Ex parte Flores, 14–14–00663–CR

• Decision Date: 10 November 2015
• Docket Number: NO. 14–14–00663–CR,14–14–00663–CR
• Citation: 483 S.W.3d 632
• Parties: Ex parte Marcos M. Flores, Appellant
• Court: Texas Court of Appeals

483 S.W.3d 632

Ex parte Marcos M. Flores, Appellant

NO. 14–14–00663–CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed November 10, 2015

Rehearing Overruled January 7, 2016

Carmen Mae Roe, Kent A. Schaffer, Houston, TX, for Appellant.

Alan Curry, Houston, TX, for State of Texas.

Panel consists of Justices Jamison, Busby, and Brown.

OPINION

J. Brett Busby, Justice

Appellant Marcos Flores was charged with the offense of unlawfully carrying a handgun in a vehicle as a member of a criminal street gang. See Tex. Pen. Code Ann. §§ 46.02(a–1)(2)(C), 71.01(d) (West Supp.2014). Appellant filed pre-trial applications for writ of habeas corpus challenging the constitutionality of the statute. After a hearing, the trial court issued an order denying the applications. Appellant challenges the trial court's denial on three grounds.

In his first issue, appellant argues the statute violates the First Amendment to the United States Constitution because it is a content-based regulation of expression that fails to satisfy strict scrutiny and because it restricts freedom of association. We conclude the statute is not subject to strict scrutiny because it is justified without reference to the content of any expression and does not infringe any right of intimate or expressive association. In his second issue, appellant argues the statute is unconstitutional because the terms "criminal street gang" and "member" are overbroad. In his third issue, appellant argues the statute is unconstitutionally vague and provides law enforcement with unfettered discretion to arrest individuals. We conclude that appellant's arguments rely on an incorrect construction of the statute and that the statute is neither overbroad nor vague when correctly construed. We therefore affirm the trial court's denial of the writ applications.

BACKGROUND

Although the charging instrument is not in our record, the parties agree that appellant was charged by information with the misdemeanor offense of unlawfully carrying a weapon as a member of a criminal street gang.¹ Appellant filed a pretrial application for writ of habeas corpus and an amended application challenging the constitutionality of the statute. After a hearing, the trial court stated that "a reasonable construction may be ascertained from the statute that renders it constitutional" and denied appellant's requested relief. This appeal followed.

ANALYSIS

I. Appellant may bring his constitutional challenges via pretrial habeas.

Pretrial habeas corpus proceedings are separate criminal actions, and the applicant has the right to an immediate appeal before trial begins. Greenwell v. Court of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 650 (Tex.Crim.App.2005).

Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy, and we must be careful to ensure that a pretrial writ is not misused to secure pretrial appellate review of matters that should not be put before appellate courts at the pretrial stage. Ex parte Ellis, 309 S.W.3d 71, 79 (Tex.Crim.App.2010). A claim is cognizable in a pretrial writ of habeas corpus if, resolved in the defendant's favor, it would deprive the trial court of the power to proceed and result in the appellant's immediate release. Ex parte Smith, 185 S.W.3d 887, 892 (Tex.Crim.App.2006) (citing Ex Parte Weise, 55 S.W.3d 617, 619 (Tex.Crim.App.2001).

A claim that a statute is unconstitutional on its face may be raised by pretrial writ of habeas corpus because the invalidity of the statute would render the charging instrument void. Ex parte Weise, 55 S.W.3d at 620. Although pretrial habeas can be used to bring a facial challenge to the constitutionality of the statute, it may not be used to advance an "as applied" challenge. Ex parte Ellis, 309 S.W.3d at 79.

The State argues that we may not address appellant's three issues because they are in fact "as applied" constitutional challenges and thus not cognizable in a pretrial application for writ of habeas corpus. We disagree. In his three issues, appellant argues that the statute is facially invalid because it is a content-based restriction on speech and is both overbroad and vague. If we resolved these arguments in appellant's favor, the trial court would be deprived of the power to proceed and appellant would be released. See Ex parte Lo, 424 S.W.3d 10, 16–27 (Tex.Crim.App.2013) (concluding statute at issue was overbroad, content-based restriction on speech and remanding case for trial court to dismiss indictment); Ex parte Ellis, 309 S.W.3d at 86 (noting that "[w]hen a vagueness challenge involves First Amendment considerations, a criminal law may be held facially invalid even if the law has some valid application" and addressing appellant's vagueness challenges); see also Long v. State, 931 S.W.2d 285, 297 (Tex.Crim.App.1996) (holding statutory provision unconstitutionally vague on its face and remanding case to trial court for order dismissing prosecution). Accordingly, appellant properly raised his challenges in pretrial applications for writ of habeas corpus, and we consider whether the trial court erred in denying the applications.

II. Section 46.02(a-l)(2)(C) is not subject to strict scrutiny as a speech regulation or restriction on freedom of association.

In his first issue, appellant argues that the statute is facially invalid under the First Amendment to the United State Constitution because it (1) attaches criminal sanctions to the otherwise-lawful behavior of displaying a sign or symbol, and (2) restricts freedom of association.

A. Standard of review and applicable law

In general, we review a trial court's ruling on an application for writ of habeas corpus using an abuse-of-discretion standard, and we view any evidence in the light most favorable to that ruling and defer to implied factual findings supported by the record. Le v. State, 300 S.W.3d 324, 327 (Tex.App.–Houston [14th Dist.] 2009, no pet.). Whether a statute is facially constitutional, however, is a question of law that we review de novo. Ex parte Lo, 424 S.W.3d at 14.

We usually begin analyzing a constitutional challenge with the presumption that the statute is valid and that the Legislature has not acted unreasonably or arbitrarily. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002).

The burden to establish the statute's unconstitutionality rests upon the party mounting the challenge. Id. The First Amendment's prohibition of laws "abridging the freedom of speech," however, limits the government's power to regulate speech based on its substantive content. U.S. Const. amend. I ; Reed v. Town of Gilbert, Ariz., ––– U.S. ––––, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015). When the government does so, the usual presumption of constitutionality afforded legislative enactments is reversed. United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 817, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). Contentbased regulations—meaning those that distinguish favored from disfavored speech based on the idea or message expressed—are presumptively invalid, and the government bears the burden to rebut that presumption. Ex parte Lo, 424 S.W.3d at 15.

Whether the provision is content-neutral or content-based dictates the level of scrutiny that we will apply. Martinez v. State, 323 S.W.3d 493, 504–05 (Tex.Crim.App.2010). We apply strict scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). Such a regulation may be upheld only if it is necessary to serve a compelling state interest and employs the least speech-restrictive means to achieve its goal. Ex parte Lo, 424 S.W.3d at 15. Other types of regulations receive intermediate scrutiny, including content-neutral regulations of the time, place, and manner of speech, as well as regulations of speech that can be justified without reference to its content. Eg., Turner Broad. Sys., 512 U.S. at 642, 114 S.Ct. 2445 ; Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). These regulations are permissible if they promote a significant governmental interest and do not burden substantially more speech than necessary to further that interest. McCullen v. Coakley, ––– U.S. ––––, 134 S.Ct. 2518, 2534–35, 189 L.Ed.2d 502 (2014) ; Ex parte Thompson, 442 S.W.3d 325, 344 (Tex.Crim.App.2014).

Although the First Amendment literally protects only speech, courts have held that conduct may "possess sufficient communicative elements to bring the First Amendment into play." Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). To determine whether conduct falls within the scope of the First Amendment, courts consider whether an intent to convey a particularized message is present, and whether the likelihood is great that the message will be understood by those who receive it. Id.

B. The statute's regulation of speech is justified without reference to the content of a sign or symbol.

Section 46.02(a–1)(2)(C) of the Texas Penal Code provides that a person commits an offense if the person [i] intentionally, knowingly, or recklessly carries on or about his or her person a handgun [ii] in a motor vehicle or watercraft that is owned by the person or under the person's control [iii] at any time in which the person is a member of a criminal street gang as defined by Texas Penal Code section 71.01. Tex. Pen. Code Ann. § 46.02(a–1)(2)(C) (West Supp.2014). Under section 71.01(d), criminal street gang is defined as "three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities." Tex. Pen. Code Ann. § 71.01(d) (West 2011).

Appellant contends section 46.02(a–1)(2)(C) implicates the First Amendment because it prohibits an individual from carrying a handgun in a vehicle at any time the individual has an...