang activities . . . .” 56 Conduct constituting gang activity is defined in Section 125.061

of the Texas Civil Practice and Remedies Code as follows:

(A) organized criminal activity as described by Section 71.02, Penal Code;
(B) terroristic threat as described by Section 22.07, Penal Code;
(C) coercing, soliciting, or inducing gang membership as described by Section
22.015, Penal Code;
(D) criminal trespass as described by Section 30.05, Penal Code;
(E) disorderly conduct as described by Section 42.01, Penal Code;
(F) criminal mischief as described by Section 28.03, Penal Code, that causes
a pecuniary loss of $500 or more;
(G) a graffiti offense in violation of Section 28.08, Penal Code, that:
(i) causes a pecuniary loss of $500 or more; or

54
T EX. P ENAL C ODE A NN. § 71.021.
55
Rhine, 297 S.W.3d at 306.
56
T EX. C IV. P RAC. & R EM. C ODE A NN. § 125.062; see also T EX. C IV. P RAC. &
R EM. C ODE A NN. § 125.061(2) (“‘Continuously or regularly” means at least five times in
a period of not more than six months.”).
 MARTINEZ—16
(ii) occurs at a school, an institution of higher education, a place of
worship or human cemetery, a public monument, or a community center that
provides medical, social, or educational programs;
(H) a weapons offense in violation of Chapter 46, Penal Code; or
(I) unlawful possession of a substance or other item in violation of Chapter
481, Health and Safety Code.57

By virtue of this definition, any “reasonable requirements” formulated and imposed

by a judge must be tied to the foregoing list of criminal offenses. Any judge-imposed

requirements must directly correlate to the elimination of “gang activity” as defined by the

Legislature.

Additionally, the modification of “requirements” by the term “reasonable” in Section

125.065 serves to further guide and limit a trial judge’s discretion. The plain meaning of the

term “reasonable” applies under our rules of statutory construction,58 and “reasonable” is

defined as “[f]air, proper, just, moderate, suitable under the circumstances.” 59 Thus, when

imposing “reasonable requirements” to prevent criminal gangs from engaging in future

activity, a judge’s discretion is restricted by the list of criminal offenses that make up the

definition of gang activity as well as the “reasonable” element.

There is also a process for review. Any “reasonable requirements” imposed by a

57
T EX . CIV . PRAC . & REM . CODE ANN . § 125.061(3).
58
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (“if the meaning
of the statutory text, when read using the established canons of construction relating to
such text, should have been plain to the legislators who voted on it, we ordinarily give
effect to that plain meaning.”) (citing Smith v. State, 789 S.W.2d 590, 592 (Tex. Crim.
App. 1990)).
59
B LACK’S L AW D ICTIONARY 656 (abridged 5th ed. 1983).
 MARTINEZ—17
judge are subject to appellate review.60 This adds an extra layer of protection from the

application and enforcement of arbitrary requirements that do not serve the statute’s

purpose.61

Finally, we recognize that some flexibility in a judge’s formulation and imposition of

“reasonable requirements” must exist due to the nature of the activity sought to be curtailed.

A judge must be afforded some discretionary authority to take into account the specific facts

involved in a particular case and tailor the “reasonable requirements” to those facts in an

effort to prevent future gang activity and effectuate the statute’s purpose.62 Such permissive

discretion granted by the Legislature does not render the statute violative of the separation

of powers doctrine.

Our determination is also supported by precedent. In Williams v. State, we decided

whether the Pink Bollworm Act constituted an unlawful delegation of legislative authority

to the Commissioner of Agriculture.63 The Legislature made it an offense to violate any

60
T EX. C IV. P RAC. & R EM. C ODE A NN. § 125.067(b).
61
Rhine, 297 S.W.3d at 323 (Keller, P.J., concurring) (“judicial review ensures
that the administrative agency’s rules and other actions actually conform to the legislative
standards.”).
62
See Land v. State, 581 S.W.2d 672, 673 (Tex. Crim. App. 1979) (“Very often
the areas that require regulation involve highly technical fields or areas where massive
accumulation of data is necessary. Faced with limitations on funds, time, manpower,
legislators find it impossible to acquire the requisite knowledge and expertise to enable
them to responsibly legislate in the area.”).
63
Williams, 176 S.W.2d at 179, 182-83.
 MARTINEZ—18
“proclamation, rule, or regulation promulgated by, or authorized to be issued,” under the Pink

Bollworm Act.64 Williams was convicted of failing to comply with an order issued by the

Commission governing the growing of cotton in a regulated zone.65 On appeal, we held that

the Legislature did not unlawfully delegate its lawmaking authority: “it must be remembered

that it was not the [Bollworm] Commission that made it unlawful to grow cotton in the areas

covered by the recommendations. The Legislature itself did that and provided the

punishment to be applied for a violation thereof.” 66 This statutory construct in this case is

similar to the one in Williams. Here, the Legislature made it a Class A misdemeanor offense

to violate a judge’s order imposing reasonable restrictions to curtail future criminal gang

activities.

Because the Legislature has established a policy and has set forth a primary fixed

standard, we hold that there is no separation of powers violation.

First Amendment—Right to Free Speech

An individual’s right to free speech and expressive conduct is protected from

“arbitrary governmental interference . . . .” 67 Therefore, as a general rule, the government

64
Id. at 182 (quoting T EX. P ENAL C ODE art. 1034).
65
Id. at 179, 182.
66
Id. at 183.
67
Cohen v. California, 403 U.S. 15, 19 (1971); see also Tinker v. Des Moines
Indept. Comm. School Dist., 393 U.S. 503, 513 (1969) (“The Constitution says that
Congress (and the States) may not abridge the right to free speech.”).
 MARTINEZ—19
is prohibited from “prescrib[ing] the form or content of individual expression.” 68

Our first task is to decide whether provision sixteen is a content-neutral or a content-

based time, place, and manner restriction.69 Whether the provision is content-neutral or

content-based dictates the level of scrutiny that we will apply in deciding whether provision

sixteen violates Martinez’s First Amendment rights.70

The court of appeals held that the gang hand sign restriction was not content-based

because it prohibited all gang hand signs, not just those used by the VC street gang, and

therefore was not focused on the particular message.71 We disagree with this determination.

A content-based regulation focuses on the content of speech and its impact on others.72

Provision sixteen banned the particular message associated with, and attributable to, the

68
Cohen, 403 U.S. at 24; see also United States v. Playboy Ent. Group, Inc., 529
U.S. 803, 812 (2000) (“Laws designed or intended to suppress or restrict the expression
of specific speakers contradict basic First Amendment principles.”).
69
See R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 382 (1992); Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989); Boos v. Barry, 485 U.S. 312, 319-20
(1988).
70
Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 763-64 (1994) (deciding
that a content-neutral injunctive provision cannot burden more “speech than necessary to
serve a significant government interest”; compare with Perry Education Association v.
Perry Local Educators’ Association, 460 U.S. 37, 45 (1983) (“For the State to enforce a
content-based exclusion it must show that its regulation is necessary to serve a compelling
state interest and it is narrowly tailored to achieve that end.”).
71
Martinez, 2009 Tex. App. LEXIS 1067, at *19-20.
72
Boos, 485 U.S. at 321.
 MARTINEZ—20
display of gang hand signs and clothing.73 That all gang hand signs, not just those used by

the VC street gang, were prohibited does not render that prohibition content-neutral. The

court of appeals’s reasoning would apply had provision sixteen banned all hand signs.

However, the content of the gang hand signs and clothing provided the basis for the

restrictions in provision sixteen and the purpose was to ban the message conveyed by such

signs and clothing.

Because we have found that provision sixteen is content-based, we will decide

whether it was narrowly tailored to serve a compelling state interest.74 We conclude that the

strict scrutiny standard has been met in this case. First, we conclude that there was a

compelling state interest. The prohibition in provision sixteen was made after the district

court judge found that the VC street gang constituted a public nuisance.75 In making this

73
See id. at 318-19 (concluding that picketing regulation was content-based
because it suppressed a classification of speech—signs critical of foreign
governments—but not all picketing in front of foreign embassies); People ex rel. Gallo v.
Acuna, 48 Cal. App. 4th 641, 657-658 (Cal. Ct. App. 1995) (holding that gang injunctions
provisions prohibiting specific hand gang signs and gang clothing is content-related; “it is
only the speech, symbols, gestures, and hand signs relating to two specific gangs.”),
vacated, 929 P.2d 596 (Cal. 1997); see e.g., Collin v. Smith, 578 F.2d 1197, 1202 (7th
Cir. 1978) (holding ordinance banning Nazi demonstration where symbolic clothing
would be worn is content-based). But see People v. Englebrecht, 88 Cal. App. 4th 1236,
1266 (Cal. Ct. App. 2001) (holding that injunction prohibiting “Posole” gang signs and
clothing is content-neutral; “[i]t is not the content of these expressions to which the
injunction looks but the fact of them and their effect on others.”).
74
See Madsen, 512 U.S. at 763-64 (observing that the content-neutral injunctive
provisions do not require the application of the heightened level of scrutiny set out in
Perry Ed. Ass’n.).
75
See T EX. C IV. P RAC. & R EM. C ODE A NN. § 125.065(a).
 MARTINEZ—21
determination, the judge specifically found:

• The Court, after examining the pleadings and attached affidavit, and
hearing evidence, finds there is evidence that proves a probable right
to recovery and a probable injury, specifically:

• Pursuant to Section 125.064 and 125.065, Plaintiff is entitled to
the relief demanded and that relief requires the restraint of
certain actions by the VC . . . GANG: . . . Mario Martinez . . . .

• Harm is imminent to Plaintiff, and if the Court does not issue the
temporary injunction order, Plaintiff will be irreparably injured
because the Defendants will continue for an indefinite period of
time to be members of the VC or members of a criminal
combination who regularly associate in organized criminal
activities. Moreover, unless enjoined, the Defendants will
continue indefinitely to use the “VC Safety Zone #1” for the
purpose of engaging in organized criminal activity as well as
other gang related conduct. Such acts constitute irreparable
harm because they jeopardize the safety and well being of the
citizens living in the “VC SAFETY ZONE #1”.

The State has a recognizable compelling interest in ensuring the safety of citizens in

the VC Safety Zone by preventing crime,76 and the judge’s order in this case was issued to

protect that interest.

Second, provision sixteen was narrowly tailored to serve the State’s compelling

interest. It prohibited a particular type of conduct and communication based on the relevant

circumstances. The making of hand gang signs and the wearing of gang clothing are a

76
See Madsen, 512 U.S. at 768 (the state has a “strong interest in ensuring the
public safety and order . . . and in protecting the property rights of all its citizens.”).
 MARTINEZ—22
primary feature of street gangs. 77 A street gang is identified first and foremost through its

hand signs and attire; it puts the public, and most of all, rival gangs, on notice of its existence

and presence. Rivalries exist between street gangs, and the use of gang hand signs and

clothing, the identifier, contributes to the onset of violence between rival gangs.

Additionally, gang hand signs and clothing are used to promote a criminal street gang’s

overall objective of engaging in gang activity.78 What is lawful on its own, in this instance,

is inextricably intertwined with the gang’s unlawful exploits. Specifically, as noted above,

the objectives of the VC gang, as determined by the district court judge, include some of the

following penal code offenses: organized criminal activity, terroristic threats, criminal

trespass, disorderly conduct, criminal mischief, unlawful possession of controlled substances,

and coercing, soliciting, and inducing gang membership.79 Therefore, as the judge implicitly

found, gang hand signs and clothing represent an integral part of VC’s illegal exploits, and

prohibiting gang hand signs and the wearing of gang clothing was one essential tool in

eliminating the gang’s public-nuisance activities.

Provision sixteen was also narrowed by geography. The restrictions applied only in

the VC Safety Zone clearly delineated by the district court judge. From our calculations of

77
See Gangs in Texas 2001: an Overview, Attorney General of Texas, at 7,
available at http://www.oag.state.tx.us/AG_Publications/pdfs/2001gangrept.pdf
(including gang hand signs and clothing in list as signs of gang involvement).
78
See T EX. C IV. P RAC. & R EM. C ODE A NN. § 125.061(3) (listing criminal offenses
as definition of gang activity).
79
Id.
 MARTINEZ—23
the delineated boundaries, the VC Safety Zone, at its largest points, was approximately 1.2

miles (or seventeen city blocks) by approximately 1.4 miles (or twenty-two city blocks) in

Wichita Falls. Martinez remained free to engage in making gang hand signs and to wear

gang clothing in every place in Wichita Falls, and beyond, with the exception of the defined,

public VC Safety Zone. We defer to the district court judge’s determination that this area

was necessary to stop the VC’s public-nuisance activities given the gang’s past practices in

that area.80 And, as an aside, we note that we are not confronted with a situation in which

an individual was charged with violating the prohibitions outlined in provision sixteen in a

private residence. Thus, we render no opinion on the issue of whether the prohibitions in

provision sixteen would violate an individual’s First Amendment right to free speech if the

facts showed that the individual was prosecuted for using hand gang signs and wearing gang

clothing inside a private residence.

Based on our analysis above, we hold that provision sixteen did not violate Martinez’s

right to free speech under the First Amendment.

Vagueness Challenge

A law is unconstitutionally vague when it “fails to define the criminal offense ‘with

sufficient definiteness that ordinary people can understand what conduct is prohibited and

80
See Schenck v. Pro-Choice Network of Western N.Y., 519 U.S. 357, 381-82
(1997) (deferring to the district court’s assessment that a fixed buffer zone around an
abortion provider was necessary to keep entrances clear in light of the defendants’ past
conduct in the buffer zone).
 MARTINEZ—24
in a manner that does not permit arbitrary and discriminatory enforcement.’” 81 Under the

first requirement—the fair warning requirement—a law must give an ordinary person notice

of what is prohibited.82 And under the second requirement, which prohibits arbitrary and

discriminatory enforcement, a law must provide explicit standards for the law’s application;

“[a] vague law impermissibly delegates basic policy matters to policemen, judges, and juries

for resolution on an ad hoc and subjective basis . . . .” 83

Because Martinez was charged with violating provision sixteen for making VC hand

gang signs and wearing VC gang clothing, we limit our fair-warning analysis to the actual

application of provision sixteen in this case.84 We conclude that provision sixteen was

sufficiently clear so that Martinez could understand that VC hand gang signs and clothing

were prohibited conduct. Martinez, determined to be an active VC gang member by the

district court judge (a fact he has never contested and ultimately admitted when pleading

guilty), must have been aware of the gang’s identifying hand signs and clothing and therefore

the precise conduct that he was charged with, and convicted of, violating.85 Indeed, we note

81
Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007) (quoting State
v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006)).
82
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
83
Id. at 108-09.
84
See Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2719 (2010)
(“[E]ven to the extent a heightened vagueness standard applies, a plaintiff whose speech
is clearly proscribed cannot raise a successful vagueness claim under the Due Process
Clause of the Fifth Amendment for lack of notice.”).
85
See id.
 MARTINEZ—25
that the arrest report in cause number 39396-F reflects that Martinez told the arresting officer

that the color of clothing that he was wearing were “his gang colors.” Thus, we find that his

vagueness challenge to the gang-clothing prohibition to be somewhat disingenuous.

We also reject the notion that provision sixteen permitted arbitrary and discriminatory

enforcement. We regularly permit police officers to rely on their training and experience in

making warrantless arrests,86 and we have recognized the ability of law enforcement to know

and determine gang affiliation by observing an individual’s clothing or tattoos.87 We

therefore conclude that, under these circumstances, it is reasonable to defer to the district

court judge’s determination that law enforcement patrolling the defined VC Safety Zone,

86
See McGee v. State, 105 S.W.3d 609, 614 (Tex. Crim. App. 2003) (“This court
has previously upheld arrests . . . when police officers personally observed behavior that
was not overtly criminal but when coupled with the officers’ prior knowledge produced
probable cause.”); Gonzales v. State, 648 S.W.2d 684, 687 (Tex. Crim. App. 1983) (“We
conclude that under the facts of this case the officers’ observations of appellant and his
attempt to conceal the balloons in his mouth, coupled with their knowledge of the use of
balloons to carry heroin in the manner observed, were sufficient to authorize appellant’s
immediate arrest and the contemporaneous seizure of the balloons.”); cf. Osbourn v.
State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002) (“Although it cannot be presumed that
everyone is capable of identifying marihuana by smell, a witness who is familiar with the
odor of marihuana smoke through past experiences can testify as a lay witness that he or
she was able to recognize the odor.”).
87
See e.g., Conner v. State, 67 S.W.3d 192, 201-02 (Tex. Crim. App. 2001)
(police officer testified that “one of appellant’s tattoos might have some connection with
gang membership”); Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995)
(“Officer Griego revealed that he had personally witnessed appellant wearing the gang
colors and clothing which indicated appellant’s membership in the Crips gang.”).
 MARTINEZ—26
based on their training and experience,88 would be able to recognize the hand gang signs and

clothing associated with gangs in the area and to apply the provision in a non-arbitrary and

non-discriminatory fashion.89

We conclude that the court of appeals was correct in holding that provision sixteen

was not unconstitutionally vague.

Conclusion

For the reasons given above, we affirm the court of appeals’s judgment.

DATE DELIVERED: October 6, 2010
PUBLISH

88
See T EX. C ODE C RIM. P ROC. A NN. art. 61.02 (providing for law enforcement
agencies to collect data on those involved in gangs for inclusion in local or regional
intelligence database); T EX. C ODE C RIM. P ROC. A NN. art. 61.10 (establishing Texas
Violent Gang Task Force); T EX. C ODE C RIM. P ROC. A NN. art. 61.11 (providing for the
attorney general to establish gang resource system to distribute information about Texas
gangs); cf. Wiede v. State, 214 S.W.3d 17, 27 (Tex. Crim. App. 2007) (“Although
probable cause is viewed objectively, Trooper McGuairt’s testimony about his training
and his opinion concerning the contents of the plastic bag provided a basis from which
the trial judge could have reasonably inferred that Trooper McGuairt possessed specific
knowledge that drugs are commonly packaged, carried, or transported in plastic bags.”);
Davis v. State, 202 S.W.3d 149, 156-57 (Tex. Crim. App. 2006) (finding it reasonable for
a magistrate to infer an officer’s prior experience with methamphetamine when the
officer stated that he smelled an odor associated with the manufacture of
methamphetamine when the officer did not offer any information about his previous
experience or encounters with such an odor).
89
See Schenck, 519 U.S. at 381-82 (deferring to the district court’s assessment
that a fixed buffer zone around an abortion provider was necessary to keep entrances clear
in light of the defendants’ past conduct in the buffer zone); see also Hill v. Colorado, 530
U.S. 703, 733 (2000) (recognizing that enforcing a law always requires some degree of
discretion by law enforcement and that a degree of judgment is acceptable at times).