Sanchez v. State

Decision Date20 May 1998
Docket NumberNo. 04-96-00140-CR,04-96-00140-CR
Citation974 S.W.2d 307
PartiesArthur Garcia SANCHEZ, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Stephanie L. Stevens, Mark Stevens, San Antonio, for appellant.

Daniel Thornberry, Asst. Criminal Dist. Atty., San Antonio, for appellee.

Before HARDBERGER, C.J., and STONE and JOHN F. ONION, Jr., 1 JJ.

OPINION

JOHN F. ONION, Jr., Justice (Assigned).

This appeal is taken from a conviction for official oppression. See TEX. PENAL CODE ANN. § 39.03(a)(3), (c) (Vernon 1994). 2 Appellant, Arthur Garcia Sanchez, was indicted for subjecting another to sexual harassment, a Class A misdemeanor. 3 The jury found appellant guilty and assessed his punishment at confinement in the county jail for one year and a fine of $3,000. The jury, however, recommended community supervision. 4 The imposition of the sentence was suspended and appellant was placed on community supervision subject to certain conditions.

POINTS OF ERROR

Appellant advances seven points of error. In two points of error, appellant challenges the constitutionality of the statute under which he was convicted, contending that the statute is vague on its face and, as applied to him, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. These points are also inclusive of a First Amendment violation. We sustain these points of error. We do not find it necessary to enumerate the other points of error.

The indictment, as amended, alleged in pertinent part that:

on or about the 1st day of August, A.D., 1994, through on or about the 15th day of February, A.D., 1995, ARTURO SANCHEZ, while acting under color of his office as a public servant, to wit: an officer, employee and agent of government, namely: Chairman and Board Member of the Board of Trustees of VIA METROPOLITAN TRANSIT, did intentionally subject DIANE GONZALEZ to sexual harassment, namely: unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature, by stating to DIANE GONZALEZ (hereinafter referred to as "COMPLAINANT") to the effect: that if COMPLAINANT did not have a sexual affair with him he would fire her; that to get an office, a secretary and a raise COMPLAINANT must have a sexual affair with him; that he had a sexual affair with another VIA employee and he would have a sexual affair with COMPLAINANT also; that he would have a sexual affair with COMPLAINANT, that COMPLAINANT should have a sexual affair with him because people already thought they were having a sexual affair; that COMPLAINANT must put on lipstick; that he would like COMPLAINANT to wear low-cut dresses; that he would like COMPLAINANT to wear black pantyhose and silk blouses because she looked better in them; that upon seeing a bruise on COMPLAINANT'S leg, that he asked COMPLAINANT if she was bruised from rough sex with her husband, and that he liked rough sex; and by touching DIANE GONZALEZ with his hand on her face, submission to which was explicitly and implicitly made a term and condition of DIANE GONZALEZ's exercise and enjoyment of her rights, privileges, powers and immunities 5....

FACTS

The facts are not absolutely essential to our disposition of the instant case on constitutional grounds, but are briefly mentioned as background. 6

THE VAGUENESS ISSUE

Appellant urges his "on its face" and "as applied" vagueness attacks upon section 39.03 under which he was convicted, contending violations of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 7 Appellant has included in his argument a claim that the statute in question is also overbroad and impinges on the freedom of speech guaranteed by the First Amendment to the United States Constitution, which amendment is applicable to the states through the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925); Olvera v. State, 806 S.W.2d 546, 548 n. 2 (Tex.Crim.App.1991). In the area of First Amendment rights, stricter standards of permissible statutory vagueness apply to a statute. The overbreadth and vagueness doctrines are conceptually distinct, but in the First Amendment context they tend to overlap since statutes are often overly broad because their language is vague about what behavior is proscribed. See 16A C.J.S. Constitutional Law, § 459 at 483 (1984).

"Whenever an attack upon the constitutionality of a statute is presented for determination, we commence with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily in enacting the statute." Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978); Ex parte Anderson, 902 S.W.2d 695, 698 (Tex.App.--Austin 1995, pet. ref'd). The burden rests upon the individual challenging the statute to establish its unconstitutionality. Granviel, 561 S.W.2d at 511. The statute must be upheld if a reasonable construction can be ascertained which will render the statute constitutional and carry out the legislative intent. Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979).

A criminal statute must be sufficiently clear in at least three respects. First, a person of ordinary intelligence must be given a reasonable opportunity to know what is prohibited. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Long v. State, 931 S.W.2d 285, 287 (Tex.Crim.App.1996). "The rationale for this is obvious: crimes must be defined in advance so that individuals have fair warning of what is forbidden." Bynum v. State, 767 S.W.2d 769, 773 (Tex.Crim.App.1989). A lack of notice poses a "trap for the innocent ...," United States v. Cardiff, 344 U.S. 174, 176, 73 S.Ct. 189, 97 L.Ed. 200 (1952), and "violates the first essential of due process." Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Second, the criminal law must establish determinate guidelines for law enforcement. Long, 931 S.W.2d at 287. "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, 408 U.S. at 108-09, 92 S.Ct. 2294 (emphasis in original). "Where inherently vague statutory language permits selective law enforcement, there is a denial of due process." Smith v. Goguen, 415 U.S. 566, 575, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). Either the lack of notice or lack of guidelines for law enforcement is an independent ground for finding a statute void for vagueness. Adley v. State, 718 S.W.2d 682, 685 (Tex.Crim.App.1985).

Third, where First Amendment's freedoms are implicated, the law must be sufficiently definite not to abridge the right of free speech, but also to avoid chilling protected expression. Grayned, 408 U.S. at 109, 92 S.Ct. 2294. "When a statute is capable of reaching First Amendment freedoms, the doctrine of vagueness demands a greater degree of specificity than in other contents." Kramer v. Price, 712 F.2d 174, 177 (5th Cir.1983), rehearing en banc granted, 716 F.2d 284 (5th Cir.1983), grant of relief aff'd, 723 F.2d 1164 (5th Cir.1984). Greater specificity is required to preserve adequately the right of free expression because uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked. Long, 931 S.W.2d at 288 (quoting Grayned, 408 U.S. at 109, 92 S.Ct. 2294). First amendments are intertwined with the vagueness issue. Long, 931 S.W.2d at 288.

THE STATUTE

The official oppression statute criminalizes certain acts by a public servant acting under the color of his office or employment. TEX. PENAL CODE ANN. § 39.03 (Vernon 1994). The statute provides:

(a) A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or

(3) intentionally subjects another to sexual harassment.

(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.

(c) In this section, "sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.

(d) An offense under this section is a Class A misdemeanor.

(emphasis added).

Subsections (a)(3) and (c) were first added to the statute in 1989 8 and it is under these provisions that appellant was prosecuted and it is these provisions which appellant contends are unconstitutional, vague and overbroad.

Section 39.03 applies only to a "public servant," which is a far more expansive term than a person who is simply elected, appointed, or employed in a public office. See TEX. PENAL CODE ANN. § 1.07(a)(41) (Vernon 1994). 9 Such public servant is prohibited from subjecting "another" to sexual harassment. "Another" means "a person other than the actor." TEX. PENAL CODE ANN. § 1.07(a)(5) (Vernon 1994); Bryson v. State, 807 S.W.2d 742, 746 (Tex.Crim.App.1991). A "person" means "an individual, corporation, or association." TEX. PENAL CODE ANN. § 1.07(a)(38) (Vernon 1994). It is clear that section 39.03(a)(3)(c) includes both genders within the term "another." Repeated acts or a course of conduct is not required, one act would constitute a violation of the statute.

Section 39.03(a)(3) must be read in light of the statutory definition of sexual harassment...

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7 cases
  • Sanchez v. State
    • United States
    • Texas Supreme Court
    • October 12, 2005
    ...unconstitutionally overbroad in violation of the First Amendment to the United States Constitution. See Sanchez v. State, 974 S.W.2d 307, 319, 321 (Tex.App.-San Antonio 1998) (Sanchez I). The Court of Criminal Appeals on petition for discretionary review found the sexual harassment statutor......
  • Sanchez v. State
    • United States
    • Texas Court of Appeals
    • August 16, 2000
    ...and (2) unconstitutionally over broad in violation of the First Amendment to the federal constitution. See Sanchez v. State, 974 S.W.2d 307 (Tex. App.-San Antonio 1998) (Sanchez I). The Court of Criminal Appeals on discretionary review found the sexual harassment statutory provision constit......
  • Rivera v. State
    • United States
    • Texas Court of Appeals
    • July 7, 2011
    ...since statutes are often overly broad because their language is vague about what behavior is proscribed.” Sanchez v. State, 974 S.W.2d 307, 312 (Tex.App.-San Antonio 1998), rev'd on other grounds, 974 S.W.2d 307 (Tex.App.-San Antonio 1998). 11. We recognize that the vagueness challenge in F......
  • Sanchez v. State
    • United States
    • Texas Court of Criminal Appeals
    • June 30, 1999
    ...Process Clause of the Fourteenth Amendment and (2) unconstitutionally overbroad in violation of the First Amendment. Sanchez v. State, 974 S.W.2d 307 (Tex. App.--San Antonio 1998). As a result, the Court of Appeals ordered the dismissal of the prosecution.2 We will reverse the Court of I. T......
  • Request a trial to view additional results
1 books & journal articles
  • Criminalizing coerced submission in the workplace and in the academy.
    • United States
    • Columbia Journal of Gender and Law Vol. 19 No. 2, June 2010
    • June 22, 2010
    ...criminal charges that were brought under this provision see a series of court decisions regarding the Sanchez case, see Sanchez v. Texas 974 S.W.2d 307 (Tex. App. 1998), rev'd Sanchez v. Texas 995 S.W.2d 677 (Tex. Crim. App. 1999), Sanchez v. Texas, 32 S.W.3d 87 (Tex. App. 2000), vacated Sa......

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