State v. Zuniga
| Decision Date | 13 December 2022 |
| Docket Number | 14-21-00757-CR, NO. 14-21-00758-CR |
| Citation | 656 S.W.3d 925 |
| Parties | The STATE of Texas, Appellant v. Luis Fernando ZUNIGA, Appellee |
| Court | Texas Court of Appeals |
Kim K. Ogg, Jessica Alane Caird, Heather Hudson, Houston, for Appellant.
Matt Hennessy, Houston, for Appellee.
Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
In these appeals from two separate judgments granting habeas corpus relief, the question presented is whether the applicant carried his burden of showing that a statute was unconstitutionally vague on its face. The trial court concluded that the applicant satisfied his burden. We disagree with that conclusion and reverse both of the trial court's judgments.
These appeals concern Section 545.157 of the Texas Transportation Code, which is otherwise known as the Move Over Act. See Act effective Sept. 1, 2003, 78th Leg., R.S., ch. 327, § 1, 2003 Tex. Gen. Laws 1401, 1401. The critical portions of the Act provide as follows:
The typical penalty for a violation of the Act is just a fine, but when a violation results in bodily injury, the violator can face criminal liability for a Class B misdemeanor, which carries a maximum punishment of six months’ confinement and a fine of $2,000. See Tex. Transp. Code § 545.157(c) ; Tex. Penal Code § 12.22.
Zuniga was criminally charged with violating the Act. The charging instrument alleged that a third party suffered bodily injury, without any particular details as to the nature of the injury or the circumstances leading up to its occurrence.
Zuniga filed a pretrial application for writ of habeas corpus, arguing that the Act was impermissibly vague on its face because it does not define the term "approaching." Without such a definition, or any other statutory guidance as to when the duty arises to move over or reduce speed, Zuniga claimed that he had no notice of what was required of him to avoid criminal responsibility. He also argued that the Act encouraged arbitrary and discriminatory enforcement through its use of indefinite language.
Zuniga filed his application in the same cause number as the charging instrument, which was not the correct procedure. He later filed the application in a new cause number, separate and apart from the charging instrument, which was the correct procedure. See Ex parte Fairchild-Porche , 638 S.W.3d 770, 778 (Tex. App.—Houston [14th Dist.] 2021, no pet.) ("Pretrial habeas-corpus proceedings are separate criminal actions that should be filed under a cause number different from the cause number of the underlying criminal prosecution."). The State opposed habeas corpus relief, but the trial court granted Zuniga's application and entered judgments in both cause numbers dismissing the charging instrument.
The State now appeals from those separate judgments.
Zuniga applied for habeas corpus relief on the asserted ground that the Act was unconstitutional on its face. This ground is also known as a facial challenge, and it raised a pure question of law. See Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). Because a trial court is in no better position than this court to resolve a pure question of law, the trial court's ruling is not entitled to deference, and we consider the facial challenge de novo. Id.
A vagueness argument implicates two constitutional concerns. See United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2325, 204 L.Ed.2d 757 (2019). The first concern is the due process of law, which requires that statutes give people of ordinary intelligence fair notice of what the law demands of them. Id. Vague laws contravene this basic tenet by failing to provide such notice. Id. The second concern is the separation of powers. Id. In our representative democracy, only the legislature can "make an act a crime," and vague laws threaten this rule insofar as they delegate responsibility for defining crimes to unaccountable police, prosecutors, and judges. Id. To protect these constitutional concerns, the courts have developed a doctrine that a vague law is void and may not be enforced. Id.
Whenever a party asserts a facial challenge to a statute on the grounds that the statute is impermissibly vague, we presume that the statute is constitutional, which means that the burden rests on the challenger to establish its unconstitutionality. See Ex parte Smith , 441 S.W.2d 544, 547 (Tex. Crim. App. 1969).
A survey of the case law indicates that there might be some uncertainty as to the precise scope of the challenger's burden.
The traditional rule has been that the challenger has the burden of showing that the statute is impermissibly vague in all of its applications. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 494–95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). This is a heavy burden. See United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (). If the record reveals that the challenger engaged in conduct that was clearly proscribed, then the challenger cannot establish that the statute is invalid even though it might be vague as applied to the conduct of others. See Village of Hoffman Estates , 455 U.S. at 495, 102 S.Ct. 1186.
But this traditional rule has not always been followed. The Supreme Court has held that if the statute implicates the First Amendment or any other constitutionally protected conduct, then the challenger is not required to demonstrate that the statute is impermissibly vague in all of its applications. See United States v. Williams , 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) ().
The Supreme Court also departed from the traditional rule in a recent trio of cases, none of which involved the First Amendment or any other constitutionally protected conduct. The first case in this trio was Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which concerned a challenge to the Armed Career Criminal Act, a federal sentencing statute that enhanced the punishment of a defendant if he had previously been convicted three or more times of a violent felony. Id. at 593, 135 S.Ct. 2551. The statute defined the term "violent felony" with a series of exemplar crimes, followed next by an open-ended residual clause that referred to any offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. at 594, 135 S.Ct. 2551. Deciding whether that residual clause encompassed a crime required a lower court to use a framework known as the categorical approach. Id. at 596, 135 S.Ct. 2551. Under that categorical approach, a lower court had to imagine what sort of conduct that the crime involved "in the ordinary case"—as opposed to considering the particular facts of the underlying conviction at issue—and then the court had to assess whether that abstraction presented a serious potential risk of physical injury to another. Id. Because this categorical approach was attended by uncertain and unreliable factors, the Supreme Court held that the residual clause denied fair notice to defendants and invited arbitrary enforcement by judges. Id. at 597, 135 S.Ct. 2551. The Supreme Court accordingly invalidated the residual clause on vagueness grounds, despite having acknowledged that the clause could have some "straightforward" applications. Id. at 602, 135 S.Ct. 2551.
In Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018) and United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), the Supreme Court invalidated two more residual clauses in other federal statutes. Both of those opinions followed the reasoning previously applied in Johnson .
The Supreme Court did not expressly disavow the traditional rule in any of the trio of cases concerning residual clauses. However, in Johnson , the Supreme Court made the following statement that could be construed as casting doubt on the traditional rule: "In all events, although statements in some of our opinions could be read to suggest otherwise, our holdings squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision's grasp." See Johnson , 576 U.S. at 602, 135 S.Ct. 2551 (emphasis in original).
The Court of Criminal Appeals highlighted this statement in State v. Doyal , 589 S.W.3d 136 (Tex. Crim. App. 2019), where it suggested that the traditional rule from earlier opinions may have been disavowed. Id. at 144 n.33 (). However, the Court of Criminal...
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