Ex Parte Justin River Carter

ACCEPTED
03-14-00669-CR
4520315
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/16/2015 6:05:31 PM
JEFFREY D. KYLE
CLERK

FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
COURT OF APPEALS FOR THE THIRD DISTRICT3/16/2015
OF TEXAS6:05:31 PM
JEFFREY D. KYLE
Clerk
CASE NO.
03-14-00669-CR

EX PARTE JUSTIN RIVER CARTER

APPEAL FROM THE 207th DISTRICT COURT
COMAL COUNTY, TEXAS

BRIEF OF STATE-RESPONDENT

ORAL ARGUMENT CHARI L. KELLY
REQUESTED Texas Bar. No. 24057939
Comal County Criminal
District Attorney’s Office
150 N. Seguin Ave., Suite 307
New Braunfels, Texas 78130
kellyc@co.comal.tx.us
(830) 221-1300
(830) 608-2008 (facsimile)

Attorney for State-
Respondent
 IDENTITY OF PARTIES AND COUNSEL

Trial Judge: The Honorable Jack H. Robison
District Judge of the 207th District Court of
Comal County

State – Respondent: State of Texas

Counsel: Chari L. Kelly
Comal County Criminal
District Attorney’s Office
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130

Defendant – Applicant: Justin River Carter

Counsel: Chad P. Van Brunt
310 S. St. Mary’s Street
Suite 1840
San Antonio, Texas 78205

Donald H. Flanary, III
Goldstein, Goldstein, & Hilley
310 S. St. Mary’s Street
Suite 2900
San Antonio, Texas 78205

2
 TABLE OF CONTENTS

IDENTITIES OF INTERESTED PARTIES ............................................................ 2

TABLE OF CONTENTS .......................................................................................... 3

TABLE OF AUTHORITIES .................................................................................... 5

STATEMENT OF THE CASE ................................................................................. 8

ISSUES PRESENTED.............................................................................................. 9

STATEMENT OF FACTS ...................................................................................... 10

SUMMARY OF THE ARGUMENT ...................................................................... 12

ARGUMENT ........................................................................................................... 15

I. PRETRIAL APPLICATION FOR WRIT CANNOT BE USED TO
ADDRESS “AS APPLIED” UNCONSTITUTIONAL CLAIMS ............... 15

II. APPLICANT WAIVES ANY CLAIMS UNDER THE TEXAS
CONSTITUTION AS HE FAILED TO ADEQUATELY BRIEF THESE
ISSUES .......................................................................................................... 17

III. TEXAS PENAL CODE SECTIONS 22.07 (A)(4) AND (A)(5) ARE
FACIALLY CONSTITUTIONAL ................................................................ 18

A. The burden is on Applicant when mounting facial constitutional
challenges ....................................................................................... 18

B. The burden on content-based regulations is only reversed for
protected speech, not true threats .................................................. 19

C. Tex. Pen. Code sections 22.07 (A) 4 and (5) are not facially
unconstitutional for “overbreadth” and “vagueness” ................ 21

1. Overbreadth must be substantial to sustain a
constitutional challenge .................................................. 21

3
 2. A statute will not be held void for vagueness
if a person of ordinary intelligence can
understand its meaning................................................... 23

IV. APPLICANT’S TRUE THREAT IS NOT PROTECTED UNDER THE
FIRST AMENDMENT ................................................................................. 27

V. APPLICANT MISREPRESENTS FIFTH CIRCUIT AUTHORITY TO
THIS COURT ................................................................................................ 34

PRAYER .................................................................................................................. 38

CERTIFICATE OF SERVICE ................................................................................ 39

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

4
 TABLE OF AUTHORITIES

Cases Page No.

Ahearn v. State, 588 S.W.2d 327, 338 (Tex. Crim. App. 1979) ............................. 24

Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656 (2004) ................................... 20

Briggs v. State, 789 S.W.2d 918 (Tex. Crim. App. 1990) ....................................... 19

Coggin v. State, 123 S.W.3d 82 (Tex.App.—Austin 2003, pet. ref’d).................... 20

Cotton v. State, 686 S.W.2d 140 (Tex. Crim. App. 1985) ...................................... 23

Ely v. State, 582 S.W.2d 416 (Tex. Crim. App. [Panel Opinion] (1979) ............... 19

Ex parte Clore, 690 S.W.2d 899 (Tex. Crim. App. 1985)....................................... 15

Ex parte Dickerson, 549 S.W.2d 202 (Tex. Crim. App. 1977) ............................... 15

Ex parte Doster, 303 S.W.3d 720 (Tex. Crim. App. 2010) ..................................... 15

Ex parte Groves, 571 S.W.2d 888 (Tex. Crim. App. 1978) .................................... 15

Ex parte Morales, 416 S.W.3d 546 (Tex.App.—Houston [14th Dist]
2013, pet. ref’d) ...........................................................................................15, 16, 19

Ex parte Nyabwa, 366 S.W.3d 719 (Tex.App.—Houston [14th Dist.]
2011) ........................................................................................................................ 20

Ex parte Nyabwa, 14-11-00250-CR, 2012 WL 378220
(Tex.App.—Houston [14th Dist.] Feb. 7, 2012)(op. withdrawn)............................20

Ex parte Nyabwa, 366 S.W.3d 710 (Tex. Crim. App. 2012)................................... 20

Ex parte Rathmell, 717 S.W.2d 33, 48 (Tex. Crim. App. 1986) ............................. 15

Ex parte Smith, 178 S.W.3d 797 n.13 (Tex. Crim. App. 2005) .............................. 15

Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) ............................... 20
5
Ex parte Weise, 55 S.W.3d 617 (Tex. Crim. App. 2001) ..................................15, 16

Flores v. State, 33 S.W.3d 907 (Tex.App.–Houston [14th Dist.] 2000,
pet. ref’d) ...........................................................................................................24, 25

Flores v. State, 245 S.W.2d 432 (Tex. Crim. App. 2008) ....................................... 16

Goyzueta v. State, 266 S.W.3d 126, 130-131 (Tex.App.—Fort Worth
2008, no pet.) ....................................................................................................21, 22

Grant v. State, 2010 WL 311430 (Tex.App.—Waco 2010, no pet.) ...................... 16

Green v. State, 219 S.W.3d 84 (Tex.App.—Houston [1st Dist.] 2006, no pet.) ..... 23

Hadnot v. State, 884 S.W.2d 922 (Tex.App.—Beaumont 1994, no pet.) ............ 30

In re A.C., 48 S.W.3d 899 (Tex.App.—Fort Worth 2001, pet. denied) .................. 30

In re C.B.L., 08-00-00116-CV, 2001 WL 282761 (Tex.App.—El Paso
Mar. 22, 2001, no pet.)(mem. op., not designated for publication) ...................31, 32

In re Commitment of Browning, 113 S.W.3d 851 (Tex.App.—Austin
2003, pet. denied) ..................................................................................................... 23

In re Shaw, 204 S.W.3d 9 (Tex.App.—Texarkana 2006, pet. ref’d) ...................... 22

Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996) .................................. 25-27

Members of City Council of City of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789 (1984).............................................................................22, 23

Morehead v. State, 807 S.W.2d 577 (Tex. Crim. App. 1991) ................................. 18

Morgan v. State, 557 S.W.2d 512 (Tex. Crim. App. 1977)..................................... 24

Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002) ...............................18, 20

Santikos v. State, 836 S.W.2d 631 (Tex. Crim. App. 1992) ..............................19, 22

6
State ex rel. Lykos v. Fine, 330 S.W.3d 904
(Tex. Crim. App. 2011)......................................................................................19, 22

State v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App. 2013) .............................19, 22

United States v. Bagdasarian, 652 F.3d 1113 (9th Cir. 2011) .................... 11, 32-33

United States v. Morales, 272 F.3d 284 (5th Cir. 2001).................................... 34-37

United States v. Playboy Entm't Group, Inc.,
529 U.S. 803 (2000) ...........................................................................................19, 20

Virginia v. Black, 538 U.S. 343 (2003) .................................................11, 20, 27, 28

Walker v. State, 327 S.W.3d 790
(Tex.App.—Fort Worth 2010, no pet.) ..............................................................20, 37

Watts v. United States, 394 U.S. 705 (1969) ................................... 21, 26, 29-31, 36

Webb v. State, 991 S.W.2d 408, 413
(Tex.App.—Houston [14th Dist.] 1999, pet. ref'd)................................17, 18, 24, 26

Woods v. State, 153 S.W. 3d 413 (Tex. Crim. App. 2005)...................................... 16

Statutes and Other Authority Page No.

Texas Penal Code § 21.12 (Improper Relationship) ................................................ 22

Texas Penal Code §§ 22.07 (A) 4 and (5) (Terroristic Threat) ........................passim

Texas Penal Code § 28.03(d) (Criminal Mischief) .................................................. 11

Texas Penal Code Ann. §36.06(a) (Obstruction or Retaliation)..................24, 31, 32

7
 STATEMENT OF THE CASE

Applicant was indicted by the Grand Jury for one (1) count of Terroristic

Threat, charged by two alternative manner and means. (Tex. Pen. Code §22.07 (a)

(4) and (a) (5)). Applicant filed a pretrial writ of habeas corpus requesting that

this statute be declared facially unconstitutional and alternatively that it be found

unconstitutional as applied to the facts of his case. The trial court declined the

application for writ, and this interlocutory appeal ensued.

8
 ISSUES PRESENTED

1. Can an Applicant use a pretrial writ of Habeas Corpus as a vehicle to attack
the constitutionality of a statute as applied to him?

2. Can an Applicant seek relief under the Texas Constitution when he fails to
adequately brief the issue in his appeal?

3. Is the Terroristic Threat statute, Texas Penal Code sections 22.07 (A)(4) and
(5), facially unconstitutional because it does not define the terms “public
service” and “substantial group of the public?”

9
 STATEMENT OF FACTS

Applicant was indicted by the Grand Jury on April 10, 2013, for Terroristic

Threat, Texas Penal Code section 22.07 (a) (4) and Texas Penal Code section

22.07 (a) (5). The Applicant’s indictment states in relevant part:

PARAGRAPH I

. . . on or about the 13th day of February, 2013, JUSTIN RIVER
CARTER, hereinafter styled Defendant, did then and there, with the
intent to cause impairment or interruption of public communications,
public transportation, public water, gas or public supply, or other
public service, threaten to commit any offense involving violence to
any person or property, to wit: by threatening to “shoot up a
kindergarten, watch the blood rain down and eat the beating heart out
of one of them.”

PARAGRAPH II

. . . on or about the 13th day of February, 2013, JUSTIN RIVER
CARTER, hereinafter styled Defendant, did then and there, with the
intent to place the public or a substantial group of the public in fear of
serious bodily injury, threaten to commit any offense involving
violence to any person or property, to-wit: by threatening to “shoot up
a kindergarten, watch the blood rain down and eat the beating heart
out of one of them.”

Applicant filed a Motion to Quash the Indictment on October 29, 2013

alleging that the State “did not charge the manner and means” of Applicant’s threat

with enough specificity. Applicant argued that a kindergarten did not fit within the

definition of a “public service” and that that the State failed to allege which

“public” Applicant intended to place in fear. See generally Defendant’s Motion to

10
Quash the Indictment. Specifically, Applicant argued that the term “public

service” had a narrow and specific definition found in Texas Penal Code section

28.03(d) (Criminal Mischief). Defendant’s Motion to Quash at 3. During the

hearing on the Motion to Quash on December 13, 2013, Applicant’s counsel

referenced his impending motions to dismiss and a writ of habeas corpus, citing

United States v. Bagdasarian and Virginia v. Black to the Court in oral argument.

The Court denied the Defense Motion to Quash on December 20, 2013. Nine

months later, Applicant filed a Motion to Dismiss for “Vagueness,” a Motion to

Dismiss for “Violation of the First Amendment,” and an Application for Writ of

Habeas Corpus, again citing United States v. Bagdasarian and Virginia v. Black.

These motions were heard on August 26 and 27, 2014. On August 29, 2014, via

letter to both Applicant and the State, the trial court denied the motions to dismiss

and declined to grant the application for habeas corpus. On September 16, 2014,

Applicant requested that the trial court make findings of fact and conclusions of

law regarding these motions and the application for writ, and filed notice of

interlocutory appeal. After briefing by both parties, this request was denied on

October 23, 2014 and the trial court issued written orders the same day reflecting

its rulings of August 29, 2014.

11
 SUMMARY OF THE ARGUMENT

Applicant requests that the Court dismiss the charges against him, claiming

that his prosecution for a Terroristic Threat is an “affront” to the protections of free

speech, citing both the United States and Texas Constitutions. More specifically,

Applicant argues that Texas Penal Code sections 22.07 (A)(4) and (A)(5) are both

unconstitutional on their face and unconstitutional as applied to him. Applicant’s

brief ignores well settled law that a pretrial application for writ of habeas corpus

cannot be used as a vehicle to address as applied constitutional challenges.

Applicant’s has a remedy to address an as applied challenge with direct post-

conviction appeal, and these claims should be denied. Further Applicant failed to

brief any alleged Texas constitutional claims, and has waived this issue.

Statutes are presumed to be valid and the burden is on Applicant when

mounting a facial constitutional challenge. To prevail, a defendant must show that

the statute always operates unconstitutionally in all possible circumstances.

Applicant makes no attempt to meet this burden. Applicant erroneously believes

the State bears the burden in his case, but the burden is only reversed when

protected speech is regulated. True threats, such as threats of physical harm, have

never been considered protected speech.

Applicant’s claims that the terms “public service” and “substantial group of

the public” are overbroad are without merit. A statute that forbids intentional

12
conduct is rarely subject to a facial overbreadth challenge. The overbreadth must

be substantial, a statute will not be invalidated because it is possible to imagine

some unconstitutional applications. However, Applicant asks this Court to do

exactly that; he does not articulate how the statute will significantly compromise

the First Amendment.

Applicant also argues that the terms “public service” and “substantial group

of the public” are vague and require a definition rendering these sections of the

Penal Code unconstitutional. A statute will not be held void for vagueness if a

person of ordinary intelligence can understand its meaning. Every term in a statute

need not be defined, and Applicant’s claims otherwise are without merit.

Applicant’s threats to “SHOOT UP A KINDERGARTEN” and “EAT THE

BEATING HEART OF ONE OF THEM” are true threats and not subject to First

Amendment protections. His statements cannot simply be considered “political

hyperbole,” as they communicated a desire to harm others in the context of the

recent wave of school shootings.

Finally, Applicant misrepresents the holding of United v. States v. Morales

to the Court in support of his as applied constitutional argument. Morales did not

impose a requirement that true threats be communicated to their targets directly.

Rather the Fifth Circuit rejected this requested language in a jury charge and

13
upheld the defendant’s conviction, under circumstances strikingly similar to

Applicant’s actions in the instant case.

14
 ARGUMENT

I. PRETRIAL APPLICATION FOR WRIT CANNOT BE USED TO
ADDRESS “AS APPLIED” UNCONSTITUTIONAL CLAIMS

Habeas corpus is an extraordinary remedy that should not be used as a

substitute for an appeal. Ex parte Clore, 690 S.W.2d 899, 900 (Tex. Crim. App.

1985); Ex parte Groves, 571 S.W.2d 888, 890 (Tex. Crim. App. 1978); Ex parte

Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010); Ex parte Morales, 416

S.W.3d 546, 548 (Tex.App.—Houston [14th Dist] 2013, pet. ref’d.). Thus, an

application for pretrial writ of habeas corpus should not be entertained where there

is an adequate remedy by appeal after final judgment. Ex parte Groves, 571

S.W.2d at 890. Pretrial habeas corpus is not available to test the sufficiency of the

complaint, information, or indictment. Ex parte Dickerson, 549 S.W.2d 202, 203

(Tex. Crim. App. 1977).

On interlocutory review, appellate courts must be careful not to entertain an

application for writ of habeas corpus when there is an adequate remedy by direct,

post-conviction appeal. See Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App.

2001); see also Ex parte Smith, 178 S.W.3d 797, 801 n.13 (Tex. Crim. App. 2005)

(“[A] writ of habeas corpus cannot be used as a substitute for an appeal or to serve

the office of an appeal.” citing Ex parte Rathmell, 717 S.W.2d 33, 48 (Tex. Crim.

App. 1986)). Only issues cognizable on habeas grounds, such as those that protect

the applicant’s substantive rights or conserve the use of judicial resources may be
15
considered on interlocutory appeal. See Weise, 55 S.W.3d at 620; Ex parte

Morales, 416 S.W.3d at 548.

While a defendant may raise a facial challenge to a statute via pretrial writ, a

defendant must preserve an “as applied” constitutional challenge by raising it at

trial. Flores v. State, 245 S.W.2d 432, 437 (Tex. Crim. App. 2008); Grant v. State,

2010 WL 311430 (Tex.App.—Waco 2010, no pet.). Pretrial motions to dismiss,

rather than motions to quash, are meant to address those issues that can be

determined before there is a trial on the general issue of the case. Woods v. State,

153 S.W. 3d 413 (Tex. Crim. App. 2005).

In this case, Applicant seeks to receive habeas relief in one of two ways:

first, attack the facial constitutionality of the statute as “overbroad” and “void for

vagueness,” and second, attack the statute as a violation of the First Amendment as

applied to the Applicant’s personal circumstances. See Applicant’s Brief at 4, 13,

31, 32 (arguing that the Applicant’s statements could not be considered a “true

threat” since they were merely “sarcasm” and “hyperbole”).1 While a Defendant

may attack a statute via pretrial habeas alleging facial unconstitutionality, he may

not attack a statute via pretrial writ challenging the constitutionality as applied.

1
“Moreover, the context is clear that Mr. Carter’s post was sarcastic [sic] not a ‘true threat.’”
Applicant’s Brief at 14. “[A] hyperbolic response to the insult he ostensibly received.” Id. at 19.

16
 In this case Applicant has done exactly that in this application for pretrial

writ of habeas corpus. While Applicant’s treatise on sarcasm and movie quotes

may be fodder for jury argument, it is not appropriate or cognizable as a pretrial

writ. See Applicant’s Brief at 14-17. To the extent Appellant attacks the statute as

applied, he has an adequate remedy by direct, post-conviction appeal. Therefore

his First Amendment as applied argument cannot be considered through the

vehicle of a pretrial writ of habeas corpus and should be denied.

II. APPLICANT WAIVES ANY CLAIMS UNDER THE TEXAS
CONSTITUTION AS HE FAILED TO ADEQUATELY BRIEF
THESE ISSUES

In Applicant’s summary of the argument, he alleges that the “prosecution of

Justin Carter is an affront to the United States and Texas constitutional protections

of free speech, due process and due course of law pursuant to . . . Article 1, § § 8,

10, 12 and 19 of the Texas Constitution.” Applicant’s Brief at 4. However no

reference is again made to the alleged violations of the Texas Constitution until

Applicant’s Conclusion and Prayer for Relief. Applicant’s Brief at 31-32.

When an applicant fails to differentiate, and brief, his Texas Constitutional

claims apart from his federal claims, he has waived the issue. Tex. R. App. P. 38;

Webb v. State, 991 S.W.2d 408, 413 n.1 (Tex.App.—Houston [14th Dist.] 1999,

pet. ref’d) (“We note that Webb failed to separate his federal constitutional issues

from his state constitutional issues, thus advancing four multifarious points of
17
error. The Texas Court of Criminal Appeals has held that this presents nothing for

review.”) (citing Morehead v. State, 807 S.W.2d 577, 579 n. 1 (Tex. Crim. App.

1991)). As the Court of Criminal Appeals explicitly acknowledged in Morehead v.

State:

In his brief before this Court, appellant also cited the free speech
guarantee contained in Article I, § 8 of the Texas Constitution.
However, because appellant provided no argument or authority as to
the protection provided by the Texas Constitution, we consider the
point inadequately briefed and will not address it.

Morehead v. State, 807 S.W.2d 577, 579 n.1 (Tex. Crim. App. 1991) (internal

citations omitted).

Applicant has made no attempt to brief or discuss any Texas constitutional

claims, other than passing conclusory references in his summary, conclusion, and

prayer. As such, Applicant has not adequately briefed this issue and any relief

based on Texas Constitutional claims should be denied.

III. TEXAS PENAL CODE SECTIONS (A)(4) AND (A)(5) ARE
FACIALLY CONSTITUTIONAL

A. The burden is on Applicant when mounting facial constitutional
challenges.

When reviewing the constitutionality of a statute, it is presumed that the

statute is valid and that the legislature did not act unreasonably or arbitrarily by

enacting the statute. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002).

Courts are obliged to uphold a statute if the Court sees a reasonable construction
18
which will render it constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim.

App. [Panel Op.] 1979).

Facial challenges to a statute are difficult to mount successfully. Santikos v.

State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992). To prevail, the defendant

must establish that the statute “always operates unconstitutionally in all possible

circumstances.” State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013);

State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908-909 (Tex. Crim. App. 2011). The

reviewing court may only consider the statute as it is written, rather than how it

operates in practice. Id. at 908. The defendant, as the individual challenging the

statute, has the burden of establishing its unconstitutionality. Briggs v. State, 789

S.W.2d 918, 923 (Tex. Crim. App. 1990), Ex parte Morales, 416 S.W.3d at 549

(Tex.App.—Houston [14th Dist] 2013, pet. ref’d). When lodging a facial

challenge, it is not enough to argue that a statute might operate unconstitutionally

in a single circumstance, much less an extreme one. See Santikos, 836 S.W.2d at

633.

B. The burden on content-based regulations is only reversed for
protected speech, not true threats.

Applicant asserts that the burden is reversed when the statute regulates

speech based on its content, primarily citing United States v. Playboy Entm’t Grp.,

Inc. Brief for Applicant at 5. However, the cases Applicant cites dealt with

content-based restrictions on protected speech. United States v. Playboy Entm’t
19
Group, Inc., 529 U.S. 803, 812 (2000) (“The effect of the federal statute on the

protected speech is now apparent.”); see also Ex parte Nyabwa, 366 S.W.3d 719,

725 (Tex.App.—Houston [14th Dist.] 2011), opinion reinstated (Mar. 28, 2012),

opinion withdrawn and superseded sub nom; Ex parte Nyabwa, 14-11-00250-CR,

2012 WL 378220 (Tex.App.—Houston [14th Dist.] Feb. 7, 2012), opinion

withdrawn sub nom; Ex parte Nyabwa, 366 S.W.3d 710 (Tex. Crim. App. 2012)

(“Photography is a form of speech normally protected by the First Amendment.”);

Ex parte Thompson, 442 S.W.3d 325, 347 (Tex. Crim. App. 2014) (“…sexual

thoughts are included within the protection of the First Amendment”); Ashcroft v.

Am. Civil Liberties Union, 542 U.S. 656, 674 (2004) (Stevens, J., concurring)

(“COPA is a content-based restraint on the dissemination of constitutionally

protected speech.”).

When dealing with true threats, the burden remains on the challenger.

Walker v. State, 327 S.W.3d 790, 796 (Tex.App.—Fort Worth 2010, no pet.)

(citing Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002)). This is

because true threats are not protected speech under the First Amendment:

The protections afforded by the First Amendment, however, are not
absolute, and courts have long recognized that the government may
regulate certain categories of expression consistent with the
Constitution. [citing Virginia v. Black, 538 U.S. 343, 358 (2003)];
Coggin v. State, 123 S.W.3d 82, 87 (Tex.App.—Austin 2003, pet.
ref’d). The First Amendment permits “restrictions upon the content of
speech in a few limited areas, which are “of such slight social value as
a step to truth that any benefit that may be derived from them is
20
 clearly outweighed by the social interest in order and morality.”
Black, 538 U.S. at 358–59.

The First Amendment permits a State to ban a “true threat.” Id. at 359;
Watts v. United States, 394 U.S. 705, 708 (1969).

Id. (some internal citations omitted). As the Supreme Court explicitly noted in

Black, “the First Amendment permits content discrimination ‘based on the very

reasons why the particular class of speech at issue ... is proscribable.’” 538 U.S. at

362. Because Applicant’s conduct is a true threat—one that threatens physical

harm—and not protected speech, he assumes the burden of demonstrating that the

statute operates unconstitutionally in every circumstance.

C. Tex. Pen. Code sections 22.07 (A) (4) and (5) are not facially
unconstitutional for “overbreadth” and “vagueness.”

While Applicant originally argued to the trial court in his Motion to Quash

the indictment that the term “public service” is a narrow, specific, and defined term

in the Penal Code, he now makes the sweeping and contrasting argument that the

term “other public service” in section 22.07(a)(4), and the term “substantial group

of the public” in section 22.07(a)(5), is unconstitutionally overbroad and vague.

1. Overbreadth must be substantial to sustain a constitutional
challenge.

When an appellant challenges a statute both as unconstitutionally broad and

vague, the Court addresses the overbreadth challenge first. Goyzueta v. State, 266

S.W.3d 126, 130-131 (Tex.App.—Fort Worth 2008, no pet.). A statute that forbids

21
intentional conduct is rarely subject to a facial overbreadth challenge. Id. at 132.

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

Amendment challenge. See generally Members of City Council of City of Los

Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984). Before a statute will be

held unconstitutional on its face however, the overbreadth must be substantial. See

id. at 800. The concept of “substantial overbreadth” is not readily reduced to an

exact definition. A statute will not be invalidated for overbreadth merely because it

is possible to imagine some unconstitutional applications. Instead “there must be a

realistic danger that the statute itself will significantly compromise recognized

First Amendment protections of parties not before the Court.” Id. at 801; see also

In re Shaw, 204 S.W.3d 9, 15 (Tex.App.—Texarkana 2006, pet. ref’d) (denying a

pretrial writ of habeas to strike down the improper student teacher relationship

statute, Tex. Pen. Code section 21.12, as overbroad) (“Thus, even if this statute

could be said to infringe on fundamental First Amendment rights … there is no

evidence before us indicating [it] ‘reaches a substantial amount of constitutionally

protected conduct.’”).

Applicant in this case has made no attempt to show how Texas Penal Code

sections 22.07(a)(4) and (5) “always operate[] unconstitutionally in all possible

circumstances” as required by Rosseau, Santikos, and Lykos. Applicant fails to

articulate how the statute itself will significantly compromise recognized First

22
Amendment protections of other parties as required by the Supreme Court in

Members of City Council of City of Los Angeles. Applicant merely asserts that the

statute “results in the criminalization of a vast amount of constitutionally protected

speech” and “virtually any statement that includes language of violence toward a

person or property can be prosecuted” without any justification for these sweeping

claims. See Applicant’s Brief at 12-13. The statute is tailored to address limiting

the speech of only those who choose to trample on the rights of others by impairing

the public services that their tax dollars fund, as well as right their right to be free

from fear of serious bodily injury. The statute doesn’t limit all speech directed at

“public services” or the “public” and is not overbroad.

2. A statute will not be held void for vagueness if a person of
ordinary intelligence can understand its meaning.

A statute is void for vagueness if it fails to give a person of ordinary

intelligence fair notice that his contemplated conduct is forbidden or if the statute

encourages arbitrary and erratic arrests and convictions. Green v. State, 219

S.W.3d 84, 89 (Tex.App.—Houston [1st Dist.] 2006, no pet.) citing, Cotton v.

State, 686 S.W.2d 140, 141 (Tex. Crim. App. 1985). “A statute is

unconstitutionally vague if it either forbids or requires the doing of an act in terms

that require persons of common intelligence to guess at its meaning.” In re

Commitment of Browning, 113 S.W.3d 851, 863 (Tex.App.—Austin 2003, pet.

denied). A statute “need not be mathematically precise” and “need only give fair
23
warning, in light of common understanding and practices.” Flores v. State, 33

S.W.3d 907, 920-21 (Tex.App.—Houston [14th Dist.] 2000, pet. ref’d). A statute is

not unconstitutionally vague merely because its terms are not specifically defined.

Morgan v. State, 557 S.W.2d 512, 514 (Tex. Crim. App. 1977); Ahearn v. State,

588 S.W.2d 327, 338 (Tex. Crim. App. 1979). When words are not defined by

statute, they are ordinarily given their plain meaning and, if understood by a person

of ordinary intelligence, they are not vague and indefinite. Flores, 33 S.W.3d at

921. Even statutes that are not the “model of clarity” and contain undefined terms

are not considered unconstitutionally vague. Webb, 991 S.W.2d at 416-17. In

upholding the constitutionality of Texas Penal Code section 36.06, Retaliation, the

Fourteenth District Court Appeals noted:

[Defendant]’s main contention on this point is the supposed
grammatical impossibility in the statute. [Defendant] also argues out
that neither “witness” nor “retaliate” are statutorily defined. . . We
note that the statute, while not a model of clarity, does not present a
grammatical impossibility such that a person of ordinary intelligence
cannot understand it.

Webb, 991 S.W.2d at 416-17 (internal citations omitted).

Applicant asks this Court to assume that the terms “public service” and

“substantial group of the public” require a definition, as a person of ordinary

intelligence could not possibly discern what these terms mean. See Applicant’s

Brief at 9-11. While Applicant may not understand these terms, the citizens of

Comal County, as cited in the Applicant’s oral argument to the trial court,
24
assuredly do.2 Notwithstanding Applicant’s repeated complaints in his Brief, oral

argument, and Motion to Dismiss for Vagueness,3 they are simple terms with

common definitions that “need not be mathematically precise.” See Flores v. State,

33 S.W.3d at 920-21. Under Applicant’s rationale, every criminal offense in the

Texas Penal Code would be struck down as “vague” since every term of each

section is not defined mathematically.

Applicant cites Long v. State in support of his vagueness claim. Long

involved a vague portion of a harassment statute:

(a) A person commits an offense if, with intent to harass, annoy,
alarm, abuse, torment, or embarrass another, he: ...

(7)(A) on more than one occasion engages in conduct directed
specifically toward the other person, including following that
person, that is reasonably likely to harass, annoy, alarm,
abuse, torment, or embarrass that person;

(B) on at least one of those occasions by acts or words
threatens to inflict bodily injury on that person or to commit
an offense against that person, a member of that person's
family, or that person's property; and

2

Is it a substantial group of the public? I mean, is it two-thirds majority? Is it half
the people of Comal County? Is it a large number? Is it -- is it a thousand people?
Is it a percentage of the larger group? Is it five people, six people? I mean, what
number is a substantial group and of what public? You know, I have got numbers
in my brief about that. But what is it? Is it -- is it a hundred -- do we have to --
does he have the intent to put 114,000 members of this community in fear, or half
of them, or only 3,000 of them, or only ten of them?

R.R.Vol. 3, pp. 80-81.
3
See footnote 2; Brief for Applicant at 8-12.
25
 (C) on at least one of those occasions engages in the conduct
after the person toward whom the conduct is specifically
directed has reported to a law enforcement agency the conduct
described by this subdivision

Long v. State, 931 S.W.2d 285, 288 (Tex. Crim. App. 1996) (emphasis added).

While the appellant in that case conceded that Section 42.07(a)(7)(B) (involving a

threat) was reasonably specific, he argued (a)(7)(A) was vague and rendered the

statute unconstitutional. The Court agreed the terms in (a)(7)(A) were vague, being

susceptible to differing and uncertain meaning. Id. at 297. The Court found the

term “annoy” in particular to be too vague. See id. at 292. Applicant quotes

language from Long, apparently believing that case supports his position:

“[f]inally, where First Amendment freedoms are implicated, the law must be

sufficiently definite to avoid chilling protected expression.” Brief for Applicant at

11 (emphasis in original) (citing Long, 931 S.W.2d at 225). However, threats to

harm others are not constitutionally protected speech under the First Amendment.

See Webb, 991 S.W.2d at 415, citing Watts, 394 U.S. at 707-08; Jacobs v. State,

903 S.W.2d 848, 851 (Tex.App.—Texarkana 1995, pet. ref’d).

Contrary to Applicant’s impression, Long actually noted that the threat

requirement had the potential for:

clarifying the statute and placing it beyond the reach of First
Amendment concerns. In the present statute, however, those purposes
are fatally undermined by the threat requirement’s relationship to the
conduct requirement in (a)(7)(A). The stalking offense requires at

26
 least two instances of conduct, but only one of those instances need be
a threat.

Long, 931 S.W.2d at 291 (Tex. Crim. App. 1996) (emphasis added). The Court

explained that, though the legislature could legitimately punish the threat, it could

not punish protected conduct subsequent to the threat. Id. at 293-94 (“For example,

the legislature could not pass a law making it a crime to (1) on one occasion

physically assault a government official, and (2) on a separate occasion criticize

the official’s policies.”). Long supports the State’s position.4 Threats are not

protected speech, and the First Amendment is not implicated.

Tex. Pen. Code sections 22.07 (A) 4 and (5) are not overbroad and are

written in plain terms that do not require detailed explanations referencing Census

data as suggested by the Applicant. Applicant’s claims that they are

unconstitutionally overbroad and vague are without merit and should be denied.

IV. THE APPLICANT’S TRUE THREAT IS NOT PROTECTED UNDER
THE FIRST AMENDMENT.

Applicant also claims the First Amendment prohibits his prosecution. See

Applicants Brief at 6-8, 20-24. The Supreme Court in Virginia v. Black noted that

although the First Amendment denies a state power to prohibit the spread of social,
4
In distinguishing stalking statutes that had been upheld in other jurisdictions, the Court also
noted “a more specific mental state than a mere intent to annoy, such as intent to place in fear of
bodily injury, or with a more intense mental state, such as intent to frighten.” When dealing with
the conduct at issue in Long, the Court observed that “these kinds of limiting elements help to
avoid a vagueness problem by taking the First Amendment out of the picture.” Long, 931 S.W.2d
at 293 (emphasis added).
27
economic and political ideas, it permits restrictions on the content of speech in

limited areas which are “of such slight social value as a step to truth that any

benefit that may be derived from them is clearly outweighed by the social interest

in order and morality.” 538 U.S. 343, 359 (2003). The First Amendment therefore

allows States to ban “true threats.” Id. As the Court stated in that case:

“True threats” encompass those statements where the speaker means
to communicate a serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of individuals.
The speaker need not actually intend to carry out the threat. Rather, a
prohibition on true threats “protect[s] individuals from the fear of
violence” and “from the disruption that fear engenders,” in addition to
protecting people “from the possibility that the threatened violence
will occur.”

Id. at 359-60 (internal citations omitted). In Black, the Court noted the history of

cross burning as a signal of impending violence before holding that, consistent

with the First Amendment, a Virginia statute could ban cross burning with the

intent to intimidate. Id. at 363.

Applicant’s threats to “SHOOT UP A KINDERGARTEN” did not involve

an expression of political, social or economic ideas; they were of “such slight

social value as a step to truth” that any benefit from them is vastly outweighed by

the social interest in order. See id. at 359. Just as Black considered an expression in

its historical context, the Applicant’s statements were made and should be

28
considered in the context of their surrounding circumstances.5 In the wake of

numerous violent school atrocities, Applicant’s threats to attack a kindergarten

were calculated to create fear of violence in the recipients of his message.

Accordingly, Applicant’s statements were “true threats” that the State may

prohibit, consistent with the First Amendment. See id. at 363.

Applicant claims his statements were “merely hyperbole,” and did not

constitute a “true threat,” citing Watts v. United States for support. See Applicant’s

Brief at 8, 21. Applicant’s threat is easily distinguishable from the statement in

Watts. In Watts, the statute at issue made it a felony to knowingly and willfully

threaten the President. 394 U.S. at 706. During a political debate, the defendant in

Watts made a statement that in the event he was inducted into the Armed forces –

which he vowed would never happen – the first man he wanted to get in his sights

would be the President. Id. After making the conditional statement, the defendant

and the gathered crowd laughed. Id. at 707. The Supreme Court recognized the

statute – which criminalized a form of pure speech – was constitutional. Id.

However, against the backdrop of “a profound national commitment to the

principle that debate on public issues should be uninhibited, robust, and

wideopen,” the Court recognized that the defendant’s political hyperbole was not a

5
Applicant acknowledges the importance of context when citing Chaucer, although he seems
blissfully unaware of the immediate historical context of his own statements. See Applicant’s
Brief at 16-17.
29
true threat. Id. at 708. The Court stressed the context in that case: the defendant

intended to make a crude, conditional statement of political hyperbole at a debate,

and the crowd laughed in reaction. Id.

By contrast, Applicant in the present case was not involved in a political

debate, nor was he making a crude point on a public issue. Applicant admits the

statement was “distasteful” and “tactless.” See Applicant’s Brief at 18-19.

Applicant threatened to “SHOOT UP A KINDERGARTEN” and “WATCH THE

BLOOD OF THE INNOCENT RAIN DOWN.” Unlike Watts, the statement in

Applicant’s case was not conditional; he expressed a desire to take action.

Whereas the audience in Watts laughed, a witness to Applicant’s statements did not

laugh; she contacted the police, fearing the posted threat might be carried out.

Whether the threat is actually carried out or not, the reaction of the victim is some

evidence of Applicant’s intent. See In re A.C., 48 S.W.3d 899, 904 (Tex.App.—

Fort Worth 2001, pet. denied) (citing Hadnot v. State, 884 S.W.2d 922, 925–26

(Tex.App.—Beaumont 1994, no pet.).

The similarity of Applicant’s statements to missed warning signs predating

shootings such as the Columbine, Sandy Hook, and Virginia Tech disasters could

not be overlooked; they certainly created a reasonable fear in the complaining

witness. Moreover, after posting his threat to “SHOOT UP A KINDERGARTEN”

and “WATCH THE BLOOD OF THE INNOCENT RAIN DOWN,” the

30
immediate response to his message was “I hope you fucking bring [sic] in hell you

fucking prick.” The fact that Applicant followed this clearly negative reception of

his statements with the further deranged threat to “EAT THE BEATING HEART

OF ONE OF THEM” is still more evidence of his intent. As the Court in Watts

realized, and the context of the statement is key. See 394 U.S. at 708. Political

hyperbole drawing laughter at a debate is a far cry from Applicant’s threat to

commit an atrocity at a kindergarten, particularly in the context of a wave of school

shootings.

Indeed, another Texas court has distinguished a threat such as Applicant’s

from the political hyperbole at issue in Watts. In the El Paso Court of Appeals case

In re C.B.L., the juvenile defendant told his friend he wanted to stuff a pipe bomb

in the tailpipe of his teacher’s car. In re C.B.L., 08-00-00116-CV, 2001 WL

282761 (Tex.App.—El Paso Mar. 22, 2001, no pet.) (not designated for

publication). After his conviction under section 36.06(a)(1)(A) of the Penal Code,

the defendant challenged the statute as overbroad, arguing that his expression of

his frustration with his teacher to a school friend should not be considered a threat.

Id. at *2. The defendant cited Watts, arguing his statement should also be protected

speech. Id. at *3. In distinguishing Watts, the Court focused on the surrounding

circumstances:

[s]tatements like these however should be taken in context. Indeed, the
Court in Watts distinguished this kind of statement as not one uttered
31
 as a “true threat” but said as a “political hyperbole.” [Defendant’s]
statement can no way be taken as a “political hyperbole.” We are
unwilling to concede that an expression of frustration against a
teacher between two juveniles, absent precedent, should be
considered in the same league as a political speech. Since Tex. Pen.
Code Ann. § 36.06(a) distinguishes a threat to do harm by an unlawful
act from other kinds of speech, it is not overbroad.
Id. (internal citation omitted) (emphasis added). Tex. Pen. Code 22.07 sections (a)

4 and (a) 5 criminalize true threats and not simply “political hyperbole” as

Applicant suggests.

Applicant cites United States v. Bagdasarian, a Ninth Circuit Court of

Appeals decision for support. The Ninth Circuit is not controlling precedent, and in

any event, Bagdasarian is also distinguishable. In that case, the defendant posted a

prediction regarding the President: “Re: Obama fk the niggar, he will have a 50 cal

in the head soon.” United States v. Bagdasarian, 652 F.3d 1113, 1115 (9th Cir.

2011). Twenty minutes later, the defendant added “shoot the nig country fkd for

another 4 years+, what nig has done ANYTHING right? ? ? ? long term? ? ? ?

never in history, except sambos.” Id.

The Ninth Circuit began with the objective test, asking whether a reasonable

person would have interpreted the statement as a threat. Id. at 1119. The test

requires the fact finder to “look[] at the entire factual context of [the] statements

including: the surrounding events, the listener’s reaction, and whether the words

are conditional.” Id. (emphasis added). The Bagdasarian court found the

32
defendant’s statement was a mere prediction which did not convey an explicit or

implicit threat “that he himself will kill or injure Obama.” Id. Consequently, he

also did not “express his intent to shoot Obama.” Id. at 1123. The court also found

that the defendant’s statement in Bagdasarian was conditional. These findings led

the court to hold the statement was not an actual threat, despite the dissenting

justice’s focus on the listeners’ reaction. See id.; see also id. at 1124 (Wardlaw, J.,

dissenting).

The surrounding events in Applicant’s case include the recent wave of

violent school attacks. The statement in Applicant’s case was not conditional.

Unlike Bagdasarian, Applicant’s statement was not a mere prediction lacking any

indication of action by the Applicant. Applicant claimed he was going to take

action; he stated “I think I’ma SHOOT UP A KINDERGARTEN AND WATCH

THE BLOOD OF THE INNOCENT RAIN DOWN.” After at least one observer’s

negative reaction, Applicant added “AND EAT THE BEATING HEART OF ONE

OF THEM.” Applicant expressly communicated his intent to “shoot up” a

kindergarten. Unlike the statement of the defendant in Bagdasarian, every single

factor of the contextual objective test supports classifying Applicant’s statement in

this case as an actual threat. See id. at 1119. Applicant’s reliance on Bagdasarian

is therefore misplaced; the test expounded by the Ninth Circuit supports the State’s

position. See id.

33
 The First Amendment allows the State to ban “true threats.” Applicant’s

statement was of no social value as a “step to the truth;” it was not political

hyperbole or rhetoric, and was a true threat calculated to create fear. Applicant’s

topical reference to several cases does not support the proposition that his

statement was not a “true threat.” A closer examination of those cases

demonstrates they are clearly distinguishable, particularly in light of the emphasis

courts place on the context of the statement and the recent tragedies surrounding

Applicant’s violent threat.

V. APPLICANT MISREPRESENTS FIFTH CIRCUIT AUTHORITY TO
THIS COURT

On appeal, Applicant describes a “test” developed in the Fifth Circuit for the

application of a different criminal statute, 18 U.S.C.A. § 875, in United States v.

Morales. Brief for Applicant at 25. Applicant indicates the Court found that

“[f]irst, ‘the government must prove that the defendant has communicated the

threat to the target or someone he intended would communicate the threat to the

target,’ and second, ‘that the government must prove that the defendant intended to

make a threat.’” See Brief for Applicant at 25. Applicant further represents that:

Under the standard articulated in the Fifth Circuit, Mr. Carter would
have to specify a target. He would have to communicate his threat
either to the target directly, or to a third party that could reasonably
communicate the threat to the target. Mr. Carter neither specified a
target to an intended party nor a third party that would foreseeably
relay that threat to the target.
34
Id. at 25-26. Applicant misrepresents United States v. Morales to the Court. See

272 F.3d 284, 286, 288 (5th Cir. 2001). First, the excerpted quotation from

Morales in context actually reads: “[t]he court rejected [Morales’s] proposed

instructions that 1) the government must prove that the defendant has

communicated the threat to the target or someone he intended would communicate

the threat to the target, and 2) that the government must prove that the defendant

intended to make a threat.” Id. at 286. This was not a “standard” the Fifth Circuit

created; it was an instruction the defendant had requested and was denied by the

trial court. Furthermore, far from adopting that as its standard, the Fifth Circuit

came to the exact opposite of the conclusion Applicant tries to indicate in his brief

by affirming the trial court’s judgment. See id. at 288-89; see also Brief for

Applicant at 25.

In Morales, a student in Texas threatened to shoot and kill teachers and

students at Milby High during his internet chatroom conversation with a stranger in

Washington state. 272 F.3d at 285. Similarly to Applicant, he filed a pretrial

motion to dismiss on First Amendment grounds, “arguing that his statements to a

distant third party did not constitute a true threat under Supreme Court

jurisprudence.” After his motion was denied and he was convicted, Morales

appealed on three grounds. Id. at 286.

35
 In his first ground, Morales claimed his communication was not a “true

threat,” given the context in which he delivered the statement. Id. Among other

contextual factors, the Court noted Morales’s awareness of other school shootings

and his failure to indicate he was joking. Id. at 288. The Court further observed

that “the context of Morales’s statement is different from that in Watts. Unlike

Watts, Morales was not engaged in political speech as part of a public debate, in

which the listeners laughed in response to Watts’s comments.” Id. at 288.

In his second ground, Morales claimed that “his statements cannot, as a

matter of law, constitute a true threat because they were made to a random third

party who had no connection to Milby High School.” Morales, 272 F.3d at 288.

The Court rejected his contention, noting precedent had drawn no distinction

between threats communicated to the ultimate targets and those which were not. Id.

(“Again, the focus was on whether the threat ‘in its context would have a

reasonable tendency to create apprehension that its originator will act according to

its tenor.’”) The Court likewise rejected Morales’s third ground based on his

requested instructions, holding that it would not presume the general intent

statutory crime required that particular specific intent. Id. at 289.

In Applicant’s case, Applicant was certainly aware of several recent highly-

publicized school massacres, including Sandy Hook. See Brief for Applicant at 19.

He did not indicate he was joking, and continued to post his disturbing threats even

36
after at least one member of his audience reacted strongly to threat. Brief for

Applicant at 3, see also id. at 26 (“Mr. Carter had the purposeful intent to be

inflammatory…”).

Applicant tries to distinguish his circumstances from Walker v. State,

observing the absence of “body language” in his case. Brief for Applicant at 15.

(“Posts on an internet forum lack any sort of physical gesture to indicate a

statement’s meaning.”). Notably, Applicant typed his threatening language entirely

in capital letters for further emphasis. Applicant also apparently overlooks the fact

that Morales likewise involved an internet chatroom conversation absent the ‘body

language” Applicant claims is key to communicating a threat.

Applicant has misrepresented United States v. Morales by attempting to

leave the Court with the impression that its holding was the exact opposite of what

Morales actually found. Furthermore, though Applicant cited and was clearly

familiar with Morales, he has failed to even attempt to distinguish the facts of his

case from the similar facts and issues in that case, where relief was denied.

Applicant’s request to declare Texas Penal Code section 22.07 (a)(4) and

Texas Penal Code section 22.07 (a)(5) unconstitutional as applied to him is

without merit and should be denied.

37
 PRAYER

For the foregoing reasons, the State respectfully requests that Applicant’s

two points of error be overruled and his writ be denied in all respects.

Respectfully submitted,

/s/ Chari L. Kelly
Chari L. Kelly
Texas Bar. No. 24057939
Assistant Criminal District Attorney
Comal County
150 N. Seguin, Suite 307
New Braunfels, TX 78130
kellyc@co.comal.tx.us
(830) 221-1300
(830) 608-2008 (facsimile)

38
 CERTIFICATE OF SERVICE

I, Chari L Kelly, do hereby certify that a true and correct copy of this Brief

for the State has been delivered to Applicant JUSTIN RIVER CARTER’S attorney

of record in this matter:

Chad P. Van Brunt,
310 S. St. Mary’s Street
Suite 1840
San Antonio, Texas 78205
vanbruntlaw@live.com

By electronically sending it through efile.txcourts.gov e-filing, this 16th of March
2015.

/s/ Chari L. Kelly
Chari L. Kelly

39
 CERTIFICATE OF COMPLIANCE

I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas

Rules of Appellate procedure that the instant brief is computer-generated using

Microsoft Word and said computer program has identified that there are 6,999

words within the portions of this brief required to be counted by Rule 9.4(i)(1) &

(2) of the Texas Rules of Appellate Procedure.

The document was prepared in proportionally-spaced typeface using Times

New Roman 14 for text and Times New Roman 12 for footnotes.

/s/ Chari L. Kelly
Chari L. Kelly

40