Ex parte Carter

• Decision Date: 31 August 2015
• Docket Number: NO. 03-14-00669-CR,03-14-00669-CR
• Parties: Ex parte Justin River Carter
• Court: Texas Court of Appeals

Ex parte Justin River Carter

NO. 03-14-00669-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

August 31, 2015

FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT

NO. CR2013-159, THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Justin River Carter was arrested and charged by indictment, in two paragraphs alleging alterative manner and means, with terroristic threat. See Tex. Penal Code § 22.07(a)(4), (5). He filed a pretrial application for writ of habeas corpus challenging the constitutionality of the subsections of the terroristic threat statute under which he is charged. After conducting an evidentiary hearing, the trial court denied relief. In two points of error on appeal, appellant asserts that the trial court erred by not finding the statutory subsections under which he is charged facially unconstitutional and unconstitutional as applied to him. We affirm the trial court's order denying relief.

DISCUSSION

Facial Challenge

In his first point of error, appellant complains that the trial court abused its discretion in not finding subsections (a)(4) and (a)(5) of section 22.07 of the Texas Penal Code facially unconstitutional. He argues that these subsections are facially overbroad and vague in violation ofthe First, Fifth, and Fourteenth Amendments to the United States Constitution and Article I of the Texas Constitution. See U.S. Const. amend. I, XIV; Tex. Const. art. I, §§ 8, 10, 12, 19.¹

A claim that a statute is unconstitutional on its face may be raised by pretrial writ of habeas corpus because if the statute is facially invalid, then the charging instrument is void. Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001); Ex parte Joyner, 367 S.W.3d 737, 739 (Tex. App.—Houston [14th Dist.] 2012, no pet.); see Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010). We generally review a trial court's decision to grant or deny an application for writ of habeas corpus under an abuse of discretion standard. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006); Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.—Austin 2012, pet. ref'd). A trial court abuses its discretion when it acts without reference to any guiding rules or principles or when it acts arbitrarily or unreasonably. Ex parte Ali, 368 S.W.3d at 830. However, when the trial court's ruling and determination of the ultimate issue turns on the constitutionality of a statute, we review the trial court's ruling de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007); Ex parte Perusquia, 336 S.W.3d 270, 275 (Tex. App.—San Antonio 2010, pet. ref'd). A facial attack upon a penal statute is solely and entirely a legal question subject to de novo review. Ex parte Lo,424 S.W.3d 10, 14 (Tex. Crim. App. 2013); Karenev v. State, 281 S.W.3d 428, 435 (Tex. Crim. App. 2009).

Whenever we are confronted with an attack upon the constitutionality of a statute, we generally presume that the statute is valid and that the legislature did not act unreasonably or arbitrarily.² Ex parte Lo, 424 S.W.3d at 14-15; State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013); Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Webb v. State, 109 S.W.3d 580, 582 (Tex. App.—Fort Worth 2003, no pet.); Ex parte Dave, 220 S.W.3d 154, 156 (Tex. App.—Fort Worth 2007, pet. ref'd). The burden rests upon the person who challenges the statute to establish its unconstitutionality. Rousseau, 396 S.W.3d at 557; Rodriguez, 93 S.W.3d at 69; Garcia v. State, 212 S.W.3d 877, 887 (Tex. App.—Austin 2006, no pet.). We must uphold a statute if we can determine a reasonable construction that will render it constitutional and carry out legislative intent. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979); Garcia, 212 S.W.3d at 887.

To prevail on a facial challenge to the constitutionality of a statute, a party generally must show the statute always operates unconstitutionally, in all possible circumstances. Rosseau, 396 S.W.3d at 557; State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011); see Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992) ("A facial challenge to a statute is the most difficult challenge to mount successfully because the challenger must establish that no setof circumstances exists under which the statute will be valid."). In a facial challenge to a statute's constitutionality, courts consider the statute only as it is written, not how it operates in practice. Salinas v. State, ___ S.W.3d ___, No. PD-0419-14, 2015 WL 3988955, at *3 (Tex. Crim. App. July 1, 2015); State ex rel. Lykos, 330 S.W.3d at 908.

The Penal Code provisions at issue here provide:

(a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to:

. . .

(4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public services;

(5) place the public or a substantial group of the public in fear of serious bodily injury; . . . .

Tex. Penal Code § 22.07(a)(4), (5).

Appellant contends that the above statutory subsections of the terroristic threat statute are unconstitutionally overbroad on their face because they criminalize "a vast amount of constitutionally protected speech" in violation of the First Amendment to the United States Constitution. He also asserts that they are unconstitutionally vague because they fail to provide adequate notice of the prohibited conduct.

A statute is impermissibly overbroad if it sweeps within its coverage "a substantial amount of" speech or other conduct protected by the First Amendment as compared to any activity it proscribes. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982); Bynum v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989); Clark v. State,665 S.W.2d 476, 482 (Tex. Crim. App. 1984); Garcia, 212 S.W.3d at 887. Because of the wide-reaching effects of striking down a statute on its face, at the request of one whose own conduct may be punished despite the First Amendment, the United States Supreme Court has recognized that "the overbreadth doctrine is 'strong medicine' and [courts should employ] it with hesitation, and then 'only as a last resort.'" Goyzueta v. State, 266 S.W.3d 126, 131 (Tex. App.—Fort Worth 2008, no pet.) (quoting New York v. Ferber, 458 U.S. 747, 769 (1982)); see Garcia, 212 S.W.3d at 887-88. Thus, we will not strike down a statute for overbreadth unless there is "a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court." Garcia, 212 S.W.3d at 888 (quoting Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 800-01 (1984)).

The First Amendment guarantees freedom of speech, affording protection to symbolic or expressive conduct as well as to actual speech. See U.S. Const. amend. I; Virginia v. Black, 538 U.S. 343, 358 (2003). Free speech protections of the First Amendment are implicated when the government seeks to regulate protected speech or expressive conduct. See Scott v. State, 322 S.W.3d 662, 668-69 (Tex. Crim. App. 2010), overruled in part on other grounds by Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014); Ex parte Thompson, 414 S.W.3d 872, 876 (Tex. App.—San Antonio 2013), aff'd, 442 S.W.3d 325 (Tex. Crim. App. 2014). 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. Black, 538 U.S. at 358; Walker v. State, 327 S.W.3d 790, 796 (Tex. App.—Fort Worth 2010, no pet.); Coggin v. State, 123 S.W.3d 82, 87 (Tex. App.—Austin 2003, pet. ref'd). The First Amendmentpermits "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 clearly outweighed by the social interest in order and morality.'" Black, 538 U.S. at 358-59; see Walker, 327 S.W.3d at 796; see, e.g., Black, 538 U.S. at 358-59 (listing types of words such as "fighting words" as generally outside First Amendment" and noting that First Amendment "permits a State to ban a 'true threat'"); R. A. V. v. City of St. Paul, 505 U.S. 377, 388 (1992) (concluding that threats of violence are outside the First Amendment).

In analyzing a facial challenge to the overbreadth and vagueness of a statute, courts must first determine whether the statute reaches "a substantial amount of constitutionally protected conduct." Village of Hoffman Estates, 455 U.S. at 494; Garcia, 212 S.W.3d at 887. In analyzing the text of the terroristic threat statute and making this determination here, we note the narrow applicability of the statute. By its terms, the statute punishes only those individuals who threaten to commit a crime involving violence to persons or property. See Tex. Penal Code § 22.07(a). This type of threat is not entitled to First Amendment protections. See Black, 538 U.S. at 359 (explaining that "'[t]rue threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence"); Watts v. United States, 394 U.S. 705, 707 (1969) (recognizing distinction between threats and constitutionally protected speech: "What is a threat must be distinguished from what is constitutionally protected speech."); Walker, 327 S.W.3d at 796 ("The First Amendment permits a State to ban a 'true threat.'"); Webb v. State, 991 S.W.2d 408, 415 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd) (concluding that retaliation statute does not infringe into area of constitutionally protected freedoms becauseit regulates only threatening speech: "A threat is not protected speech."); Jacobs v. State, 903 S.W.2d 848, 851 (Tex....