Van Slyke v. State, 45490

• Decision Date: 24 January 1973
• Docket Number: No. 45490,45490
• Parties: Glen VAN SLYKE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 590

489 S.W.2d 590

Glen VAN SLYKE, Appellant, v. The STATE of Texas, Appellee.

No. 45490.

Court of Criminal Appeals of Texas.

Jan. 24, 1973.

Stuart M. Nelkin, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and I. D. McMasters, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This appeal is from a conviction for insult to the flag of the United States under Article 152, Vernon's Ann.P.C.; punishment was assessed by the court at eight years, probated. (See also companion cases, Case v. State, Tex.Cr.App., 489 S.W.2d 593 and Holland v. State, Tex.Cr.App., 489 S.W.2d 594.)

The evidence shows that at approximately 1:00 A.M. on May 1, 1970, a number of people were in the Commons ¹ at Baker College on the Rice University campus in Houston. At this time some people were studying and others were milling around in the dining room area. The appellant and several others, including Bill Holland and Bill Case, were sitting in chairs on a platform within the Commons that had been placed there for the production of a play.

Sidney James Drouilhet, a Rice University student, stopped by to talk to the appellant and his friends and they started making remarks about desecrating the flag. Drouilhet saw Bill Case take the flag of the United States and drape it around his shoulders. Those on the platform started making remarks on how to desecrate the flag and Bill Holland took the flag from Case and threw it down on the floor and said he was going to pour grape drink all over it. He then stated, 'No I wont. I'll stomp on it instead.' Holland then stomped on the flag.

Then the appellant took the flag and began blowing his nose on it. He did this by taking the flag in one hand, raising it to his nose, wrapped a part of it around his nose and blew as one would blow his nose on a handkerchief. At this point, Drouilhet told appellant and the others that what they were doing was illegal and if they continued he would have to turn them in. They started laughing and making derogatory remarks about Drouilhet, after which the appellant blew his nose on the flag again. Thereafter, Drouilhet testified as follows:

'A. Mr. Van Slyke said, 'I am going to beat off on the Flag', and then he stood up and removed his shirt and sat back down in the chair which he had been sitting in and he had the Flag in one of his hands and at this time he began unzipping his pants and after he almost completed that he took the Flag in one of his hands and began raising it up toward the top of his pants--

Q. Toward his belt line?

A. Yes sir. While he continued unzipping his pants and then he maintained control--he kept hold of the Flag with one of his hands and then he took the other hand and he put it underneath the Flag and from the movements and the shapes and bulges that one could decern (sic) there was no mistaking the fact that he was actually rubbing his genitals on the Flag. . . .

A. Yes, sir, before he had done any of that, before he had even started unzipping his pants, he had taken the Flag in his hand and he brought it over to his crotch and he grabbed the Flag in his hand he squeezed it into his crotch and began making faces like he thought it was a pleasurable experience.

Q. And when he said, 'I am going to beat off on this flag', did this convey to you what his intentions were?

A. Yes sir. To beat off is slang for to masturbate.

Q. And then that statement was followed by his actions you have already described?

A. Yes sir.

Q. All right, after that what happened next?

A. Well, while he was doing that I kept telling them that what they were doing was illegal and I started to trying and take the Flag away from him, but I sort of tugged on it but I didn't pull any further because I didn't want to provoke any kind of physical fight, and all the time they kept making derogatory remarks, shouting out things like, 'Urinate, urinate, urinate on it', over and over.

Q. This was coming from the crowd as a whole, is that correct?

A. Not everybody in the Commons, just the people that were there with Mr. Van Slyke, that were there on the stage.

Q. Once again, who were the people with Mr. Van Slyke on the stage?

A. Okay. Mr. Van Slyke, Mr. Case, Mr. Holland, . . .'

Appellant, testifying in his own behalf, stated that at the time in question he was sitting on the stage and drinking wine. He denied that he blew his nose on the flag and claimed that he feigned the action. He denied that he rubbed his genitals under the flag. He also contended that he did not know that the material was a flag of the United States, that he thought at the time it was not, but that it was possible that it was.

Appellant's first four grounds of error attack the constitutionality of Article 152, V.A.P.C., which provides:

'Any person who shall within this State, publicly Or privately, mutilate, deface, defile, defy, tramp upon, or cast contempt upon, Either by Word or act any flag, standard, color, or ensign of the United States, or that of any of...