MARTINEZ v. The State of Tex.

• Decision Date: 06 October 2010
• Docket Number: No. PD-0622-09 through PD-0626-09.,PD-0622-09 through PD-0626-09.
• Citation: 323 S.W.3d 493
• Parties: Mario Rico MARTINEZ, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

323 S.W.3d 493

Mario Rico MARTINEZ, Appellant, v. The STATE of Texas.

Nos. PD-0622-09 through PD-0626-09.

Court of Criminal Appeals of Texas.

Oct. 6, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Brennon Brady, Asst. Public Defender and James Rasmussen, Chief Public Defender, Wichita Falls, for Appellant.

Barry L. Macha, Crim. Dist. Atty., John W. Brasher, Asst. Crim. Dist. Atty., James Suter, Asst. Crim. Dist. Atty., Wichita Falls, Jeffrey L. Van Horn, State's Atty., Austin, for State.

OPINION

KEASLER, J., delivered the opinion of the Court in which KELLER, P.J., PRICE, WOMACK, JOHNSON, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

We hold that the Fort Worth Court of Appeals did not err in holding that Section 125.065(a)(2), Texas Civil Practice and Remedies Code, which permits a judge to impose reasonable requirements when enjoining criminal street gang activity, a violation of which is punishable under Penal Code Section 71.021, does not violate the separation of powers doctrine. We also conclude that the court of appeals correctly determined that the provision of the injunction prohibiting Mario Rico Martinez from making gang hand signs and wearing gang clothing did not violate the First Amendment and was not unconstitutionally vague.

Background

We begin by focusing on two statutes that are aimed at controlling the ever-growing communal problem of criminal gang-related violence across this state. ¹ Section 125.065 of the Texas Civil Practice and Remedies Code allows a judge to enter an order restricting criminal gang-related activities that represent a public nuisance:

(a) If the court finds that a combination or criminal street gang constitutes a public nuisance, the court may enter an order:

(1) enjoining a defendant in the suit from engaging in the gang activities of the combination or gang; and

(2) imposing other reasonable requirements to prevent the combination or gang from engaging in future gang activities.(b) If the court finds that a place is habitually used in a manner that constitutes a public nuisance, the court may include in its order reasonable requirements to prevent the use of the place for gang activity. ²

Section 125.061(3) of the Texas Civil Practice and Remedies Code defines gang activity as several criminal offenses. ³ Under Texas Penal Code Section 71.021, it is a Class A misdemeanor offense to violate an order enjoining gang-related activities constituting a nuisance: “A person commits an offense if the person knowingly violates a temporary or permanent order issued under Section 125.065(a) or (b), Civil Practice and Remedies Code.” ⁴

In September 2006, the trial judge in the Eighty-Ninth District Court of Wichita County entered a temporary order enjoiningspecific members of the Varrio Carnales (VC) street-gang, including Martinez, from engaging in certain activities. The temporary injunction established a “VC safety zone” by delineating particular boundaries within Wichita Falls. Among other things, the order enjoined Martinez from:

2. Associating, standing, sitting, walking, driving, bicycling, gathering or appearing anywhere in public view with any other Defendant herein, with other known members of any other street gang, or any other individual who the Defendant knows is a member of the VC, with other known members of any other street gang, or any other individual who has been charged with a criminal offense.

...

16. Using or making words, phrases, physical gestures, or symbols, commonly known as gang hand signs or engaging in other forms of communication which the Defendant knows, describes, refers, or identifies members of the combination, or wearing clothes that particularly identify membership within the combination.

...

29. At any location in Wichita County, at any time entering onto the property of another Defendant who is a party to this lawsuit or any other individual who the Defendant knows is a member of the VC.

The trial judge also scheduled a hearing to decide whether the temporary injunction should be made permanent.

In April 2007, the trial judge issued a permanent order enjoining Martinez and other VC gang members from engaging in various activities. Though the activities prohibited by the order were nearly identical to those in the temporary order, the conditions under which the order was entered differed. According to the order,

It was announced to the Court that the parties have reached a settlement of their dispute and desire to terminate the litigation in this cause pursuant to the terms set out in this Order. The Court is of the opinion that this Agreed Order is well taken and should in all things be granted and the same is hereby GRANTED.

...

The parties further agree this Order shall not be used as evidence in a criminal proceeding except those criminal proceedings relating to violations of this Order, and any other applicable criminal contempt or civil contempt proceeding brought pursuant to Chapter 125 of the TEXAS Civil Practice and Remedies Code.IT IS FURTHER ORDERED that if Mario Martinez, as of April 6, 2010, has not been arrested for any criminal offense defined as “criminal gang activity” by chapter 125 of the TEXAS Civil Practice & Remedies Code, he will be removed from this injunction.IT IS FURTHER AGREED by the parties hereto that the above enjoined activities constitute reasonable restrictions as contemplated and permitted by the TEXAS Civil Practice & Remedies Code Section 125.065.

The order was signed by Martinez's attorney, and it notified Martinez that he had the right to prosecute an appeal. ⁵ Martinez did not appeal the order.

In cause number 40229-F, ⁶ Martinez was charged with violating provisions two and twenty-nine of the temporary injunction by entering the property of another VC gang member. In cause numbers 39396-F ⁷ and 40552-F, ⁸ Martinez was also charged with violating the temporary injunction by making hand gang signs or engaging in other forms of communication that Martinez knows describes, refers, or identifies members of the combination or wearing clothes that identify membership with the combination within the VC safety zone. In cause number 39397-F, ⁹ Martinez was charged with violating the temporary injunction by associating, driving, or appearing in public view in the VC zone with another named defendant to the injunction. Finally, in cause number 40116-F, ¹⁰ Martinez was charged with violating a provision of the permanent injunction.

County Court at Law Proceedings

Before trial, Martinez moved to dismiss the charges. Among other things, Martinez claimed that “reasonable requirements” language in Section 125.065(a)(2), Texas Civil Practice and Remedies Code, violates the separation of powers doctrine of the Texas Constitution because it allows judges to make criminal laws that may be sanctioned under Penal Code Section 71.021. Martinez further alleged that provision sixteen of the temporary injunction is unconstitutionally vague and overbroad. Clarification of Martinez's overbreadth claim, at this point, is required. While Martinez used the word overbroad to describe part of his challenge to provision sixteen, a review of the record at trial and on appeal shows that Martinez was not mounting a classic overbreadth claim as it is understood in its legal and technical nomenclature. Martinez appears to have confused First Amendment legal theories throughout the duration of this case. Properly labeled, Martinez's First Amendment challenge presented a challenge to his right to free speech. This is the claim raised and preserved for appellate review, even though it has been repeatedly mislabeled at the trial and appellate court levels.

After hearing the parties' arguments on these issues, the trial judge denied Martinez's request to dismiss. Martinez pled guilty in each case, and the trial judge certified Martinez's right to appeal the motions to dismiss.

Court of Appeals

Before the Fort Worth Court of Appeals, Martinez argued, among other things, that Section 125.065(a)(2) violates the separation of powers doctrine and that provision sixteen of the temporary injunction, which prohibited him from using gang hand signs and wearing gang clothing, was unconstitutionally vague and overbroad. ¹¹

The court rejected Martinez's separation-of-powers claim, relying on its previous published opinion addressing the issue in Goyzueta v. State. ¹² In Goyzueta, thecourt analogized the statutes here to specific statutes in the Civil Commitment of Sexually Violent Predators Act, which the Beaumont Court of Appeals in Beasley v. Molett determined did not violate the separation of powers doctrine. ¹³ Under the Civil Commitment of Sexually Violent Predators Act, a judge shall, before subjecting a person to outpatient civil commitment, impose requirements necessary, according to the judge's determination, to ensure the person's compliance with treatment and supervision to protect the community. ¹⁴ It is a third degree felony offense if a person adjudicated and civilly committed as a sexually violent predator violates a judge-imposed commitment requirement. ¹⁵ Beasley claimed that the trial judge's individual authority to impose requirements that the judge deems necessary affords the judge the authority to create a third-degree felony in violation of the separation of powers doctrine. ¹⁶ The Beaumont Court disagreed, concluding that the Legislature determined that a violation of a judge's necessary requirements are third-degree felonies. ¹⁷

Applying the Beasley court's reasoning, the Forth Worth Court in Goyzueta held that “the separation of powers doctrine is not violated merely because the legislature authorized trial courts to impose reasonable requirements not specifically listed in the statute to prevent known gang members from engaging in criminal activity.” ¹⁸ Therefore, the court held that there is no violation of the separation of powers doctrine. ¹⁹

Turning to the constitutionality of provision sixteen of...