Olvera v. State

• Decision Date: 30 January 1991
• Docket Number: Nos. 666-87,667-87,s. 666-87
• Citation: 806 S.W.2d 546
• Parties: Indalecio M. OLVERA, Jerry Wayne Schmidt, James Roy Hunt, James Robert Sevier, Jr., Appellants, v. The STATE of Texas, Appellee. 668-87, 669-87.
• Court: Texas Court of Criminal Appeals

Page 546

806 S.W.2d 546

Indalecio M. OLVERA, Jerry Wayne Schmidt, James Roy Hunt James Robert Sevier, Jr., Appellants, v. The STATE of Texas, Appellee.

Nos. 666-87, 667-87. 668-87, 669-87.

Court of Criminal Appeals of Texas En Banc.

Jan. 30, 1991.

Rehearing Overruled April 3, 1991.

Carl Dudensing, Catherine Greene Burnett, on appeal only, Houston, for appellants.

John B. Holmes, Jr., Dist. Atty., and Winston E. Cochran, Jr. and Lorraine Parker, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANTS' PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Following pleas of not guilty and based upon stipulated evidence, appellants were convicted in a joint non-jury trial of the misdemeanor offense of mass picketing. Tex.Rev.Civ.Stat.Ann. art. 5154d, § 1(1) (Vernon 1971). The trial court assessed punishment in each case at three days in jail and a one hundred dollar fine. A divided panel of the First Court of Appeals affirmed appellants' convictions. Olvera v. State, 725 S.W.2d 400 (Tex.App.--Houston [1st Dist.] 1987).

Appellants each assert two identical grounds for review: that § 1(1) of art. 5154d is facially unconstitutional on overbreadth grounds, and that § 1(1) is unconstitutional as applied. We agree with appellants' first ground and for the reasons stated herein we reverse the decision of the Court of Appeals. ¹

The information charged appellants with the offense of mass picketing in concert with others. The information alleged in pertinent part that the appellants:

intentionally and knowingly engage[d] in mass picketing, to wit: ... acting in concert with other persons, ... did then and there approach to within fifty feet of an entrance to the premises being picketed, namely, Auto Convoy Company.

The stipulations of evidence tracked the language of the informations.

Appellants contend that art. 5154d, § 1(1) is facially overbroad and vague because "it employs an arbitrary number-distance formula and gives no reference to the surrounding circumstances."

Article 5154d, § 1(1-2), with emphasis supplied, provides:

Section 1. It shall be unlawful for any person, singly or in concert with others, to engage in picketing or any form of picketing activity that shall constitute mass picketing as herein defined.

"Mass Picketing," as that term is used herein, shall mean any form of picketing in which:

1. There are more than two (2) pickets at any time within either fifty (50) feet of any entrance to the premises being picketed, or within fifty (50) feet of any other picket or pickets.

2. Pickets constitute or form any character of obstacle to the free ingress to and egress from any entrance to any premises being picketed or to any other premises, either by obstructing said free ingress or egress by their persons or by the placing of vehicles or other physical obstructions.

The term "picket," as used in this Act, shall include any person stationed by or acting for and in behalf of any organization for the purpose of inducing, or attempting to induce, anyone not to enter the premises in question or to observe the premises so as to ascertain who enters or patronizes the same, or who by any means follows employees or patrons of the place being picketed either to or from said place so as either to observe them or attempt to persuade them to cease entering or patronizing the premises being picketed.

The term "picketing," as used in this Act, shall include the stationing or posting of one's person or of others for and in behalf of any organization to induce anyone not to enter the premises in question, or to observe the premises so as to ascertain who enters or patronizes the same, or to follow employees or patrons of the place being picketed either to or from said place so as either to observe them or attempt to persuade them to cease entering or patronizing the premises being picketed.

The Court of Appeals recognized the State's "significant and substantial interests" in the prevention of violence and obstruction of traffic to and from a picketed premises, Olvera, 725 S.W.2d at 404, and concluded that the statute "does not substantially impair a significant amount of constitutionally protected conduct." Id., 725 S.W.2d at 405. A review of the Supreme Court's picketing cases assists in addressing the Court of Appeals' holding.

I.

While picketing plainly involves expressive conduct within the protection of the First Amendment, Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940), it is not speech in its pristine form; it is speech mixed with conduct of a different nature. Cox v. Louisiana, 379 U.S. 559, 563, 85 S.Ct. 476, 480, 13 L.Ed.2d 487 (1965); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 152, 89 S.Ct. 935, 939, 22 L.Ed.2d 162 (1969).

In analyzing the constitutional validity of anti-picketing statutes, the Supreme Court traditionally subjects restrictions on picketing to "careful scrutiny." Boos v. Barry, 485 U.S. 312, 317, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988); United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). For challenges under the First Amendment, the appropriate level of scrutiny hinges upon whether a statute distinguishes between prohibited and permitted speech on the basis of content. ² Frisby v. Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420 (1988), citing Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983). Where a statute is content-neutral, the State may enforce regulations of the time, place and manner of expression that are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. Perry, 460 U.S. at 45, 103 S.Ct. at 955. ³

The Supreme Court has consistently rejected statutes which are overbroad or vague in attempting to effectuate a legitimate state interest. For example, in the seminal case of Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940), the Supreme Court rejected a Tuscaloosa County, Alabama code prohibiting picketing businesses "for the purpose of hindering, delaying, or interfering with" the businesses. Thornhill was convicted for picketing related to a labor dispute. The Court rejected the ordinance on its face, however, noting that the "sweeping proscription of freedom of discussion" embodied within the statute prohibits speech which does not threaten life or property or the right of privacy. Id., 310 U.S. at 105, 60 S.Ct. at 745.

During the same Term, the Supreme Court held unconstitutional an ordinance declaring it unlawful for any person to carry or display any sign or banner or badge in the vicinity of any place of business for the purpose of inducing or attempting to induce any person to refrain from purchasing merchandise or performing services or labor. Carlson v. California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104 (1940). The Court concluded that while the State has the power to preserve the peace and to protect the privacy, lives and property of its residents, the "sweeping and inexact" terms of the ordinance abridge "liberty of discussion under circumstances presenting no clear and present danger of substantive evils within the allowable area of state control." Id., 310 U.S. at 112-113, 60 S.Ct. at 748-749.

In Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), the Court struck down an ordinance prohibiting three or more persons to assemble on any of the sidewalks and there conducting themselves in a manner "annoying" to persons passing by. The Court noted the vagueness problem with the statute by declaring,

The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of anti-social conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited.

Coates, 402 U.S. at 614, 91 S.Ct. at 1688.

The Court then shifted its focus, noting that the First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right of assembly simply because its exercise may be "annoying" to some people. Id., 402 U.S. at 615, 91 S.Ct. at 1688. In accord, Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (declaring unconstitutional Houston ordinance prohibiting speech that "in any manner" interrupted a police officer in performance of duties).

For anti-picketing statutes to survive constitutional scrutiny, the Supreme Court has consistently held that the statutes must be narrowly tailored to prevent reaching a substantial amount of constitutionally protected conduct. In Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), the Court upheld a statute which prohibited picketing near a courthouse with the intent to obstruct justice. The Court's analysis focused upon the State's legitimate interest in protecting the judicial system from pressures which picketing near a courthouse might create, and the narrowly drawn requirement of an intent to obstruct justice effectuated that interest. Id., 379 U.S. at 564, 85 S.Ct. at 481.

Likewise, in Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968), the Court rejected a First Amendment challenge to a statute prohibiting picketing or mass demonstrations which obstruct or unreasonably interfere with free ingress to or egress from public premises, including state property, county or municipal courthouse, city hall and jails. The Court, citing Cox, held that the statute survived an overbreadth challenge because it did not prohibit picketing unless it obstructs or unreasonably interferes with ingress to and egress from the enumerated public places. Cameron, 390 U.S. at 617, 88...