In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-17-00036-CR
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EX PARTE STEVEN JOSEPH ERIBARNE III
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On Appeal from the 258th District Court
Polk County, Texas
Trial Cause No. 24,764
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OPINION
Steven Joseph Eribarne III was charged with the offense of retaliation. See
Tex. Penal Code Ann. § 36.06 (West Supp. 2016). Eribarne filed an amended
application for pretrial writ of habeas corpus, in which he contended that the
retaliation statute is facially overbroad and vague under the First Amendment of the
United States Constitution. See id. After conducting a non-evidentiary hearing, the
trial court denied Eribarne’s application. In his sole appellate issue, Eribarne argues
that section 36.06 is unconstitutionally overbroad on its face in violation of the First
Amendment. We affirm the trial court’s order denying habeas relief.
1
Section 36.06 of the Texas Penal Code provides as follows, in pertinent part:
(a) A person commits an offense if the person intentionally or knowingly harms
or threatens to harm another by an unlawful act:
(1) in retaliation for or on account of the service or status of another as a:
(A)public servant . . . .
Id. The indictment alleged that Eribarne intentionally or knowingly harmed and
threatened to murder the victim “in retaliation for and on account of the service and
status of [the victim] as a public servant[.]” According to Eribarne’s petition for writ
of habeas corpus, the State bore the burden of demonstrating that the statute satisfies
strict scrutiny; that is, “the State must show that the statute is both necessary and
narrowly written to satisfy a compelling state interest.” Eribarne argued that the
statute restricts speech based on content and also restricts protected speech, is not
limited to true threats, and fails to meet the strict scrutiny standard. Eribarne
advances the same arguments on appeal.
Whether a statute is facially unconstitutional is a question of law that we
review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). In Webb
v. State, 991 S.W.2d 408 (Tex. App.—Houston [14th Dist. 1999], pet. ref’d), our
sister Court of Appeals addressed an overbreadth challenge to section 36.06. Id. at
412.1 The Webb court held that section 36.06 does not abridge constitutionally
1
The current version of section 36.06(a)(1) is identical to the text of the statute
as it existed when Webb was decided in 1999. See Tex. Penal Code Ann. §
2
protected speech and that the statute “survives the facial challenges to
overbreadth[.]” Id. at 414-15. The Webb court held that section 36.06 does not
implicate First Amendment protections because “[b]y its terms, the statute punishes
only those individuals who intentionally or knowingly harm or threaten to harm
another person by an unlawful act.” Id. at 415.
According to the Webb court, the statute only punishes threatening speech and
“does not reach a substantial amount of constitutionally protected conduct.” Id.
Because the statute punishes conduct rather than the content of speech alone and
bears a rational relationship to the State’s legitimate and compelling interest in
protecting public servants from harm, we reject Eribarne’s argument that we must
apply the strict scrutiny standard when analyzing his issue. See Broadrick v.
Oklahoma, 413 U.S. 601, 615 (1973); Ex parte Woodall, 154 S.W.3d 698, 702 (Tex.
App.—El Paso 2004, pet. ref’d); see also Ex parte Lo, 424 S.W.3d at 16-17 (noting
the distinction between regulating speech versus regulating conduct). We therefore
presume that the statute is valid, and that the Legislature did not act arbitrarily or
unreasonably in enacting the statute. Ex parte Lo, 424 S.W.3d at 15.
36.06(a)(1) (West Supp. 2016); Webb v. State, 991 S.W.2d 408, 413 (Tex. App.—
Houston [14th Dist. 1999], pet. ref’d).
3
We agree with the analysis of our sister Court of Appeals in Webb and
conclude that section 36.06 does not implicate First Amendment protections and is
not unconstitutionally overbroad. See id. at 412-15. Accordingly, we overrule
Eribarne’s sole issue and affirm the trial court’s order denying habeas relief.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on May 24, 2017
Opinion Delivered July 19, 2017
Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
4
Ex Parte Steven Joseph Eribarne III
Combined Opinion