McMorris v. State

• Decision Date: 18 December 1974
• Docket Number: No. 49115,49115
• Citation: 516 S.W.2d 927
• Court: Texas Court of Criminal Appeals
• Parties: Donnie Ray McMORRIS, Appellant, v. The STATE of Texas, Appellee.

Page 927

516 S.W.2d 927

Donnie Ray McMORRIS, Appellant, v. The STATE of Texas, Appellee.

No. 49115.

Court of Criminal Appeals of Texas.

Dec. 18, 1974.

Ben H. Tompkins, Fort Worth, for appellant.

Tim Curry, Dist. Atty., T. J. Haire and William E. Burdock, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The conviction is for resisting arrest by exhibiting a firearm; the jury assessed punishment at imprisonment for four years. The appellant argues that Article 341(b), V.A.P.C., under which this prosecution was had is unconstitutional, that the evidence is insufficient to support the conviction, and that the prosecutor's jury argument was so harmful and prejudicial that it requires reversal of the judgment.

Article 341(b), V.A.P.C., which became effective September 1, 1969, and was repealed effective January 1, 1974, in pertinent part, reads as follows:

'A person who uses or exhibits a firearm in resisting any lawful arrest, apprehension, or investigation by a peace officer is guilty of a felony . . .' ¹

The appellant argues that this statute provides no standards for determining whether an act is a criminal act and that a person of ordinary intelligence cannot determine from the wording of the statute what is prohibited. Further, he says that the terms '. . . exhibit, resisting, lawful arrest, apprehension, and investigation are subject to overly broad interpretation . . .' The appellant's attack upon the statute appears to be both that it is vague and that it is overbroad. We do not find this statute to be constitutionally void for either reason.

'That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair paly and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.' Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1925).

See also Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939).

'It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an Ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application . . .' Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute, Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed.2d 989 (1953), and if it encourages arbitrary and erratic arrests and convictions. Papachristou v. City of Jacksonville, supra; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed.2d 1093 (1940); Herndon v. Lowrey, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed.2d 1066 (1937).

A clear and precise statute may nevertheless be overbroad if in its reach it prohibits constitutionally protected conduct. Grayned v. City of Rockford, supra.

In Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), a Kentucky statute was examined by the Supreme Court of the United States and held not to violate constitutional provisions. The wording of the statute is certainly no more precise than the one which the appellant asks us to review in this case. That statute in pertinent part reads as follows:

'(1) A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

'(f) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse . . .' Ky.Rev.Stat. § 437.016(1) (f) (Cum.Supp.1968).

Mr. Justice White in the majority opinion said:

'. . . The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited . . .'

and agreed with the opinion of the Kentucky court that citizens who desire to obey the statute there under attack would have no difficulty understanding it.

The meaning of the words used in Article 341(b), V.A.P.C. are well known and may be understood by a person of ordinary intelligence. They give fair notice of the acts prohibited. The statute does not threaten constitutionally protected conduct of this appellant or of others. It is not overbroad. See Colten v. Kentucky, supra; cf. Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965).

We, like the Supreme Court in Colten v. Kentucky, supra, referring to the attack upon the Kentucky statute, find the attack upon this statute to be a 'strained, nearfrivolous contention.' We hold Article 341(b), V.A.P.C. is not vague, is not overboard, and does not violate constitutional provisions.

We will now give consideration to the appellant's contention that the conviction is not supported by sufficient evidence. The indictment alleges that the appellant on or about the second day of February, 1973, unlawfully exhibited a shotgun in resisting a lawful arrest, apprehension, and investigation by a peace officer. A brief summary of the evidence follows. R. L. McGuire and D. M....