Faust v. State
| Decision Date | 09 December 2015 |
| Docket Number | NO. PD–0893–14,NO. PD–0894–14,PD–0893–14,PD–0894–14 |
| Citation | 491 S.W.3d 733 |
| Parties | Joey Darrell Faust, Appellant v. The State of Texas Ramon Marroquin, Appellant v. The State of Texas |
| Court | Texas Court of Criminal Appeals |
James S. Sharpe, Fort Worth, TX, for Appellants.
Charles M. Mallin, Assistant District Attorney, Fort Worth, TX, Lisa C. McMinn, State's Attorney, Austin, for the State.
On October 6, 2012, appellants, Joey Darrell Faust and Ramon Marroquin, while protesting at a gay pride parade, each disobeyed a police officer's order to not cross a skirmish line, resulting in their arrest for the offense of Interference with Public Duties under Texas Penal Code Section 38.15(a)(1).1 After a consolidated bench trial, each appellant was convicted and sentenced to two days' confinement in the Tarrant County Jail and assessed a $286 fine. Appellants appealed their convictions, asserting that Section 38.15(a)(1) had been unconstitutionally applied to them in violation of their First Amendment rights.2 The Second Court of Appeals agreed with appellants and reversed their convictions. For the reasons discussed herein, we hold that Section 38.15(a)(1) was not unconstitutionally applied to appellants. Therefore, we reverse the decision of the Second Court of Appeals, and we order that the trial court judgments be reinstated.
Appellants, Faust and Marroquin, along with several other members of the Kingdom Baptist Church, were protesting at a gay pride parade in downtown Fort Worth. Members of the Kingdom Baptist Church had a history of being involved in physical altercations at previous gay pride parades. Having been informed of such history of violence, the Fort Worth Police Department assigned several teams of police officers from the Zero Tolerance Unit as tactical response to control the crowd, maintain peace, and handle any physical altercations that might occur. Sergeant Paul Genualdo headed one of the tactical response teams.
Sergeant Genualdo testified during the bench trial that he first came in contact with Faust before the parade started. He asked Faust and the Kingdom Baptist Church members to join with other protesters to “have them in one area so they could still do their demonstration but just co-locate them.” Sergeant Genualdo testified that the purpose of controlling the groups was “[t]o prevent a breach of the peace.” He said that they “were trying to make sure that there were no physical altercations that took place.” When he first asked Faust if his group would move, Faust “declined,” and Sergeant Genualdo said “okay.” Sergeant Genualdo then moved along with his team to another location along the parade route where they “maintain[ed their] position throughout the duration of the parade as it went by.” Sergeant Genualdo testified that, as the end of the parade was passing the officers, there were “some crowds of civilians” walking down Main Street behind the parade. At that time, Sergeant Rachel DeHoyos and Lieutenant Glen Verrett ordered Team One and Team Five to form a police skirmish line. The officers' intent was to block off the southbound direction on Main Street in order to temporarily prevent the Kingdom Baptist Church members from going further south. The police were trying to “maintain a space” between the church members and the “trail end” of people supporting the parade in order to avoid any confrontation that could escalate into violence between the two groups. Sergeant Genualdo emphasized that the skirmish line “was not intended to be permanent.” He stated that it was “a delay and [the church members] were going to be allowed to proceed southbound once we determined there was a safe time distance between the two.”
Appellant Faust encountered Sergeant Genualdo at the skirmish line. Sergeant Genualdo testified that he “held out his arms and told [Faust] he couldn't proceed any further for the time being.”3 Faust asked Sergeant Genualdo if he was being detained, and Sergeant Genualdo told Faust that he was not being detained, and that he was free to proceed in any direction other than southbound down Main Street “at that time.”4 Sergeant Genualdo then testified that Faust “began to physically berate [him], told [him] that [he] was working for a lesbian, told [him] that [he] needed to put earrings and a bow in [his] hair,” and referred to Sergeant Genualdo as “a fag.”5 Faust told Sergeant Genualdo that “he was going to cross the line and [Sergeant Genualdo] had better not try to stop him or he was going to sue [him].” Faust then crossed “two or three feet past the skirmish line into the street,” at which time Sergeant Genualdo placed Faust under arrest for Interference with Public Duties and charged him with violating Texas Penal Code Section 38.15(a)(1). Although neither appellant was charged with Disorderly Conduct, Officer Genualdo testified that he believed that language used by Faust violated the Disorderly Conduct statute and was indicative of the language that Faust had used throughout the day.6 Officer Genualdo testified that he was not concerned about Faust expressing his religious views. Rather, Officer Genualdo's testimony reflected his belief that Faust would likely direct the same type of language toward the parade supporters that he had used toward Officer Genualdo, which, in Officer Genualdo's mind, was language that was prohibited under the Disorderly Conduct statute because it would have likely incited violence.
On cross examination, Faust's counsel established that other people were allowed to cross the skirmish line, but Faust was not. Sergeant Genualdo explained that this was “due to the previous history the department has experienced with [Faust],” and that “the likelihood for violence was increased if [Faust] went and met with the trail end of the parade.” The officers wanted to “prevent that from occurring.”
Sergeant DeHoyos testified that there were altercations between the Kingdom Baptist Church protestors and the parade supporters and participants after last year's gay pride parade. In her police report, which was offered into evidence by appellants as Defense Exhibit 1, Sergeant DeHoyos described the history of violence involving the Kingdom Baptist Church members:
In her police report, Sergeant DeHoyos also described how appellants were interfering with the police officers' exercise of their duties during this year's gay pride parade:
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