Ex parte Jarreau

• Decision Date: 23 December 2020
• Docket Number: No. 04-19-00704-CR,04-19-00704-CR
• Parties: EX PARTE James Burke JARREAU
• Court: Texas Court of Appeals

623 S.W.3d 468

EX PARTE James Burke JARREAU

No. 04-19-00704-CR

Court of Appeals of Texas, San Antonio.

Delivered and Filed: December 23, 2020

APPELLANT ATTORNEY: Mark Stevens, Attorney at Law, 310 S. St. Mary's St., Ste. 1505, San Antonio, TX 78205-3192, Alan Brown, Law Offices Of Brown & Norton, 222 Main Plaza East, San Antonio, TX 78205.

APPELLEE ATTORNEY: John Hoover, Assistant District Attorney, 200 Earl Garrett, Suite 202, Kerrville, TX 78028, Lucy Wilke, 402 Clearwater Paseo Ste. 400, Kerrville, TX 78028.

Sitting: Luz Elena D. Chapa, Justice, Irene Rios, Justice, Liza A. Rodriguez, Justice

Opinion by: Irene Rios, Justice

James Burke Jarreau was indicted for the offense of delivery of a dangerous drug. See TEX. HEALTH & SAFETY CODE §§ 483.042(a), 483.001(2). Jarreau filed a pretrial application for a writ of habeas corpus, arguing that the relevant penal statutes, sections 483.042(a) and 483.001(2) of the Texas Health and Safety Code, are unconstitutionally vague on their face. The trial court denied Jarreau's application. In two issues, Jarreau contends the trial court erred by denying his pretrial habeas corpus application. We affirm the trial court's order.

BACKGROUND

The indictment in this case alleged that Jarreau "on or before the 20th day of April, A.D. 2013 ... did then and there intentionally or knowingly deliver or offer to deliver to MacLean Jeffers a dangerous drug, specifically 25B-NBOMe." See TEX. HEALTH & SAFETY CODE §§ 483.042(a) (criminalizing the delivery or the offer to deliver a dangerous drug), 483.001(2) (defining "dangerous drug"). In his pretrial application for a writ of habeas corpus, Jarreau argued that sections 483.042(a) and 483.001(2) are unconstitutionally vague on their face because "dangerous drug" is defined as "a device or a drug that is unsafe for self-medication." See id. § 483.001(2). The trial court held a hearing on Jarreau's application, where Jarreau argued that the statutes in question are unconstitutionally vague on their face because they fail to provide sufficient notice of the prohibited conduct and adequate guidelines for law enforcement. At the end of the hearing, the trial court denied habeas corpus relief.¹ Jarreau appealed.

PRETRIAL HABEAS CORPUS STANDARDS

"Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy." Ex parte Perry , 483 S.W.3d 884, 895 (Tex. Crim. App. 2016). This remedy is limited to situations in which the protection of the applicant's substantive rights or the conservation of judicial resources would be better served by interlocutory review. Id. ; Ex parte Weise , 55 S.W.3d 617, 620 (Tex. Crim. App. 2001). Pretrial habeas relief is available "when the applicant alleges that the statute under which he or she is prosecuted is unconstitutional on its face; consequently, there is no valid statute and the charging instrument is void." Weise , 55 S.W.3d at 620. In this situation, "the applicant is challenging the trial court's power to proceed."² Id.

The applicant has the burden to establish his entitlement to habeas corpus relief by a preponderance of the evidence.

Kniatt v. State , 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). We generally review the trial court's ruling on a pretrial application for a writ of habeas corpus for an abuse of discretion. See id. However, when, as here, the resolution of the ultimate issue turns on the application of purely legal standards, we review the trial court's ruling de novo. Ex parte Martin , 6 S.W.3d 524, 526 (Tex. Crim. App. 1999).

FACIAL VAGUENESS CHALLENGE

The prohibition against vagueness in criminal statutes is fundamental to due process under the federal constitution. Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 1212, 200 L.Ed.2d 549 (2018). "The void-for-vagueness doctrine ... guarantees that ordinary people have ‘fair notice’ of the conduct a statute proscribes." Id. Additionally, "the doctrine guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges." Id. Each ground—a lack of fair notice and a lack of standards for law enforcement—provides an independent basis for a facial vagueness challenge. The party raising a vagueness challenge has the burden to establish that the challenged statute is unconstitutional on its face. State v. Rosseau , 396 S.W.3d 550, 557 (Tex. Crim. App. 2013).

A facial vagueness challenge has been called "the most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid." Santikos v. State , 836 S.W.2d 631, 633 (Tex. Crim. App. 1999) ; see also Rosseau , 396 S.W.3d at 557 ("The court of appeals properly observed that, to prevail on a facial challenge, a party must establish that the statute always operates unconstitutionally in all possible circumstances."). Historically, when an applicant claimed a criminal statute was vague on its face, he had to demonstrate that it could never be constitutionally applied to any defendant charged with the offense in question, regardless of the facts and circumstances of the case. State ex rel. Lykos v. Fine , 330 S.W.3d 904, 908 (Tex. Crim. App. 2011). That is, an applicant had to prove no factual circumstances existed under which the statute could be constitutional. Id. at 908-09. However, recent decisions by the United States Supreme Court and the Texas Court of Criminal Appeals indicate that when a penal statute is challenged for vagueness it is unnecessary to establish that the statute operates unconstitutionally in all possible circumstances. See Johnson v. United States , 576 U.S. 591, 602-03, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) ; State v. Doyal , 589 S.W.3d 136, 144 (Tex. Crim. App. 2019). In Johnson , the United States Supreme Court stated: "[A]lthough statements in some of our opinions could be read to suggest otherwise, our holdings squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision's grasp." 576 U.S. at 602, 135 S.Ct. 2551 (emphasis in original); Doyal , 589 S.W.3d 144-45 (holding a facial vagueness challenge to a penal statute implicating First Amendment freedoms did not require a showing that there were no possible instances of conduct falling within the statute's prohibition, and recognizing that Johnson did not appear to be limited to cases implicating the First Amendment). Thus, we conclude that under the guidance provided by Johnson and Doyal , Jarreau was not required to establish that sections 483.042(a) and 483.001(2) always operate unconstitutionally.

FAIR NOTICE OF THE PROHIBITED CONDUCT

In his first issue, Jarreau argues the trial court erred in denying his habeas corpus application because sections 483.042(a) and 483.001(2) fail to provide an ordinary person reasonable notice of what conduct is prohibited.

Jarreau was indicted for delivery of a dangerous drug under section 483.042(a), which provides: "A person commits an offense if the person delivers or offers to deliver a dangerous drug." TEX. HEALTH & SAFETY CODE § 483.042(a). Section 483.042(a) has exceptions. Id. § 483.042(a)(1),(2). It is not an offense for a pharmacist or a health care practitioner in the course of practice to deliver a dangerous drug in a properly labeled container. Id. ; see State v. Jarreau , 512 S.W.3d 352, 354 (Tex. Crim. App. 2017) ("Delivery by pharmacists or health care practitioners under customary medical practices is not an offense.").

The Legislature has given the term "dangerous drug" a particular meaning. Section 483.001(2) defines "dangerous drug" as:

a device or a drug that is unsafe for self-medication and that is not included in Schedules I through V or Penalty Groups 1 through 4 of Chapter 481 (Texas Controlled Substances Act). The term includes a device or a drug that bears or is required to bear the legend:

(A) "Caution: federal law prohibits dispensing without prescription" or "Rx only" or another legend that complies with federal law; or

(B) "Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian."

TEX. HEALTH & SAFETY CODE § 483.001(2) (emphasis added).

Jarreau acknowledges that the words "deliver"³ and "drug"⁴ are "defined by statute" and are "clear enough." Jarreau does not complain about the word "self-medication." Jarreau's vagueness argument focuses solely on the word "unsafe," which he asserts is not specific enough to provide ordinary people notice of the conduct prohibited in section 483.042(a).⁵ The dissent fully adopts Jarreau's argument. But Jarreau's argument is flawed because it fails to construe "unsafe" in context and demands a level of specificity that the law simply does not require.

When considering the constitutionality of a statute, we begin with the presumption that the statute is valid. Lykos , 330 S.W.3d at 909 n.14 ; see TEX. GOV'T CODE § 311.021. We must evaluate the statute not as it operates in practice but as it is written. Lykos , 330 S.W.3d at 908-09. To decide if a statute is vague, we interpret it in accordance with the plain meaning of its language. Wagner v. State , 539 S.W.3d 298, 306 (Tex. Crim. App. 2018). "We presume that every word has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible." Id.

"Words and phrases shall be read in context and construed according to the rules of grammar and common usage." TEX. GOV'T CODE § 311.011(a). "Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." Id. § 311.011(b).

To ascertain the plain meaning of the phrase "unsafe for self-medication," we consult the dictionary. The dictionary defines "unsafe" as "not safe," "exposed or exposing to danger," and "unreliable." WEBSTER'S THIRD NEW INT'L DICTIONARY...