Garcia v. State

• Decision Date: 07 February 2018
• Docket Number: No. 05–16–01256–CR,05–16–01256–CR
• Court: Texas Court of Appeals
• Parties: Justin Lee GARCIA, Appellant v. The STATE of Texas, Appellee

583 S.W.3d 170

Justin Lee GARCIA, Appellant

v.The STATE of Texas, Appellee

No. 05–16–01256–CR

Court of Appeals of Texas, Dallas.

Opinion Filed February 7, 2018

Christian T. Souza, Dallas County Public Defender's Office, Katherine A. Drew, Assistant Public Defender, Dallas TX, for Justin Lee Garcia.

Donald Guidry, The Guidry Law Firm, Faith Johnson, Susan Hawk, Dallas County District Attorney, Dallas TX, for the State of Texas.

Before Justices Lang, Evans, and Schenck

Opinion by Justice Schenck Justin Lee Garcia appeals his conviction for the offense of terroristic threat. In seven issues, appellant challenges the constitutionality of the statute under which he was convicted and its application to his Facebook statements concerning police officials. We affirm his conviction.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged appellant with the offense of terroristic threat by intentionally threatening to commit aggravated assault and murder (an offense involving violence) against any person or property with intent to cause a reaction of any type by the City of Dallas Police Department (an official or volunteer agency organized to deal with emergencies). See TEX. PENAL CODE ANN. § 22.07(a)(1) (West Supp. 2017).¹ In an information, appellant was alleged to have committed the offense on July 6, 2016, by making the following Facebook post:

All this police shooting people is bringing the end of the world. I can honestly say when I decide to snap I will personally go around and see how many police officials I can kill cause that's wat [sic] their [sic] doin [sic] kill is [sic] for no reason getting away with it for the last time it's time America stands up there's a lot more of us than police officials we need stand up and put a stop to all that. [T]hey get to take our lives take us from our family friends and most of the time they won't ever see a prison cause of a small piece of cheap metal...Dallas police be on notice fr fr.²

The Dallas Police Department opened an investigation that same day. Five Dallas police officers were shot and killed the next day. Appellant was interviewed and arrested the following day but not for those shootings.

Appellant filed both a motion to dismiss and quash the information, and an application for writ of habeas corpus in which he challenged the constitutionality of section 22.07(a)(1).³ In his motion to dismiss or quash the information, appellant asserted his statements were not true threats, and that section 22.07(a)(1) is facially invalid because it is vague and overbroad, and is invalid as applied to appellant because it restrains his political speech. After a hearing on appellant's application for writ of habeas corpus, the trial court orally denied appellant's writ application and motion to dismiss and quash and found the terroristic threat statute was not vague or overbroad and appellant's statement, communicating a desire to kill Dallas police officers, constituted a true threat rather than a protected political expression. A jury was unable to reach a verdict in this case, and a mistrial was declared. Appellant then entered a negotiated plea of no contest in exchange for 150 days' confinement in the Dallas County jail. This appeal followed.

DISCUSSION

I. True Threat

In his first issue, appellant urges the First Amendment of the United States Constitution prohibits his prosecution for the statements he posted on Facebook because they were not "true threats." Because appellant's first issue is addressed exclusively to the federal Constitution, we will confine our analysis to state and federal authority applying it.

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). The protections afforded by the First Amendment, however, are not absolute, and courts have long recognized that the government may nevertheless regulate certain categories of expression. Virginia v. Black , 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) ; Walker v. State , 327 S.W.3d 790, 796 (Tex. App.–Fort Worth 2010, no pet.). The First Amendment thus permits "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.’ " See, e.g., Black , 538 U.S. at 358–59, 123 S.Ct. 1536 ; R.A.V. v. City of St. Paul , 505 U.S. 377, 388, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) ; Walker , 327 S.W.3d at 796 (concluding that threats of violence are outside the First Amendment).

As relevant here, the First Amendment leaves the states free to ban speech amounting to a "true threat." Black , 538 U.S. at 359, 123 S.Ct. 1536. "True threats" encompass those statements by which the speaker communicates an intent to commit an act of unlawful violence to a particular individual or group of individuals, regardless of whether the speaker actually intends to carry out the threat. Id. at 359–60, 123 S.Ct. 1536. Thus, even if the threat of violence is a subjectively false statement of fact, it is not worthy of constitutional protection. See, e.g., Gertz v. Robert Welch, Inc. , 418 U.S. 323, 340, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (discussing defamation and the First Amendment); Schenck v. United States , 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919) (no First Amendment right to falsely yell "fire" in a crowded theater); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council , 425 U.S. 748, 771–73, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (restricting commercial speech protections to truthful speech promotes a lawful transaction).⁴ We are aware of the Alvarez decision, imposing a First Amendment bar to a statute criminalizing false speech amounting to falsely claiming to have received a military award of honor. United States v. Alvarez , 567 U.S. 709, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012). In that case, however, as the Supreme Court suggested, the statute advanced no governmental interest apart from the suppression of the message. Id. at 726, 132 S.Ct. 2537. Here, in contrast, the statute serves interests in promoting public safety and curbing the misdirection of resources.

Appellant relies on Elonis v. United States to urge that in order to be convicted for making a terroristic threat, he must have possessed a subjective intent to convey a true threat. ––– U.S. ––––, 135 S.Ct. 2001, 2008–12, 192 L.Ed.2d 1 (2015). In other words, according to appellant's reading, it must be shown he intended to signal his actual intention to murder police officers before his statement can be treated as a "true threat" for First Amendment purposes. Appellant's reliance on Elonis as to the required intent is misplaced. The Elonis decision involved a federal criminal statute that made "it a crime to transmit in interstate commerce ‘any communication containing any threat ... to injure the person of another.’ " Id. at 2004 (quoting 18 U.S.C. § 875(c) ). Because section 875(c) lacked any indication of the requisite culpable mental state for the prosecution, the court held that criminal liability could not be imposed merely because a reasonable person would have perceived a communication as a threat, as had been instructed by the trial court; rather, the defendant must have intended to issue the threat or known that the communication would be viewed as a threat. Id. at 2012. Elonis did not speak to the issue presented here—whether a state might prosecute conduct consisting of a threat of violence where reasonable jurors could find an intent to cause emergency personnel to react.

Unlike the statute at issue in Elonis, the statute at issue here contains a mental state requirement. See TEX. PENAL CODE ANN. § 22.07(a)(1) (West Supp. 2017). Section 22.07(a)(1) provides that an individual makes a terroristic threat when he threatens to commit any offense involving violence to any person or property with intent to cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies. Id. Thus, section 22.07(a)(1) contains a mens rea requirement that was not present in the federal statute at issue in Elonis . See e.g., United States v. Ziba , 653 Fed. Appx. 809, 810 (5th Cir. 2016) ; Villarreal v. State , 504 S.W.3d 494, 509 (Tex. App.–Corpus Christi 2016, pet. ref'd). Moreover, the intent requirement under section 22.07(a)(1) is directed to the speaker's appreciation for the probability of eliciting a reaction, not the speaker's subjective intention to carry through with the threat. A fact finder is entitled to consider the content of appellant's statement and discount his profession that he did not intend to provoke a response in deciding the intent element of the offense charged. See, e.g., United States v. Williamson , 81 F.Supp.3d 85, 92 (D.C. Cir. 2015) (defendant made threatening 911 call under circumstances allowing reasonable jurors to find requisite intent despite defendant's contrary professions).

Thus, contrary to appellant's urging, his subjective intent as espoused by him does not control the mens rea required to establish the charged offense. Rather, the relevant inquiry is whether, given appellant's plea of no contest, a jury could have concluded that by posting a comment about killing police officers appellant intended to provoke a reaction. Appellant notes that he did not "tag" the police department on his post, and urges, on that basis, that he could not have intended to provoke a reaction. Appellant cites no authority requiring a "tag" in order for a social media post to evidence an intent to cause a reaction, and we find none. The record shows appellant warned that "Dallas police be on notice fr" and the Dallas Police Department, evidently aware of a potential for...