Briggs v. State
Decision Date | 25 November 1987 |
Docket Number | No. 788-86,788-86 |
Citation | 740 S.W.2d 803 |
Parties | Phillip David BRIGGS, Jr., Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
J. Blake Withrow, Dallas, for appellant.
Henry Wade, Dist. Atty. and Constance M. Maher, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of the felony offense of unlawful possession of a prohibited weapon, namely a chemical dispensing device. V.T.C.A., Penal Code, § 46.06(a)(7). After finding appellant guilty, the trial court assessed punishment at two (2) years' imprisonment. The imposition of sentence was suspended and the appellant was placed on probation for two (2) years.
On appeal the Court of Appeals, responding only to appellant's first point of error, 1 reversed the judgment and ordered the cause remanded to the trial court for dismissal of the indictment, holding said § 46.06(a)(7), was unconstitutional. Briggs v. State, 714 S.W.2d 36 (Tex.App.--Dallas 1986). We granted the State's petition for discretionary review to determine the correctness of the Court of Appeals' decision impacting the constitutionality of a state statute, a question of first impression. See Tex.R.App.P., Rule 200(c)(2).
V.T.C.A., Penal Code, § 46.06 (Prohibited Weapons), provides in part:
(Acts 1983, 68th Leg., p. 4831, ch. 852, § 2.)
V.T.C.A., Penal Code, § 46.01 (Chapter Definitions), provides in part:
"In this chapter
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"(12) 'Chemical dispensing device' means a device, other than a small chemical dispenser sold commercially for personal protection, that is designed, made, or adapted for the purpose of causing an adverse psychological or physiological effect on a human being." (Emphasis added.)
(Acts 1983, 68th Leg., p. 4830, ch. 852, § 1.)
The indictment in pertinent part alleged that appellant on or about November 10, 1984 "did then and there unlawfully then and there knowingly and intentionally possess a prohibited weapon, to wit: a chemical dispensing device, namely, a tear gas grenade,...."
After setting forth the foregoing statutes the Court of Appeals wrote:
"When read without the exception, 2 'other than a small chemical dispenser sold commercially for personal protection,' the statute [§ 46.01 (12) ] prohibits possession of 'a device ... that is designed, made, or adapted for the purpose of causing an adverse psychological or physiological effect on a human being.' The scope of this prohibition is almost limitless. It could apply to a handgun, a knife, or even a gruesome mask or voodoo doll. Furthermore, even if the prohibition can be construed to apply to only chemical dispensers, there is no indication what chemicals are proscribed. It is impossible to determine whether this statute prohibits possession of a device only when it contains mace or tear gas, or whether the prohibition extends to devices containing substances such as insecticide, hairspray, and nitrous oxide.
Emphasis supplied.)
Citing cases that due process is violated when a statute forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differs as to its application, etc., the Court of Appeals, after only discussing § 46.01(12), wrote:
In its petition for discretionary review the State argues that the Court of Appeals erred in holding a penal statute "unconstitutionally vague" on its face with respect to hypothetical applications without applying the statute to the appellant's conduct. The State contends the Court of Appeals used the wrong analysis or standard in finding the statute vague with respect to certain conceivable applications noting that the court did not even address the facts of the instant case. 3
In Village of Hoffman Estates, et al. v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), the United States Supreme Court wrote:
"In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law.
102 S.Ct. at 1191, 1192. See also United States v. Westbrook, 817 F.2d 529, 532 (9th Cir.1987).
In Clark v. State, 665 S.W.2d 476, 483 (Tex.Cr.App.1984), this Court held that in a vagueness challenge, where no First Amendment rights are involved, the reviewing court need only scrutinize the statute to determine whether it is impermissibly vague as applied to the challenging party's specific conduct citing Hoffman Estates, supra, and United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975). 4
And in McDonald v. State, 693 S.W.2d 660, 661 (Tex.App.--Dallas 1985), the Court held that a vagueness challenge to an enactment will be upheld only if it is impermissibly vague in all of its applications, citing Clark. "One to whose conduct a statute clearly applies may not successfully challenge it for vagueness." Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561, 41 L.Ed.2d 439 (1974); 5 Carrasco v. State, 712 S.W.2d 623 (Tex.App.--Corpus Christi 1986); McDonald, supra, at 661.
Parent v. State, 621 S.W.2d 796 (Tex.Cr.App.1981), held that, when challenging the constitutionality of a statute, it is incumbent upon a defendant to show that in its operation the statute is unconstitutional to him in his situation; that it may be unconstitutional as to others is not sufficient. Margaret S. v. Edwards, 794 F.2d 994, 1000 (5th Cir.1986) (Concurring Opinion).
It seems clear then the Dallas Court of Appeals in the instant case did not use the proper analysis or standard in passing on the constitutionality of the statutes involved. An abatement of the cause will be ordered.
In passing we would call attention of the Court of Appeals to the fact that the constitutionality of a statute is not to be determined in any case unless such a determination is absolutely necessary to decide the case...
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