Ex Parte Marcos M. Flores

ACCEPTED
14-14-00663-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
2/20/2015 5:05:38 PM
CHRISTOPHER PRINE
No. 14-14-00663-CR CLERK

In the
Court of Appeals
FILED IN
For the 14th COURT OF APPEALS
Fourteenth District of Texas HOUSTON, TEXAS
At Houston 2/20/2015 5:05:38 PM
CHRISTOPHER A. PRINE
 Clerk

No. 1969753
In the County Criminal Court at Law Number 5
Of Harris County, Texas



MARCOS M. FLORES
Appellant
V.
THE STATE OF TEXAS
Appellee



STATE’S APPELLATE BRIEF



DEVON ANDERSON
District Attorney
Harris County, Texas

ALAN CURRY
State Bar No: 05263700
Assistant District Attorney
Harris County, Texas

EDWARD HOLTZ
ALLEN OTTO
Assistant District Attorneys
Harris County, Texas

1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
FAX No.: 713/755-5809
curry_alan@dao.hctx.net

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
 STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State requests

oral argument only if oral argument is requested by the appellant.

i
 IDENTIFICATION OF THE PARTIES

Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

Counsel for the State:

Devon Anderson  District Attorney of Harris County

Alan Curry  Assistant District Attorney on appeal

Edward Holtz  Assistant District Attorney at trial

Allen Otto  Assistant District Attorney at trial

Appellant or criminal defendant:

Marcos M. Flores

Counsel for Appellant:

Carmen Roe  Counsel at trial and on appeal

Brian Wice  Counsel at trial

Kent Schaffer  Counsel at trial

James Kennedy  Counsel at trial

Trial Judge:

Hon. Margaret Harris  Presiding Judge

ii
 TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ......................................................i

IDENTIFICATION OF THE PARTIES ..........................................................................ii

INDEX OF AUTHORITIES .............................................................................................. v

STATEMENT OF THE CASE .......................................................................................... 1

STATEMENT OF FACTS .................................................................................................. 1

SUMMARY OF THE ARGUMENT ................................................................................. 1

PRE-TRIAL WRIT OF HABEAS CORPUS .................................................................... 3

REPLY TO POINT OF ERROR ONE ............................................................................ 4

Section 46.02(a-1)(2)(C) is not a regulation of speech or expression and, at
worst, only permits incidental limitations on First Amendment freedoms. ........ 6

Even viewed as a regulation of speech or expression, Section 46.02(a-1)(2)(C) is
content-neutral. ......................................................................................................... 10

Section 46.02(a-1)(2)(C) would even survive a challenge if viewed as a content-
based regulation......................................................................................................... 12

Section 46.02(a-1)(2)(C) does not represent an invalid restriction of a person’s
freedom of association. ............................................................................................ 15

REPLY TO POINT OF ERROR TWO .......................................................................... 19

The Proper Manner of Construing Section 46.02(a-1)(2)(C) .............................. 21

The appellant’s overbreadth challenge is founded upon strained or improper
interpretations of Section 46.02(a-1)(2)(C). ........................................................... 24

REPLY TO POINT OF ERROR THREE ..................................................................... 29

Lanzetta v. New Jersey .................................................................................................. 31

iii
 City of Chicago v. Morales ............................................................................................. 33

The Texas Statutory Scheme Concerning Criminal Street Gangs ...................... 35

CONCLUSION ................................................................................................................... 39

CERTIFICATE OF COMPLIANCE .............................................................................. 40

CERTIFICATE OF SERVICE ......................................................................................... 41

iv
 INDEX OF AUTHORITIES
CASES

Aguilar v. State,
29 S.W.3d 268 (Tex. App.—
Houston [14th Dist.] 2000, no pet.) ............................................................................... 16
Anderson v. State,
901 S.W.2d 946 (Tex. Crim. App. 1995) ....................................................................... 17
Aptheker v. Secretary of State,
378 U.S. 500 (1964) .......................................................................................................... 15
Asgeirsson v. Abbott,
696 F.3d 454 (5th Cir. 2012) ........................................................................................... 11
Barclay v. Florida,
463 U.S. 939 (1983) .......................................................................................................... 16
Beasley v. State,
902 S.W.2d 452 (Tex. Crim. App. 1995) ....................................................................... 17
Boos v. Barry,
485 U.S. 312 (1988) .......................................................................................................... 12
Boykin v. State,
818 S.W.2d 782 (Tex. Crim. App. 1991) ....................................................................... 21
Broadrick v. Oklahoma,
413 U.S. 601 (1973) .................................................................................................... 19, 23
Brown v. State,
98 S.W.3d 180 (Tex. Crim. App. 2003) ......................................................................... 21
Bynum v. State,
767 S.W.2d 769 (Tex. Crim. App. 1989) ....................................................................... 31
Cabrera v. State,
No. 01-05-00450-CR, 2006 WL 952410
(Tex. App.—Dallas, Mar. 30, 2006, pet. ref’d) ............................................................. 18
Cantu v. State,
339 S.W.3d 688 (Tex. App.—
Fort Worth 2011, no pet.) ................................................................................................. 8
City of Chicago v. Morales,
527 U.S. 41 (1999) ......................................................................................... 15, 20, 33, 34

v
City of Renton v. Playtime Theatres, Inc.,
475 U.S. 41 (1986) ............................................................................................................ 11
Colbert v. State,
108 S.W.3d 316 (Tex. Crim. App. 2003) ......................................................................... 8
Collins v. State,
501 S.W.2d 876 (Tex. Crim. App. 1973) ......................................................................... 8
Commission for Lawyer Discipline v. Benton,
980 S.W.2d 425 (Tex. 1998) ............................................................................................ 23
Cornejo v. State,
917 S.W.2d 480 (Tex. App.—
Houston [14th Dist.] 1996, pet. ref’d) ............................................................................. 8
Cuellar v. State,
70 S.W.3d 815 (Tex. Crim. App. 2002) ......................................................................... 28
Dawson v. Delaware,
503 U.S. 159 (1992) .................................................................................................... 15, 16
Dominguez v. State,
125 S.W.3d 755 (Tex. App.—
Houston [1st Dist.] 2003, pet. ref’d) ................................................................................ 8
Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council,
485 U.S. 568 (1988) .......................................................................................................... 23
Ex parte Doster,
303 S.W.3d 720 (Tex. Crim. App. 2010) ......................................................................... 3
Ex parte Ellis,
279 S.W.3d 1 (Tex. App.—
Austin 2008), aff’d, 309 S.W.3d 71
(Tex. Crim. App. 2010) .................................................................................................... 30
Ex parte Ellis,
309 S.W.3d 71 (Tex. Crim. App. 2010) ........................................................ 3, 19, 29, 30
Ex parte Forward,
258 S.W.3d 151 (Tex. Crim. App. 2008) ....................................................................... 28
Ex parte Smith,
178 S.W.3d 797 (Tex. Crim. App. 2005) ......................................................................... 3
Ex parte Spann,
132 S.W.3d 390 (Tex. Crim. App. 2004) ....................................................................... 22

vi
Ex parte Thompson,
442 S.W.3d 325 (Tex. Crim. App. 2014) ...................................................... 7, 10, 11, 19
Ex parte Weise,
55 S.W.3d 617 (Tex. Crim. App. 2001) ........................................................................... 3
Ex parte Williams,
786 S.W.2d 781 (Tex. App.—
Houston [1st Dist.] 1990, pet. ref’d) ................................................................................ 8
Flores v. State,
33 S.W.3d 907 (Tex. App.—
Houston [14th Dist.] 2000, pet. ref’d) ........................................................................... 30
Garcia v. State,
239 S.W.3d 862 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d) .............................................................................. 17
Goldberg v. State,
95 S.W.3d 345 (Tex. App.—
Houston [1st Dist.] 2002, pet. ref’d) .............................................................................. 17
Hooper v. California,
155 U.S. 648 (1895) .......................................................................................................... 23
In re Shaw,
204 S.W.3d 9 (Tex. App.—
Texarkana 2006, pet. ref’d) ............................................................................. 4, 20, 26, 27
Jefferson v. State,
346 S.W.3d 254 (Tex. App.—
Houston [14th Dist.] 2011, pet. ref’d) ............................................................................. 8
Juarez v. State,
961 S.W.2d 378 (Tex. App.—
Houston [1st Dist.] 1997, pet. ref’d) ................................................................................ 8
Lanzetta v. New Jersey,
306 U.S. 451 (1939) .................................................................................................... 31, 32
Long v. State,
931 S.W.2d 285 (Tex. Crim. App. 1996) ....................................................................... 30
Madsen v. Women’s Health Center, Inc.,
512 U.S. 753 (1994) .......................................................................................................... 13
Martinez v. State,
323 S.W.3d 493 (Tex. Crim. App. 2010) .................................................... 12, 13, 14, 35

vii
Mason v. State,
905 S.W.2d 570 (Tex. Crim. App. 1995) ....................................................................... 16
Members of City Council v. Taxpayers for Vincent,
466 U.S. 789 (1984) .......................................................................................................... 20
Miranda-Canales v. State,
368 S.W.3d 870 (Tex. App.—
Houston [14th Dist.] 2012, pet. ref’d) ............................................................................. 8
NAACP v. Alabama ex rel. Patterson,
357 U.S. 449 (1958) .......................................................................................................... 15
Nordyke v. King,
319 F.3d 1185 (9th Cir. 2003) ........................................................................................... 9
O’Brien v. United States,
391 U.S. 367 (1968) ............................................................................................................ 7
Ochoa v. State,
355 S.W.3d 48 (Tex. App.—
Houston [1st Dist.] 2010, pet. ref’d) .............................................................................. 28
Perry Education Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37 (1983) ............................................................................................................ 13
Pettigrew v. State,
999 S.W.2d 810 (Tex. App.—
Tyler 1999, no pet.) ............................................................................................................ 8
R.A.V. v. City of St. Paul,
505 U.S. 377 (1992) .......................................................................................................... 12
Rahmani v. State,
748 S.W.2d 618 (Tex. App.—
Houston [1st Dist.] 1988, pet. ref’d) .............................................................................. 23
Rivera v. State,
363 S.W.3d 660 (Tex. App.—
Houston [1st Dist.] 2011, no pet.)............................................................................ 27, 30
Saenz v. State,
976 S.W.2d 314 (Tex. App.—
Corpus Christi 1998, no pet.) ............................................................................................ 8
Sanchez v. State,
995 S.W.2d 677 (Tex. Crim. App. 1999) ....................................................................... 24

viii
Scott v. State,
322 S.W.3d 662 (Tex. Crim. App. 2010) ......................................................................... 9
Sell v. United States,
539 U.S. 166 (2003) ............................................................................................................ 8
Spence v. Washington,
418 U.S. 405 (1974) ............................................................................................................ 9
State v. Edmond,
933 S.W.2d 120 (Tex. Crim. App. 1996) ....................................................................... 22
Stevenson v. State,
963 S.W.2d 801 (Tex. App.—
Fort Worth 1998, pet. ref’d)............................................................................................ 18
Texas Dep’t of Transportation v. Barber,
111 S.W.3d 86 (Tex. 2003) .............................................................................................. 11
Turner Broadcasting System v. Federal Communications Comm’n,
512 U.S. 622 (1994) ............................................................................................................ 7
United States v. Abel,
469 U.S. 45 (1984) ............................................................................................................ 16
United States v. Lanier,
520 U.S. 259 (1997) .......................................................................................................... 28
United States v. Salerno,
481 U.S. 739 (1987) .......................................................................................................... 30
United States v. Williams,
553 U.S. 285 (2008) .......................................................................................................... 30
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489 (1982) .................................................................................................... 20, 23
Virginia v. Hicks,
539 U.S. 113 (2003) .......................................................................................................... 23
Ward v. Rock Against Racism,
491 U.S. 781 (1989) ................................................................................................ 7, 12, 30
Washington State Grange v. Washington State Republican Party,
552 U.S. 442 (2008) .......................................................................................................... 30
Webb v. State,
991 S.W.2d 408 (Tex. App.—
Houston [14th Dist.] 1999, pet. ref’d) ........................................................................... 19

ix
Willis v. State,
790 S.W.2d 307 (Tex. Crim. App. 1990) ......................................................................... 8
Wisconsin v. Mitchell,
508 U.S. 476 (1993) .......................................................................................................... 17

STATUTES

TEX. CIV. PRAC. & REM. CODE ANN. § 125.064 (West 2014)......................................... 36
TEX. CODE CRIM. PROC. ANN. art. 42.0197 (West 2014) ................................................ 36
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(a)(3) (West 2014) .................................. 36
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 13E (West 2014) ........................................ 36
TEX. CODE CRIM. PROC. ANN. art. 61.02 et seq. (West 2014) ........................................ 36
TEX. FAM. CODE ANN. § 54.0491 (West 2014)................................................................. 36
TEX. GOV’T CODE ANN. § 311.011(a) (West 2014) .............................................21, 24, 31
TEX. GOV’T CODE ANN. § 311.021 (West 2014).............................................................. 22
TEX. GOV’T CODE ANN. § 421.082(e) (West 2014) ......................................................... 36
TEX. GOV’T CODE ANN. § 499.051 (West 2014).............................................................. 36
TEX. GOV’T CODE ANN. § 508.227 (West 2014).............................................................. 37
TEX. GOV’T CODE ANN. § 772.007 (West 2014).............................................................. 37
TEX. PENAL CODE ANN. § 1.02 (West 2014) .................................................................... 23
TEX. PENAL CODE ANN. § 1.05 (West 2014) .................................................................... 23
TEX. PENAL CODE ANN. § 1.05(a) (West 2014) ............................................................... 28
TEX. PENAL CODE ANN. § 15.031(e) (West 2014) ........................................................... 37
TEX. PENAL CODE ANN. § 46.02(a-1)(2)(C) (West 2014) ........................................passim
TEX. PENAL CODE ANN. § 71.01(d) (West 2014) ......................................................passim
TEX. PENAL CODE ANN. § 71.02 (West 2014).................................................................. 37
TEX. PENAL CODE ANN. § 71.021 (West 2014)................................................................ 37
TEX. PENAL CODE ANN. § 71.022 (West 2014)................................................................ 37
TEX. PENAL CODE ANN. § 71.023 (West 2014)................................................................ 37
TEX. PENAL CODE ANN. § 71.028 (West 2014)................................................................ 37

x
TEX. TRANSP. CODE ANN. § 521.4565(b) (West 2014) .................................................... 37

RULES

TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................................. ii
TEX. R. APP. P. 39.1 ................................................................................................................. i
TEX. R. APP. P. 9.4(g) .............................................................................................................. i

CONSTITUTIONAL PROVISIONS

TEX. CONST. art. I, § 23 ......................................................................................................... 8

xi
TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

In cause number 1914785, the appellant was charged with the misdemeanor

offense of unlawfully carrying a weapon as a member of a criminal street gang. In

cause number 1969753, the appellant filed an application for a pre-trial writ of habeas

corpus, in which he claimed that the statute providing the basis for his prosecution

was facially unconstitutional (C.R. 4-15, 156-70, 212-27). The trial court denied relief

on the appellant’s application for a pre-trial writ of habeas corpus (C.R. 304-05; R.R.

III-4). A written notice of appeal was timely filed (C.R. 306-07).



STATEMENT OF FACTS

The State challenges all factual assertions in the appellant’s brief and presents

its account of the facts within its reply to the appellant’s points of error.



SUMMARY OF THE ARGUMENT

To the extent that any of the appellant’s constitutional challenges in this case

are in fact “as applied” challenges to the statute, and to the extent that any of the

appellant’s challenges are inappropriately raised as facial challenges to the statute, they
are not properly presented by way of an application for a pre-trial writ of habeas

corpus. They would not have been properly before the trial court, and they are not

properly before this Court by way of an interlocutory appeal.

Section 46.02(a-1) of the Penal Code does not regulate expressive activity, but

instead prohibits the carrying of a weapon in vehicles and watercraft under certain

circumstances. The statute does not prohibit being a member of a “criminal street

gang.” The statute does not prohibit wearing or displaying common identifying signs

or symbols. The statute does not even prohibit being a member of a group of

persons who continuously or regularly associate in the commission of criminal

activities. The State’s interest in suppressing and prosecuting violent crime is

nevertheless sufficiently important, such that any incidental limitation on First

Amendment freedoms is justified.

Section 46.02(a-1)(2)(C) does not reach a substantial amount of constitutionally

protected conduct. Therefore, the appellant’s overbreadth challenge must fail. The

appellant’s overbreadth challenge is also founded upon strained or improper

interpretations of Sections 46.02(a-1)(2)(C) and 71.01(d).

The appellant has failed to show that Sections 46.02(a-1)(2)(C) and 71.01(d) are

unconstitutionally vague in all of their applications. These statutes clearly and

unambiguously prevent a person from carrying a handgun in his vehicle if that person

is one of “three or more persons” “having a common identifying sign or symbol or an

2
identifiable leadership” “who continuously or regularly associate in the commission of

criminal activities.”



PRE-TRIAL WRIT OF HABEAS CORPUS

An application for a pre-trial writ of habeas corpus, followed by an

interlocutory appeal, is an “extraordinary remedy,” and appellate courts have been

careful to ensure that a pre-trial writ is not misused to secure pre-trial appellate review

of matters that in actual fact should not be put before appellate courts at the pre-trial

stage. Consequently, whether a claim is even cognizable on pre-trial habeas corpus is

a threshold issue that should be addressed before the merits of the claim may be

resolved. If a non-cognizable claim is resolved on the merits in a pre-trial habeas

corpus appeal, then the pre-trial writ has been misused. Ex parte Ellis, 309 S.W.3d 71,

79 (Tex. Crim. App. 2010) (citing Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim.

App. 2010); Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005)).

In that respect, an application for a pre-trial writ of habeas corpus can be used

to bring a facial challenge to the constitutionality of the statute that defines the

offense, but may not be used to advance an “as applied” challenge. Ex parte Ellis, 309

S.W.3d at 79 (citing Ex parte Weise, 55 S.W.3d 617, 620-21 (Tex. Crim. App. 2001)). If

a claim designated as a facial challenge is in fact an “as applied” challenge, courts

3
should refuse to consider the merits of the claim. Ex parte Ellis, 309 S.W.3d at 80. A

facial challenge to the constitutionality of a statute is difficult to mount successfully

because the challenger must establish that no set of circumstances exists under which

the statute is valid. In re Shaw, 204 S.W.3d 9, 14 (Tex. App.—Texarkana 2006, pet.

ref’d).

Throughout his brief, the appellant purports to be raising a facial challenge to

TEX. PENAL CODE ANN. § 46.02(a-1)(2)(C) (West 2014). To the extent that any of

the appellant’s challenges are in fact “as applied” challenges to the statute, and to the

extent that any of the appellant’s challenges are inappropriately raised as facial

challenges to the statute, they are not properly presented by way of an application for

a pre-trial writ of habeas corpus. They would not have been properly before the trial

court, and they are not properly before this Court by way of an interlocutory appeal.

If that is the case with regard to any of the challenges that the appellant has raised,

this Court need not and should not address the merits of the particular challenge.



REPLY TO POINT OF ERROR ONE

Under his first point of error, the appellant claims, “The trial court erred in

denying appellant’s First Amendment challenge to Penal Code § 46.02(a-1)(2)(C).”

4
The appellant claims that Section 46.02(a-1)(2)(C) regulates inherently expressive

content (appellant’s brief at 19-20). The State disagrees. Section 46.02(a-1) provides:

A person commits an offense if the person intentionally, knowingly, or
recklessly carries on or about his or her person a handgun in a motor
vehicle or watercraft that is owned by the person or under the person’s
control at any time in which:

(1) the handgun is in plain view; or

(2) the person is:

(A) engaged in criminal activity, other than a Class C
misdemeanor that is a violation of a law or ordinance
regulating traffic or boating;

(B) prohibited by law from possessing a firearm; or

(C) a member of a criminal street gang, as defined by
Section 71.01

TEX. PENAL CODE ANN. § 46.02(a-1) (West 2014). Section 71.01 of the Penal Code

defines “criminal street gang” as “three or more persons having a common identifying

sign or symbol or an identifiable leadership who continuously or regularly associate in

the commission of criminal activities.” TEX. PENAL CODE ANN. § 71.01(d) (West

2014). Even a cursory reading of the appellant’s brief reveals that he is largely

challenging the definition of “criminal street gang” as it is incorporated into Section

46.02(a-1)(2)(C).

5
Section 46.02(a-1)(2)(C) is not a regulation of speech or expression and, at
worst, only permits incidental limitations on First Amendment freedoms.

A reading of the plain text of Section 46.02(a-1) reveals that it does not regulate

expressive activity, whether protected by the First Amendment or not. Rather, the

statutory provision is plainly directed at prohibiting the carrying of a weapon in

vehicles and watercraft under certain circumstances. The statute does not prohibit

being a member of a “criminal street gang.” The statute does not prohibit wearing or

displaying common identifying signs or symbols. The statute does not even prohibit

being a member of a group of persons who continuously or regularly associate in the

commission of criminal activities. The statute plainly only prohibits the carrying of a

handgun in a vehicle or watercraft under certain circumstances.

The appellant has not identified or claimed a First Amendment right to carry a

handgun in a motor vehicle. The appellant has only challenged that portion of the

statute that makes it illegal for a person to carry a handgun in a vehicle when that

person is a member of a “criminal street gang.” Even if one concedes that

membership in a “criminal street gang,” as currently defined by the Texas Legislature,

is arguably covered by the First Amendment (which concession the State does not

make), the appellant’s First Amendment challenge to the statute would have to fail.

The United States Supreme Court has held that when “speech” and “non-

speech” elements are combined in the same course of conduct, a sufficiently

important governmental interest in regulating the non-speech element can justify

6
incidental limitations on First Amendment freedoms. Such a government regulation

is sufficiently justified

 if it is within the constitutional power of the Government;

 if it furthers an important or substantial governmental interest;

 if the governmental interest is unrelated to the suppression of free expression;

and

 if the incidental restriction on alleged First Amendment freedoms is no greater

than is essential to the furtherance of that interest.

O’Brien v. United States, 391 U.S. 367, 376-77 (1968).

Under this test, the regulation at issue need not be the least speech-restrictive

means of advancing the Government’s interests. The requirement of narrow tailoring

is satisfied if the regulation promotes a substantial governmental interest that would

be achieved less effectively absent the regulation. The regulation is considered

“narrowly tailored” for intermediate-scrutiny purposes, so long as the means chosen

are not substantially broader than necessary to achieve the Government’s interest.

Ex parte Thompson, 442 S.W.3d 325, 345 (Tex. Crim. App. 2014) (citing Turner

Broadcasting System v. Federal Communications Comm’n, 512 U.S. 622, 662 (1994); Ward v.

Rock Against Racism, 491 U.S. 781, 797-800 (1989)).

There is no doubt that the Legislature has the power to enact such laws so as to

prevent crime or the occasion for crime. Collins v. State, 501 S.W.2d 876, 877 (Tex.

7
Crim. App. 1973); Ex parte Williams, 786 S.W.2d 781, 783 (Tex. App.—Houston [1st

Dist.] 1990, pet. ref’d); TEX. CONST. art. I, § 23. See also Willis v. State, 790 S.W.2d 307,

314 (Tex. Crim. App. 1990). The Government’s interest in bringing to trial an

individual accused of a serious crime is also important, as is the Government’s need to

protect through application of the criminal law the basic human need for security. Sell

v. United States, 539 U.S. 166, 180 (2003).

Courts routinely are confronted with cases in which gang members have

utilized firearms and vehicles in order to carry out violent crime.1 A statute

criminalizing a criminal gang member’s possession of a firearm while he was riding in

a vehicle should be very effective in preventing many of these violent crimes. These

important government interests in suppressing and prosecuting crime are also

unrelated to any exercise of free expression recognized by the First Amendment.

The Ninth Circuit Court of Appeals has held that gun possession can be

speech where there is “an intent to convey a particularized message, and the

likelihood [is] great that the message would be understood by those who viewed it.”

Typically a person possessing a gun has no intent to convey a particular message, nor

1
See, e.g., Colbert v. State, 108 S.W.3d 316, 317 (Tex. Crim. App. 2003); Miranda-Canales
v. State, 368 S.W.3d 870, 871 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d);
Jefferson v. State, 346 S.W.3d 254 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d);
Cantu v. State, 339 S.W.3d 688, 689 (Tex. App.—Fort Worth 2011, no pet.); Dominguez
v. State, 125 S.W.3d 755, 759-60 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d);
Pettigrew v. State, 999 S.W.2d 810, 811 (Tex. App.—Tyler 1999, no pet.); Saenz v. State,
976 S.W.2d 314, 318 (Tex. App.—Corpus Christi 1998, no pet.); Juarez v. State, 961
S.W.2d 378, 380 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d); Cornejo v. State, 917
S.W.2d 480 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d).

8
is any particular message likely to be understood by those who view it. Nordyke v.

King, 319 F.3d 1185, 1190 (9th Cir. 2003) (quoting Spence v. Washington, 418 U.S. 405,

410-11 (1974)).

In Nordyke v. King, the court rejected a facial First Amendment challenge to a

firearm possession ordinance because the ordinance was not directed narrowly and

specifically at expression or conduct commonly associated with expression and

because possession of a gun is not commonly associated with expression. Nordyke,

319 F.3d at 1190. Cf. also Scott v. State, 322 S.W.3d 662, 669-70 (Tex. Crim. App.

2010) (offense of telephone harassment did not implicate First Amendment, even if

defendant’s conduct included spoken words, because conduct was accompanied by

invasion of other person’s privacy and intent to inflict emotional distress).

The State contends that its interest in suppressing and prosecuting violent

crime is sufficiently important, such that any incidental limitation on First

Amendment freedoms is justified. And Section 46.02(a-1)(2)(C) promotes those

substantial governmental interests, which would be achieved less effectively absent the

statute. The statute is also not substantially broader than necessary to achieve those

governmental interests. The appellant’s First Amendment challenge to Section

46.02(a-1)(2)(C) should, therefore, be rejected.

9
Even viewed as a regulation of speech or expression, Section 46.02(a-1)(2)(C)
is content-neutral.

For his part, the appellant has not analyzed the entirety of Section 46.02(a-

1)(2)(C) under the First Amendment, but has instead largely challenged only that

portion of the statute that incorporates the definition of “criminal street gang” under

Section 71.01 of the Penal Code. But as noted above, Section 46.02(a-1)(2)(C) does

not prohibit being a member of a “criminal street gang” or any other kind of gang.

The statute does not prohibit wearing or displaying common identifying signs or

symbols. The statute does not even prohibit being a part of a group of persons who

continuously or regularly associate in the commission of criminal activities.

Nevertheless, even if the State were to join issue with the appellant in this limited

consideration of the statute, the State would still have to disagree with the merits of

the appellant’s First Amendment challenge.

In the First Amendment context, there are two levels of scrutiny: strict

scrutiny and intermediate scrutiny. Strict scrutiny applies when a statute constitutes a

content-based regulation of expression. Under the strict scrutiny test, a regulation of

expression may be upheld only if it is narrowly drawn to serve a compelling

government interest. In this context, a regulation is “narrowly drawn” if it uses the

least restrictive means of achieving the government interest. Ex parte Thompson, 442

S.W.3d at 344. A law is considered to be content-based, and thus subject to the strict

scrutiny test, if it distinguishes favored speech from disfavored speech on the basis of

10
the ideas or views expressed. If it is necessary to look at the content of the speech in

question to decide if the speaker violated the law, then the regulation is content-based.

Ex parte Thompson, 442 S.W.3d at 345.

In some situations, however, a regulation can be deemed content-neutral on the

basis of the government interest that the statute serves, even if the statute appears to

discriminate on the basis of content. These situations involve government regulations

aimed at the “secondary effects” of expressive activity. In this type of situation, a

regulation that serves purposes unrelated to the content of expression is deemed

neutral, even if it has an incidental effect on some speakers or messages, but not

others. The government regulation at issue need only be justified without reference to

the content of the regulated speech. Ex parte Thompson, 442 S.W.3d at 345.

As noted above, Section 46.02(a-1)(2)(C) does not directly regulate any speech

or expression. It arguably only indirectly or secondarily regulates expression by

criminalizing the possession of a handgun in a vehicle while a person is possibly

engaged in that expression. This statute is directed at the crime that occurs when a

handgun is possessed and utilized from the relative safety and mobility of a moving

vehicle. The statute should, therefore, be viewed as content-neutral with regard to the

expression that it may incidentally regulate. See Texas Dep’t of Transportation v. Barber,

111 S.W.3d 86, 93-94 (Tex. 2003) (citing City of Renton v. Playtime Theatres, Inc., 475 U.S.

41, 48 (1986); Asgeirsson v. Abbott, 696 F.3d 454, 460 (5th Cir. 2012). On this basis as

11
well, the appellant’s First Amendment challenge to Section 46.02(a-1)(2)(C) should,

therefore, be rejected.

Section 46.02(a-1)(2)(C) would even survive a challenge if viewed as a content-
based regulation.

In Martinez v. State, a trial court imposed an injunction against members of a

criminal street gang, directly preventing them from engaging in various activities,

including:

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.

Martinez v. State, 323 S.W.3d 493, 497 (Tex. Crim. App. 2010). In addressing the

defendant’s First Amendment challenge to this particular portion of the injunction,

the Court of Criminal Appeals stated, “Our first task is to decide whether provision

sixteen is a content-neutral or a content-based time, place, and manner restriction.”

Martinez, 323 S.W.3d at 504 (citing R.A.V. v. City of St. Paul, 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)). “Whether the provision is content-neutral or content-based dictates the

level of scrutiny that we will apply in deciding whether provision sixteen violates [the

defendant’s] First Amendment rights.” Martinez, 323 S.W.3d at 504-05 (citing Madsen

12
v. Women’s Health Center, Inc., 512 U.S. 753, 763-64 (1994); Perry Education Ass’n v. Perry

Local Educators’ Ass’n, 460 U.S. 37, 45 (1983)).

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

others. In that respect, the Martinez court noted that provision sixteen in the trial

court’s injunction banned the particular message associated with, and attributable to,

the display of gang hand signs and clothing. Consequently, the court found the

particular provision of the injunction to be content-based. Martinez, 323 S.W.3d at

505. And the appellant has certainly made a strong argument based in part upon

Martinez that Section 46.02(a-1)(2)(C) is a content-based regulation (appellant’s brief at

20-21). As contrasted with provision sixteen of the trial court’s injunction in Martinez,

however, Section 46.02(a-1)(2)(C) does not prohibit being a member of a “criminal

street gang.” The statute does not prohibit wearing or displaying common identifying

signs or symbols. The statute does not even prohibit being a part of a group of

persons who continuously or regularly associate in the commission of criminal

activities. With regard to expression, the statute is content-neutral.

In any event, in Martinez, even though the Court of Criminal Appeals found the

particular provision at issue in that case to be content-based, the court nevertheless

found that the provision was narrowly tailored to serve a compelling state interest and

that, therefore, the strict scrutiny standard had been satisfied. Martinez, 323 S.W.3d at

505. “The State has a recognizable compelling interest in ensuring the safety of

13
citizens . . . by preventing crime, and the judge’s order in this case was issued to

protect that interest.” Martinez, 323 S.W.3d at 506.

Likewise, even if Section 46.02(a-1)(2)(C) were to be viewed as content-based

in some fashion, the State has a compelling interest in ensuring the safety of its

citizens by preventing crime. The Martinez court also held that the provision at issue

in that case

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 primary feature of street gangs. 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. 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 [defendant’s] 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.
Therefore, as the judge implicitly found, gang hand signs and clothing
represent an integral part of [the gang’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.

Martinez, 323 S.W.3d at 506 (citations omitted). Similarly, Section 46.02(a-1)(2)(C) was

enacted to protect the State’s compelling interest in ensuring the safety of its citizens

by preventing crime. Preventing an identified criminal gang member from possessing

a handgun while traveling in a vehicle is critical to helping prevent the violent crime

14
that so often occurs when these volatile combinations exist. On this basis as well, the

appellant’s First Amendment challenge to Section 46.02(a-1)(2)(C) should, therefore,

be rejected.

Section 46.02(a-1)(2)(C) does not represent an invalid restriction of a person’s
freedom of association.

The appellant also claims that Section 46.02(a-1)(2)(C) implicates First

Amendment protection because it restricts a person’s freedom of association and

assembly (appellant’s brief at 19). Once again, the State disagrees. See City of Chicago v.

Morales, 527 U.S. 41, 52-53 (1999) (plurality opinion) (finding that anti-loitering

ordinance directed at criminal street gangs did not impact First Amendment freedom

of association or assembly).

The First Amendment certainly protects an individual’s right to join groups and

associate with others holding similar beliefs. Dawson v. Delaware, 503 U.S. 159, 163-64

(1992) (citing Aptheker v. Secretary of State, 378 U.S. 500, 507 (1964); NAACP v.

Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958)). But the Constitution does not

erect a per se barrier to the admission of evidence concerning one’s beliefs and

associations simply because those beliefs and associations are protected by the First

Amendment. Dawson, 503 U.S. at 165.

In Dawson, the United States Supreme Court held that, because the prosecution

did not prove that the Aryan Brotherhood had committed any unlawful or violent

15
acts, or had even endorsed such acts, Aryan Brotherhood evidence was not relevant

to help prove any aggravating circumstance in that particular case. But the Court did

state that associational evidence might serve a legitimate purpose in showing that a

defendant represents a future danger to society. A defendant’s membership in an

organization that endorses the killing of any identifiable group, for example, might be

relevant to a jury’s inquiry into whether the defendant will be dangerous in the future.

Other evidence concerning a defendant’s associations might be relevant in proving

other aggravating circumstances. Dawson, 503 U.S. at 166.

So the United States Supreme Court has recognized that admission of evidence

of membership in a gang whose primary purpose is illegal activity is not barred by the

First Amendment. Aguilar v. State, 29 S.W.3d 268, 270 (Tex. App.—Houston [14th

Dist.] 2000, no pet.) (citing Dawson v. Delaware, 503 U.S. 159 (1992); United States v.

Abel, 469 U.S. 45 (1984); Barclay v. Florida, 463 U.S. 939 (1983)). Such evidence may

be admissible if it is shown to be “relevant” to the issues involved in the case. Mason

v. State, 905 S.W.2d 570, 576-77 (Tex. Crim. App. 1995).

In this case, the appellant has presented a facial challenge to Section 46.02(a-

1)(2)(C), so the State has not yet had the opportunity to prove that the appellant is a

“member” of a “criminal street gang,” as set forth within the statute and as defined in

Section 71.01(d). If the State fails to prove that beyond a reasonable doubt, the

appellant would be entitled to an acquittal. If the State fails to prove that the gang of

which the appellant was a member was a “criminal” street gang, the evidence of the

16
appellant’s gang membership would likewise be irrelevant. The State’s evidence

would suffer from the same shortcomings as the limited evidence presented by the

prosecution in Dawson. But as this is a pre-trial facial challenge to Section 46.02(a-

1)(2)(C), the occasion for presenting such evidence has not yet arisen.

Nevertheless, such testimony is now common in criminal cases. Even speech

or expression protected by the First Amendment may be admitted against a defendant

at the guilt/innocence stage of trial if the speech is relevant to issues presented at the

guilt/innocence stage. Goldberg v. State, 95 S.W.3d 345, 374 n.7 (Tex. App.—Houston

[1st Dist.] 2002, pet. ref’d) (citing Wisconsin v. Mitchell, 508 U.S. 476, 488 (1993) (“The

First Amendment, moreover, does not prohibit the evidentiary use of speech to

establish the elements of a crime or to prove motive or intent. Evidence of a

defendant’s previous declarations or statements is commonly admitted in criminal

trials subject to evidentiary rules dealing with relevancy, reliability, and the like.”).

Texas courts have previously recognized that testimony that certain of a

defendant’s tattoos had distinctive meanings and were common in particular gangs

supplied sound evidence of the defendant’s gang membership. Garcia v. State, 239

S.W.3d 862, 867 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (citing Beasley v.

State, 902 S.W.2d 452, 454 (Tex. Crim. App. 1995) (membership was established by

defendant’s wearing of gang colors and his association with gang members, not by

witness testifying that he or she knew that defendant was in gang); Anderson v. State,

901 S.W.2d 946, 948 (Tex. Crim. App. 1995) (police officer testified that he knew

17
defendant was gang member because he was in company of gang members and wore

gang tee shirt); Stevenson v. State, 963 S.W.2d 801, 803-04 (Tex. App.—Fort Worth

1998, pet. ref’d) (police officer testified that defendant’s tattoo had significance related

to gang activity, and that defendant used phrase “what’s up, cuz?” which has

distinctive meanings in same gang); Cabrera v. State, No. 01-05-00450-CR, 2006 WL

952410, *2 (Tex. App.—Dallas, Mar. 30, 2006, pet. ref’d) (testimony from police

officer that distinctive notches shaved into defendant’s eyebrows, visible in book-in

photograph, were common among members of certain gangs, from defendant’s

friend’s mother that defendant talked about getting teardrop tattoo, which had gang

meaning that tattooed person had killed someone, and that defendant associated with

gang members, was enough to show gang membership)).

The appellant claims that Section 46.02(a-1)(2)(C) “seeks criminal sanctions for

those associated with a particular group’s sign or symbol . . .” (appellant’s brief at 19).

The State disagrees. Section 46.02(a-1)(2)(C) in no way prevents someone from being

a member of a “criminal street gang.” The statute does not prohibit wearing or

displaying common identifying signs or symbols. The statute does not even prohibit

being a part of a group of persons who continuously or regularly associate in the

commission of criminal activities. The statute is a content-neutral regulation of the

right to possess a weapon in a vehicle under certain circumstances. The statute

furthers an important governmental interest in the prevention and suppression of

crime, and those governmental interests are unrelated to the suppression of free

18
expression. The appellant’s First Amendment challenge to the statute should,

therefore, be rejected. The appellant’s first point of error should be overruled.



REPLY TO POINT OF ERROR TWO

Under his second point of error, the appellant claims, “The trial court erred in

denying appellant’s challenge to Penal Code § 46.02(a-1)(2)(C) because it is

unconstitutionally overbroad.” To vindicate First Amendment interests and prevent a

chilling effect on the exercise of First Amendment freedoms, the overbreadth

doctrine allows a statute to be invalidated on its face, even if it has legitimate

application, and even if the defendant before the court has suffered no constitutional

violation. The overbreadth doctrine is “strong medicine” that should be employed

“sparingly” and “only as a last resort.” The overbreadth of a statute must not only be

real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.

Ex parte Ellis, 309 S.W.3d at 90-91 (citing Broadrick v. Oklahoma, 413 U.S. 601, 612-15

(1973)). See also Ex parte Thompson, 442 S.W.3d at 349-50.

Consequently, a reviewing court’s task is to determine whether the particular

statute at issue reached a substantial amount of constitutionally protected conduct. If

the statute does not, then the overbreadth challenge must fail. Webb v. State, 991

S.W.2d 408, 415 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (citing Village of

19
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982)). A statute

should not be invalidated for overbreadth merely because it is possible to imagine

some unconstitutional applications. In re Shaw, 204 S.W.3d at 15 (citing Members of City

Council v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984)).

One of the strongest arguments that the State has uncovered in support of the

rejection of the appellant’s overbreadth challenge comes from one of the cases upon

which the appellant heavily relies in support of his third point of error. In City of

Chicago v. Morales, 527 U.S. 41, 45-46 (1999), a case in which in which the United States

Supreme Court was confronted with the validity of a Chicago ordinance that

prohibited criminal street gang members from loitering together in a public place. In

briefly rejecting the overbreadth challenge to the ordinance, a plurality of the Court

stated,

[T]the law does not have a sufficiently substantial impact on conduct
protected by the First Amendment to render it unconstitutional. The
ordinance does not prohibit speech. Because the term “loiter” is defined
as remaining in one place “with no apparent purpose,” it is also clear
that it does not prohibit any form of conduct that is apparently intended
to convey a message. By its terms, the ordinance is inapplicable to
assemblies that are designed to demonstrate a group’s support of, or
opposition to, a particular point of view. Its impact on the social contact
between gang members and others does not impair the First
Amendment “right of association” that our cases have recognized.

Morales, 527 U.S. at 52-53 (plurality opinion) (citations omitted). Likewise, Section

46.02(a-1)(2)(C) of the Penal Coe does not prohibit being a member of a “criminal

street gang.” The statute does not prohibit wearing or displaying common identifying

20
signs or symbols, and it does not prohibit being part of a group with an identifiable

leadership. The statute does not even prohibit being a part of a group of persons who

continuously or regularly associate in the commission of criminal activities. The

statute also does not reach a substantial amount of constitutionally protected conduct.

Therefore, the appellant’s overbreadth challenge must fail.

The Proper Manner of Construing Section 46.02(a-1)(2)(C)

When construing a statute, a court should first look to its literal language to

ascertain its meaning. If the language of the statute is plain, then the court should

interpret the statute according to that plain language. However, if the language of the

statute is ambiguous or the plain meaning would lead to absurd results, then the court

should examine extra-textual sources to discern the meaning of the statute. Courts

employ these rules of statutory construction to fulfill a court’s constitutional duty to

construe the meaning of a particular statute in the way intended by the legislators who

enacted the law. Brown v. State, 98 S.W.3d 180, 183 (Tex. Crim. App. 2003); Boykin v.

State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991). See also TEX. GOV’T CODE

ANN. § 311.011(a) (West 2014).

This Court should also presume that the Legislature intended compliance with

the United States and Texas Constitutions. This Court should also presume that the

Legislature intended that the entire statute be effective, that the Legislature intended a

just and reasonable result, and that the Legislature intended a result that was feasible

21
of execution. TEX. GOV’T CODE ANN. § 311.021 (West 2014). See also Ex parte Spann,

132 S.W.3d 390, 393 (Tex. Crim. App. 2004); State v. Edmond, 933 S.W.2d 120, 124

(Tex. Crim. App. 1996).

When construing a provision of the Texas Penal Code, courts should also

keep in mind Section 1.02 of the Penal Code which provides:

The general purposes of this code are to establish a system of
prohibitions, penalties, and correctional measures to deal with conduct
that unjustifiably and inexcusably causes or threatens harm to those
individual or public interests for which state protection is appropriate.
To this end, the provisions of this code are intended, and shall be
construed, to achieve the following objectives:

(1) to insure the public safety through:

(A) the deterrent influence of the penalties hereinafter
provided;

(B) the rehabilitation of those convicted of violations of
this code; and

(C) such punishment as may be necessary to prevent likely
recurrence of criminal behavior;

(2) by definition and grading of offenses to give fair warning of
what is prohibited and of the consequences of violation;

(3) to prescribe penalties that are proportionate to the seriousness
of offenses and that permit recognition of differences in
rehabilitation possibilities among individual offenders;

(4) to safeguard conduct that is without guilt from condemnation
as criminal;

(5) to guide and limit the exercise of official discretion in law
enforcement to prevent arbitrary or oppressive treatment of
persons suspected, accused, or convicted of offenses; and

22
 (6) to define the scope of state interest in law enforcement
against specific offenses and to systematize the exercise of state
criminal jurisdiction.

TEX. PENAL CODE ANN. § 1.02 (West 2014). But provisions of the Texas Penal Code

are not to be strictly construed. Rather, they should be construed according to the

fair import of their terms, to promote justice, and to effect the objectives of the Penal

Code. TEX. PENAL CODE ANN. § 1.05 (West 2014).

When confronted with an overbreadth challenge, a court should not strike

down a statute as facially overbroad if its constitutionality can be preserved through a

“limiting construction” capable of removing the seeming threat or deterrence to

constitutionally protected expression. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).

Every reasonable construction must be resorted to in order to save a statute from

unconstitutionality. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades

Council, 485 U.S. 568, 575 (1988); Hooper v. California, 155 U.S. 648, 657 (1895). See also

Virginia v. Hicks, 539 U.S. 113, 118-19 (2003); Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 494 n.5 (1982); Commission for Lawyer Discipline v.

Benton, 980 S.W.2d 425, 439 (Tex. 1998).

Furthermore, when confronting an overbreadth challenge, statutory

provisions should not be read in isolation. Rather, the entire statute should be read as

a whole and its various provisions construed accordingly. See Rahmani v. State, 748

S.W.2d 618, 624 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d). In interpreting a

23
statute, the terms used must be read in the context in which they are used. Tex. Gov’t

Code Ann. § 311.011(a) (West 2014). See also Sanchez v. State, 995 S.W.2d 677, 684-85

(Tex. Crim. App. 1999) (holding that the term “unwelcome” applied to all proscribed

forms of “sexual harassment” listed in Section 39.03(c) of the Penal Code because

that construction made the most sense in the context of the overall statutory scheme).

The appellant’s overbreadth challenge is founded upon strained or improper
interpretations of Section 46.02(a-1)(2)(C).

The appellant claims that Section 46.02(a-1)(2)(c) is unconstitutionally

overbroad based upon the assertion that, “if three or more persons have an

identifying sign or symbol, they are by definition, a ‘criminal street gang’” (appellant’s

brief at 27) (referencing language in Section 71.01(d)). In making this patently absurd

claim, the appellant apparently believes that the Texas Legislature has defined two (or

perhaps three) groups of people that could comprise a “criminal street gang”: (1)

three or more persons having a common identifying sign or symbol, or (2) three or

more persons having an identifiable leadership who continuously or regularly

associate in the commission of criminal activity (appellant’s brief at 27). That is not

what the Legislature has provided.

Rather, Section 71.01 of the Penal Code defines “criminal street gang” as

“three or more persons having a common identifying sign or symbol or an identifiable

leadership who continuously or regularly associate in the commission of criminal

24
activities.” TEX. PENAL CODE ANN. § 71.01(d) (West 2014). Stated another way, the

Legislature has defined a “criminal street gang” as (1) three or more persons (2)

having (2a) a common identifying sign or symbol or (2b) an identifiable leadership (3)

who continuously or regularly associate in the commission of criminal activities.2 This

last phrase is the most important part of the definition of “criminal street gang.” To

remove it from any part of the definition would be absurd and clearly inconsistent

with the Legislature’s intent.

Contrary to the appellant’s assertions, it is not the State’s intention that the trial

court or this Court add language to the Legislature’s definition of “criminal street

gang.” It is not even the State’s intention that this Court add the word “and.” What

this Court should do is presume that the Legislature intended compliance with the

United States Constitution, and this Court should also presume that the Legislature

intended that the entire statute be effective. The fair import of the terms in these

statutes reveal that the Legislature intended that the object of this particular weapons

offense be someone who was (1) a member of (2) a group of three or more persons

(3) having (3a) a common identifying sign or symbol or (3b) an identifiable leadership

(4) who continuously or regularly associate in the commission of criminal activities.

2
By identifying the various phrases within the statute, the State is not “bifurcating”
the statute into two separate statutes, as claimed by the appellant (appellant’s brief at
28). But the statute is obviously made up of several individual phrases, each of which
should be given their appropriate meaning within the context of the statute as a
whole.

25
 The appellant claims that the State’s interpretation of the definition of

“criminal street gang” would render the Republican Party a “criminal street gang” if a

select few (“hypothetical group of”) members of the Republican Party were

continuously or regularly associated in the commission of voter fraud (appellant’s

brief at 30-31). This is pretty silly. That is not what the definition states, and that is

not even the State’s interpretation of the definition. The appellant’s claim would only

be justified if every single member of the Republican Party continuously or regularly

associated in the commission of voter fraud (and assuming that voter fraud always fit

within the definition of “criminal activity”).

And in that instance, a court might wish to deem that “Republican Party” a

“criminal street gang” based upon the plain language of the Legislature’s definition.

That may not be what the Legislature intended, but it would fit within the

Legislature’s definition. It would not be an absurd application of the statute (although

it would certainly be unusual), and—more to the point—it would not render the

statute overbroad. Moreover, as noted above, a statute should not be invalidated for

overbreadth merely because it is possible to imagine some unconstitutional

applications. In re Shaw, 204 S.W.3d at 15 (citing Members of City Council v. Taxpayers for

Vincent, 466 U.S. 789, 800 (1984)).

The appellant claims that the term “member” is unconstitutionally overbroad

because the term “member” is not defined in Section 46.02(a-1)(2)(C) and thereby

“does not require the member to know of the criminal street gang’s illicit activities,

26
nor act with a specific intent to further the gang’s unlawful goals.” (appellant’s brief at

35). The appellant also claims that “Section 46.02(a-1)(2)(C)’s application extends to

any member of a ‘criminal street gang’, even those unaware of its illicit activities.”

(appellant’s brief at 38). Under his first point of error, the appellant claims the statute

“seeks criminal sanctions for those associated with a particular group’s sign or symbol,

irrespective of their knowledge of, or personal involvement in, the group’s

lawful and unlawful activities.” (appellant’s brief at 19) (emphasis added). The

State disagrees with all of these assertions.

Contrary to these repeated suggestions throughout the appellant’s brief, the

Legislature has not defined a “criminal street gang” as including those that merely

advocate the commission of criminal activities (cf. appellant’s brief at 36-37). The

Legislature has instead defined a “criminal street gang” as that group of three or more

persons who continuously or regularly associate in the commission of criminal

activities. By its plain wording, the definition of “criminal street gang” requires that

each member of the group of “three or more persons” “continuously or regularly

associate in the commission of criminal activities.”

A culpable mental state is also typically required for all criminal offenses

(“criminal activities”). See TEX. PENAL CODE. ANN. § 6.02 (West 2014). See also, e.g.,

Rivera v. State, 363 S.W.3d 660, 667-68 (Tex. App.—Houston [1st Dist.] 2011, no pet.);

In re Shaw, 204 S.W.3d at 16. A person can be prosecuted under the particular statute

only if he intentionally, knowingly, or recklessly carries on or about his person a

27
handgun while he is in his vehicle, and then only if the person is a member of a group

of “three or more persons” “having a common identifying sign or symbol or an

identifiable leadership” “who continuously or regularly associate in the commission of

criminal activities.”

The appellant also latches onto the “rule of lenity” as a means of urging this

Court to adopt his strained construction of Section 46.02(a-1)(2)(C) (appellant’s brief

at 33). The rule of lenity seeks to ensure fair warning that conduct has been

criminalized by resolving any ambiguity in a criminal statute, so that it applies only to

conduct clearly covered. The rule of lenity is another name for “the canon of strict

construction of criminal statutes.” Ochoa v. State, 355 S.W.3d 48, 53 (Tex. App.—

Houston [1st Dist.] 2010, pet. ref’d) (quoting United States v. Lanier, 520 U.S. 259, 266

(1997)). Unlike the rule of lenity, however, which strictly construes criminal statutes,

the Texas Penal Code does not require its provisions to be strictly construed. Ochoa,

355 S.W.3d at 53 (citing TEX. PENAL CODE ANN. § 1.05(a) (West 2014) (“The

provisions of this code shall be construed according to the fair import of their terms,

to promote justice and effect the objectives of the code.”)).

Assuming the rule of lenity applies (which is not altogether clear), it is “another

extratextual factor for a court to consider if, and only if, a statute is ambiguous.”

Ochoa, 355 S.W.3d at 53 (quoting Cuellar v. State, 70 S.W.3d 815, 819 n.6 (Tex. Crim.

App. 2002); Ex parte Forward, 258 S.W.3d 151, 154 n.19 (Tex. Crim. App. 2008)

(“Even if the ‘rule of lenity’ applies . . . , it provides the rule of decision only when

28
both alternative choices or definitions are more-or-less equally reasonable.”) (internal

quotations omitted). But the statute is not ambiguous.

The fair import of the terms in Sections 46.02(a-1)(2)(C) and 71.01(d) reveal

that the Legislature intended that the object of the particular weapons offense be

someone who was a member of a group of three or more persons having a common

identifying sign or symbol or an identifiable leadership who continuously or regularly

associate in the commission of criminal activities. This Court should not consider

invalidating either of the two statutes merely because it might be possible to imagine

some unconstitutional applications. Section 46.02(a-1)(2)(C) does not reach a

substantial amount of constitutionally protected conduct, and the appellant’s

overbreadth challenge must fail. The appellant’s second point of error should be

overruled.



REPLY TO POINT OF ERROR THREE

Under his third point of error, the appellant claims, “The trial court erred in

denying appellant’s challenge to Penal Code § 46.02(a-1)(2)(c) because it is

unconstitutionally vague.” If First Amendment freedoms are not implicated, a facial

vagueness challenge can succeed only if it is shown that the law is unconstitutionally

vague in all of its applications. Ex parte Ellis, 309 S.W.3d at 80 (citing Washington State

29
Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008); United States v.

Salerno, 481 U.S. 739, 745 (1987); Sanchez v. State, 995 S.W.2d 677, 683 (Tex. Crim.

App. 1999)).

When First Amendment freedoms are implicated, a criminal law must: (1) be

sufficiently clear to afford a person of ordinary intelligence a reasonable opportunity

to know what is prohibited, (2) establish determinate guidelines for law enforcement,

and (3) be sufficiently definite to avoid chilling protected expression. When a

vagueness challenge involves First Amendment considerations, a criminal law may be

held facially invalid, even if the law has some valid application. Ex parte Ellis, 309

S.W.3d at 86 (citing Long v. State, 931 S.W.2d 285, 287-88 (Tex. Crim. App. 1996)).

“But perfect clarity and precise guidance have never been required even of regulations

that restrict expressive activity.” Ex parte Ellis, 309 S.W.3d at 86 (citing United States v.

Williams, 553 U.S. 285, 304 (2008); Ward v. Rock Against Racism, 491 U.S. 781, 794

(1989)).

Furthermore, as is the case with an overbreadth challenge, when confronting a

vagueness challenge, statutory provisions should not be read in isolation. Rather, the

entire statute should be read as a whole and its various provisions construed

accordingly. See Rivera, 363 S.W.3d at 673; Ex parte Ellis, 279 S.W.3d 1, 21 (Tex.

App.—Austin 2008), aff’d, 309 S.W.3d 71 (Tex. Crim. App. 2010); Flores v. State, 33

S.W.3d 907, 921 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). In interpreting a

statute, the terms used must be read in the context in which they are used. Bynum v.

30
State, 767 S.W.2d 769, 774 (Tex. Crim. App. 1989); Tex. Gov’t Code Ann. §

311.011(a) (West 2014).

Lanzetta v. New Jersey

In support of his vagueness challenge, the appellant relies upon Lanzetta v. New

Jersey, 306 U.S. 451, 452 (1939), in which the United States Supreme Court was

confronted with the validity of a New Jersey statute that provided, “Any person not

engaged in any lawful occupation, known to be a member of any gang consisting of

two or more persons, who has been convicted at least three times of being a

disorderly person, or who has been convicted of any crime, in this or in any other

State, is declared to be a gangster . . .” Every violation was punishable by fine not

exceeding $10,000.00 or imprisonment not exceeding 20 years, or both. In this New

Jersey statute, the term “gang” was only (impliedly) defined as “consisting of two or

more persons.” Lanzetta, 306 U.S. at 453.

The Court in Lanzetta, not surprisingly, found his prosecution under this statute

to be a violation of the defendant’s right to due process. By contrast, however,

“criminal street gang” has been defined by the Texas Legislature as “three or more

persons having a common identifying sign or symbol or an identifiable leadership

who continuously or regularly associate in the commission of criminal activities.”

TEX. PENAL CODE ANN. § 71.01(d) (West 2014).

31
 The appellant appears to primarily rely upon Lanzetta because, near the very

end of the Court’s opinion, the Court stated, “The enactment employs the expression,

‘known to be a member’. It is ambiguous.” Lanzetta, 306 U.S. at 458. The Court

went on to state:

There immediately arises the doubt whether actual or putative
association is meant. If actual membership is required, that status must
be established as a fact, and the word “known” would be without
significance. If reputed membership is enough, there is uncertainty
whether that reputation must be general or extend only to some persons.
And the statute fails to indicate what constitutes membership or how
one may join a “gang”.

Lanzetta, 306 U.S. at 458. In this very brief analysis, the Court seemed to have more

problem with the word “known” than it did with the word “member.” But the

primary holding of the Court was not directed at the phrase “known to be a

member,” but rather at the undefined terms “gang” and “gangster.”

In any event, Section 71.01(d) provides much more guidance as to what

constitutes a “criminal street gang,” and, therefore, who is a “member” of a “criminal

street gang”—one of the “three or more persons” “having a common identifying sign

or symbol or an identifiable leadership” “who continuously or regularly associate in

the commission of criminal activities.” And Section 46.02(a-1)(2)(C) is not directed at

a person who is known or reputed to be a member of a criminal street gang, but a

person who “is” in fact a member of a criminal street gang.

32
City of Chicago v. Morales

In support of his vagueness challenge, the appellant also relies upon the partial

plurality opinion in City of Chicago v. Morales, 527 U.S. 41, 45-46 (1999), in which the

United States Supreme Court was confronted with the validity of a Chicago ordinance

that prohibited criminal street gang members from loitering together in a public place.

Commission of the offense created by the ordinance involved four predicates.

 First, the police officer must reasonably believe that at least one of the two or

more persons present in a public place was a criminal street gang member.

 Second, the persons must be loitering, which the ordinance defined as

remaining in any one place with no apparent purpose.

 Third, the officer must then order all of the persons to disperse and remove

themselves from the area.

 Fourth, a person must disobey the officer’s order.

If any person, whether a gang member or not, disobeyed the officer’s order, that

person was guilty of violating the ordinance. The Chicago Police Department

promulgated a general order to govern the ordinance’s enforcement. The general

order

 confined the authority to arrest gang members who violated the ordinance to

sworn members of the Gang Crime Section and certain other designated

officers;

33
  established detailed criteria for defining street gangs and membership in such

gangs;

 provided that the ordinance would only be enforced in areas designated by

district commanders as those in which the presence of gang members had a

demonstrable effect on the activities of law abiding persons in the surrounding

community.

Morales, 527 U.S. at 47-49. It is clear from the Court’s opinion (both the plurality and

the majority) that the Court was chiefly concerned with the “loitering” aspect of the

ordinance’s provisions. See Morales, 527 U.S. at 53-60 (plurality opinion); Morales, 527

U.S. at 60-64 (majority). The majority opinion explained,

It is true . . . that the requirement that the officer reasonably believe that
a group of loiterers contains a gang member does place a limit on the
authority to order dispersal. That limitation would no doubt be
sufficient if the ordinance only applied to loitering that had an apparently
harmful purpose or effect, or possibly if it only applied to loitering by
persons reasonably believed to be criminal gang members. But this
ordinance, for reasons that are not explained in the findings of the city
council, requires no harmful purpose and applies to nongang members
as well as suspected gang members. It applies to everyone in the city
who may remain in one place with one suspected gang member as long
as their purpose is not apparent to an officer observing them. Friends,
relatives, teachers, counselors, or even total strangers might unwittingly
engage in forbidden loitering if they happen to engage in idle
conversation with a gang member.

Morales, 527 U.S. at 62-63. It has apparently escaped the appellant’s notice that

Sections 46.02(a-1)(2)(C) and 71.01(d) are not nearly so broad as the loitering

ordinance in Morales. These statutes do not apply to gang members and non-gang

34
members alike. These statutes do not apply to those engaged in harmful and non-

harmful purposes alike. And these statutes do not apply to loitering. These statutes

apply to possession of a handgun in a vehicle by one of the “three or more persons”

“having a common identifying sign or symbol or an identifiable leadership” “who

continuously or regularly associate in the commission of criminal activities.”

The Texas Statutory Scheme Concerning Criminal Street Gangs

As noted above, in Martinez v. State, a trial court imposed an injunction against

members of a criminal street gang, directly preventing them from engaging in various

gang-related activities. Martinez, 323 S.W.3d at 497. In addition to addressing the

defendant’s First Amendment challenge to a particular provision in the injunction, the

Court of Criminal Appeals addressed the defendant’s claim that the provision was

unconstitutionally vague. The Martinez court rejected the notion that the provision

permitted arbitrary and discriminatory enforcement.

We regularly permit police officers to rely on their training and
experience in making warrantless arrests, and we have recognized the
ability of law enforcement to know and determine gang affiliation by
observing an individual’s clothing or tattoos. 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
[gang zone], based on their training and experience, 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.

Martinez, 323 S.W.3d at 507-08. The concept of being a gang member is not a new

35
arrival to the criminal justice system or to law enforcement. Officers have long been

able to make reasonable determinations as to who is a member of a group of “three or

more persons” “having a common identifying sign or symbol or an identifiable

leadership” “who continuously or regularly associate in the commission of criminal

activities.”

Numerous statutes have been passed by the Texas Legislature dealing with

gangs:

 TEX. CIV. PRAC. & REM. CODE ANN. § 125.064 (West 2014) (suit to enjoin
public nuisance, specifically those involved in gang activity);

 TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(a)(3) (West 2014) (community
supervision condition to avoid criminal street gang);

 TEX. CODE CRIM. PROC. ANN. art. 42.12, § 13E (West 2014) (electronic
monitoring of criminal street gang member on community supervision);

 TEX. CODE CRIM. PROC. ANN. art. 42.0197 (West 2014) (affirmative finding of
gang-related conduct);

 TEX. CODE CRIM. PROC. ANN. art. 61.02 et seq. (West 2014) (compilation of
information concerning criminal street gangs);

 TEX. FAM. CODE ANN. § 54.0491 (West 2014) (special programs for juvenile
offenders involved in gang activity);

 TEX. GOV’T CODE ANN. § 421.082(e) (West 2014) (annual report to governor
and legislature concerning threat of criminal street gangs);

 TEX. GOV’T CODE ANN. § 499.051 (West 2014) (notification of release from
prison of gang member (“member of a security threat group”);

36
  TEX. GOV’T CODE ANN. § 508.227 (West 2014) (electronic monitoring of
parolees involved in gang activity);

 TEX. GOV’T CODE ANN. § 772.007 (West 2014) (Texas Anti-Gang Grant
Program);

 TEX. PENAL CODE ANN. § 15.031(e) (West 2014) (enhanced punishment for
criminal solicitation of a minor);

 TEX. PENAL CODE ANN. § 71.02 (West 2014) (offense of engaging in organized
criminal activity);

 TEX. PENAL CODE ANN. § 71.021 (West 2014) (criminal violation of criminal
street gang injunction);

 TEX. PENAL CODE ANN. § 71.022 (West 2014) (coercing membership in
criminal street gang);

 TEX. PENAL CODE ANN. § 71.023 (West 2014) (offense of directing criminal
street gang);

 TEX. PENAL CODE ANN. § 71.028 (West 2014) (enhancement for offenses in
gang-free zones);

 TEX. TRANSP. CODE ANN. § 521.4565(b) (West 2014) (offense of
manufacturing counterfeit license as criminal street gang member).

Law enforcement officers, prosecutors, judges, and others in the criminal justice

system have long been able to make reasonable judgments based upon their training

and experience in confronting the various serious issues that have arisen because of

criminal street gangs, including determining the membership of those criminal street

gangs.

37
 The appellant has failed to show that Sections 46.02(a-1)(2)(C) and 71.01(d) are

unconstitutionally vague in all of their applications. These statutes clearly and

unambiguously prevent a person from carrying a handgun in his vehicle if that person

is one of “three or more persons” “having a common identifying sign or symbol or an

identifiable leadership” “who continuously or regularly associate in the commission of

criminal activities.” These statutes are sufficiently clear to afford a person of ordinary

intelligence a reasonable opportunity to know what is prohibited. They establish

determinate guidelines for law enforcement, and they are sufficiently definite to avoid

chilling protected expression. The appellant’s third point of error should be

overruled.



38
 CONCLUSION

It is respectfully submitted that all things are regular and that the judgment

should be affirmed.

DEVON ANDERSON
District Attorney
Harris County, Texas

/s/ Alan Curry

ALAN CURRY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 05263700
curry_alan@dao.hctx.net

39
 CERTIFICATE OF COMPLIANCE

The undersigned attorney certifies that this computer-generated document has

a word count of 9,199 words, based upon the representation provided by the word

processing program that was used to create the document.

/s/ Alan Curry

ALAN CURRY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 05263700
curry_alan@dao.hctx.net

40
 CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument has been mailed to the

appellant’s attorney at the following address on February 20, 2015:

Carmen M. Roe
Attorney at Law
440 Louisiana, Suite 900
Houston, Texas 77002

/s/ Alan Curry

ALAN CURRY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 05263700
curry_alan@dao.hctx.net

Date: February 20, 2015

41