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