Coggin v. State

• Citation: 123 S.W.3d 82
• Decision Date: 09 October 2003
• Docket Number: No. 03-02-00690-CR.,03-02-00690-CR.
• Parties: Robert Lee COGGIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

123 S.W.3d 82

Robert Lee COGGIN, Appellant, v. The STATE of Texas, Appellee.

No. 03-02-00690-CR.

Court of Appeals of Texas, Austin.

October 9, 2003.

Donald T. Cheatham, Austin, for appellant.

Todd A. Blomerth, Blomerth & Payne, Lockhart, for appellee.

Before Chief Justice LAW, Justices PATTERSON and DALLY.^*

OPINION

JAN P. PATTERSON, Justice.

Robert Lee Coggin appeals his conviction for the offense of disorderly conduct. A jury found that he intentionally or knowingly made an offensive gesture by raising his middle finger in a public place, which tends to incite an immediate breach of the peace. See Tex. Pen.Code Ann. § 42.01(a)(2) (West 2003). In his first three points of error, appellant contends that his conviction should be overturned because the statute is unconstitutional: facially unconstitutional by impermissibly restricting protected free speech, void for vagueness and overbreadth, and unconstitutional as applied by punishing protected free speech. In his fourth and fifth points of error, appellant challenges the legal and factual sufficiency of the evidence. For the reasons stated below, we reverse the judgment of conviction and render a judgment of acquittal.

BACKGROUND

On October 25, 2001, appellant was driving in the left lane south on Colorado Street (U.S. Highway 183) in Lockhart. Appellant's vehicle was a white car with spotlights on the side and handcuffs hanging from the rearview mirror. Appellant came upon another vehicle in the left lane that was traveling more slowly. There is nothing in the record to show that other persons or automobiles were present. Appellant proceeded to tailgate the car, flash his headlights, and motion for the car to move into the right lane so that he could pass. The other vehicle was driven by twenty-two-year-old John Pastrano, a jailer with the Caldwell County Jail; his wife, Robin, was a passenger. Pastrano, thinking that he was being pulled over by an unmarked police car, moved into the right lane. As appellant passed Pastrano's car, he allegedly gestured with his raised middle finger—or "shot the bird"¹—at Pastrano and his wife.

Pastrano, who testified that the incident "made [him] angry," called 911 and made a report of reckless driving. Officer James Cowan with the Lockhart Police Department responded to the dispatch and pulled appellant over soon after the call. After speaking with Pastrano, who had been called to the scene by the dispatcher, Cowan issued appellant a citation for the class C misdemeanor of "disorderly conduct-gesture." Appellant pled not guilty and initially waived a jury trial and counsel. He later retained counsel and in a one-day jury trial on October 21, 2002, was found guilty of the offense of disorderly conduct and fined $250.

ANALYSIS

That this conviction rests upon the unseemly gesture alone is clear from the charging instrument. Thus, appellant was not accused of threatening or otherwise endangering others on the road, or of reckless driving or tailgating. Nor does the State contend that the conduct is obscene. Appellant was charged solely with disorderly conduct by the gesture of extending his middle finger.

Constitutionality of Texas Penal Code Section 42.01(a)(2)

In his first and second points of error, appellant contends that section 42.01(a)(2) is unconstitutional on its face because it impermissibly proscribes rights of free speech and expression protected by the First and Fourteenth Amendments to the United States Constitution and Article I, section 8 of the Texas Constitution and is also vague and overbroad. Ordinarily, we do not reach constitutional issues unless necessary. We will nevertheless discuss these points of error in the interest of fully addressing the parties' primary arguments.

Before addressing the substance of appellant's constitutional claims, we conclude that we need not address appellant's Texas constitutional claims. Appellant has proffered no argument or authority concerning the protection afforded by the Texas Constitution or how that protection differs from the protection afforded by the United States Constitution. State and federal constitutional claims should be argued in separate grounds, with separate substantive analysis or argument provided for each ground. Muniz v. State, 851 S.W.2d 238, 251 (Tex.Crim.App.1993); Heitman v. State, 815 S.W.2d 681, 690-91 n. 23 (Tex.Crim.App.1991). We will not make appellant's state constitutional arguments for him. Muniz, 851 S.W.2d at 252.

We begin with the presumption that a statute is constitutional. Tex. Gov't Code Ann. § 311.021(1) (West 1998). A facial challenge to the constitutionality of a statute imposes a heavy burden because the challenger must establish that no set of circumstances exists under which the act would be valid. Briggs v. State, 789 S.W.2d 918, 923 (Tex.Crim.App.1990); Ex parte Anderson, 902 S.W.2d 695, 699 (Tex.App.-Austin 1995, pet. ref'd).

The statute under which appellant was charged provides:

§ 42.01. Disorderly Conduct

(a) A person commits an offense if he intentionally or knowingly:

(2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace.

Tex. Pen.Code Ann. § 42.01(a)(2). The First Amendment prohibits laws that abridge freedom of speech.² U.S. Const. amend. I. There are, however, certain classes of speech that are not afforded the protection of the First Amendment. "Fighting words" are one such class of speech, which are "personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Texas courts have uniformly held that section 42.01 applies to fighting words. Jimmerson v. State, 561 S.W.2d 5, 7 (Tex.Crim.App.1978) (holding that section 42.01(a)(4), by implication, applies only to fighting words); Duran v. Furr's Supermarkets, Inc., 921 S.W.2d 778, 785 (Tex.App.-El Paso 1996, writ denied) (holding that section 42.01(a)(1) applies only to fighting words); Ross v. State, 802 S.W.2d 308, 314-15 (Tex.App.-Dallas 1990, no pet.); Estes v. State, 660 S.W.2d 873, 875 (Tex.App.-Fort Worth 1983, pet. ref'd) (holding that section 42.01(a)(1) and (2) apply only to fighting words). Accordingly, we hold that the conduct proscribed under section 42.01(a)(2) falls within the "fighting words" exception and does not violate rights of free speech and expression protected by the First and Fourteenth Amendments to the United States Constitution. We overrule appellant's first point of error.

Concerning appellant's second point of error challenging the constitutionality of section 42.01(a)(2) for vagueness and overbreadth, a statute is unconstitutionally vague if it fails to give a person of ordinary intelligence fair notice that the statute forbids the contemplated conduct and if it encourages arbitrary and erratic arrests and convictions. Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). To determine whether the doctrine applies, we use a two-step process. First, we determine if the law gives a person of ordinary intelligence fair warning of the prohibited act. Second, we determine if the law provides explicit standards for enforcement by those who apply them. See Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). However, if the literal scope of the statute impinges on a First Amendment freedom, "the doctrine demands a greater degree of specificity than in other contexts." Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). On the other hand the right of free speech is not absolute at all times and under all circumstances. A statute is impermissibly overbroad when, "`in addition to proscribing activities which may constitutionally be forbidden, it sweeps within its coverage speech or conduct which is protected by the First Amendment.'" Bynum v. State, 767 S.W.2d 769, 772 (Tex.Crim.App.1989) (quoting Clark v. State, 665 S.W.2d 476, 482 (Tex.Crim.App.1984)).

A statute narrowly drawn to define and punish specific conduct lying within the domain of state power, such as the use in a public place of words likely to cause a breach of the peace, is not unconstitutionally vague. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-74, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). However, the Supreme Court has struck down statutes not limited in scope to fighting words that by their very utterance inflict injury or tend to incite an immediate breach of the peace. See City of Houston v. Hill, 482 U.S. 451, 462, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987); Gooding v. Wilson, 405 U.S. 518, 523, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972).

Appellant urges that section 42.01(a)(2) is vague and overbroad because it does not define "offensive gesture or display," "incite," "immediate," or "breach of the peace." A statute is not unconstitutionally vague merely because it fails to define words or phrases. Engelking v. State, 750 S.W.2d 213, 215 (Tex.Crim.App.1988); Ahearn v. State, 588 S.W.2d 327, 338 (Tex.Crim.App.1979). Statutory words are to be "read in context and construed according to the rules of grammar and common usage." Tex. Gov't Code Ann. § 311.011(a) (West 1998). When words are not defined in a statute, they are ordinarily given their plain meaning unless the statute clearly shows that they were used in some other sense. Daniels v. State, 754 S.W.2d 214, 219 (Tex.Crim.App.1988); Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979). Words defined in dictionaries with meanings so well known as to be understood by a person of ordinary intelligence have been held not to be vague and indefinite. Floyd v. State, 575 S.W.2d 21, 23 (Tex.Crim.App.1978); Anderson, 902 S.W.2d at 700. What we must do, then, is "to find the meaning of some not very difficult words." Northern Sec. Co. v. United States, 193 U.S. 197, 401...