Jimmerson v. State
| Decision Date | 25 January 1978 |
| Docket Number | No. 56014,56014 |
| Citation | 561 S.W.2d 5 |
| Parties | I. P. JIMMERSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Sam Saleh (court appointed), Lamesa, for appellant.
Joe Smith, Dist. Atty., Seminole, for the State.
Before the court en banc.
OPINION ON APPELLANT'S MOTION FOR REHEARING
Appellant, with leave of this court, has filed a motion for rehearing in which it is argued that this court committed error in affirming in a per curiam opinion the order revoking probation. The trial court had revoked appellant's probation because it found that appellant had violated probation by possessing a usable quantity of marihuana and by communicating a false bomb report at Lamesa High School. This court affirmed the order revoking probation finding that
With regard to the allegation in the revocation motion as to the possession of marihuana, the record reveals that appellant, after being stopped for speeding on January 10, 1977, was arrested for disorderly conduct in violation of V.T.C.A., Penal Code, § 42.01(a)(4), and was taken to the city jail. Officers searched him during the booking process and two marihuana cigarettes were seized from one of his pockets.
Appellant, citing Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), contends that V.T.C.A., Penal Code, § 42.01(a)(4), is unconstitutional because it does not specifically define the proscribed conduct, and that because there was therefore no probable cause for his arrest then the subsequent search was not justified and the fruit of the search, the marihuana cigarettes, should not have been admitted into evidence. Appellant further argues that without the marihuana cigarettes being admitted into evidence there was insufficient evidence to support the revocation of probation.
V.T.C.A., Penal Code, § 42.01(a)(4), provides:
In Gooding v. Wilson, supra, the Supreme Court held that a Georgia statute providing that "(a)ny person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor" was on its face constitutionally vague and overbroad under the First and Fourteenth Amendments to the United States Constitution. The Supreme Court found that the Georgia courts had not narrowly construed such statute to apply only to "fighting" words "which by their very utterance . . . tend to incite an immediate breach of the peace" as required by Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).
Does V.T.C.A., Penal Code, § 42.01(a)(4), apply only to "fighting words" which by their very utterance tend to incite an immediate breach of the peace? While we are confident that the Legislature intended that anything short of "fighting words" would not be a violation of that section because the section was enacted and became effective (January 1, 1974) well after the decisions in Gooding v. Wilson and Chaplinsky v. New Hampshire, both supra, had clarified the law on the subject of disorderly conduct statutes, we do not reach that question because we find the evidence in this case is not sufficient to support an arrest for disorderly conduct. The only evidence on this issue came from the arresting officer who testified that appellant "used some profane language" and "was highly irritated and kept using, again, profane language"; that the only reason that appellant was placed under arrest was because of the profane language; and that another police officer "did drive up and hear him (appellant) . . . cussing." It is thus apparent that whether the words spoken were "fighting" words, "abusive or threatening" words, or words privileged by the First Amendment to the United States Constitution cannot be determined from this record. In the absence of any evidence as to the words used by the accused to trigger the arrest for disorderly conduct, we find no probable cause for such arrest. The marihuana cigarettes obtained in the subsequent search were therefore not admissible and the evidence was insufficient to prove the allegation in the revocation motion that appellant possessed a usable quantity of marihuana.
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