Jenkins, Taurus

• Court: Texas Supreme Court
• Decided: June 21, 2016
• Docket: PD-0566-16
• Status: Published

Opinion

PD-0547-16 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/20/2016 4:31:47 PM Accepted 6/21/2016 4:22:04 PM ABEL ACOSTA NO. PD-0547-16 CLERK TO THE COURT OF CRIMINAL APPEALS __________________________________________________________________

EX PARTE § TEXAS COURT OF § § § § DEREK TY POE § CRIMINAL APPEALS

__________________________________________________________________ PETITIONER/APPELLANT DEREK TY POE’S PETITION FOR DISCRETIONARY REVIEW

On Petition For Discretionary Review from the Ninth Court of Appeals; Cause Number 09-15-00373-CR, affirming the denial of habeas corpus in Cause No. 301268-A from the County Court at Law No. 2 of Jefferson County, Texas

T. EDWIN WALKER State Bar No. 00786324 1020 Bay Area Blvd., Suite 216 Houston, Texas 77058 Tel: (281) 668-9957 Fax: (281) 282-9419 Email: tewalker@walkerbyington.com ATTORNEY FOR DEREK TY POE

ORAL ARGUMENT REQUESTED

June 21, 2016 TABLE OF CONTENTS

Table of Contents…………………………………………………………………....i Table of Authorities ………………………………………………………….……iii Statement Regarding Oral Argument ………………………………………………v Names of All Parties ………………………………………………………….……vi Statement of the Case………………………………………………………….……1 Procedural History………………………………………………………………….2 Issues Presented………………………………………………………………….…3 First Ground for Review: The Ninth Court of Appeals erred in failing to apply the presumption of invalidity to Texas Penal Code Sec. 42.01(a)(8), which is a content-based restriction, and instead applied the usual standard of presumptive validity. Second Ground for Review: The Ninth Court of Appeals erred when it held that Texas Penal Code Sec. 42.01(a)(8) was not unconstitutionally overbroad in violation of the First Amendment. This finding was based upon the application of the incorrect presumption of validity instead of the presumption of invalidity. Third Ground for Review: The Ninth Court of Appeals erred when it held that Texas Penal Code Sec. 42.01(a)(8) was not void for vagueness in violation of the First Amendment. This finding was based upon the application of the incorrect presumption of validity instead of the presumption of invalidity. Facts……………………………………………………………………………...…4 Argument and Authorities……………………………………………………….….5 First Ground for Review ………………………………………………….....8 Second Ground for Review ...........................................................................13 Third Ground for Review ……………………………………………….….17 Conclusion ………………………………………………………………………..21

i Prayer ………………………………………………………………………….….22 Certificate of Service ……………………………………………………………...23 Certificate of Compliance …………………………………………………...……23 Appendix A ………………………………………………………………….……24

ii TABLE OF AUTHORITES Cases Ashcroft v. ACLU, 542 U.S. 656 (2004)………………………………………..7, 15 Brandenburg v. Ohio, 395 U.S. 444 (1969)……………………………………..…6 Brown v. Entertainment Merchants Ass’n, 564 U.S. ___, 131 S.Ct. 2729 (2011)....7 Bynum v. State, 767 S.W.2d 769 (Tex. Crim. App. 1989)………………………..15 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)……………………………....6 Cohen v. California, 403 U.S. 15 (1971)……………………………………….…11 Ely v. State, 582 S.W.2d 416 (Tex. Crim. App. 1979)……………………………18 Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) …...………………….9, 12, 15 Ex Parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014)…………………………………………………………v, 6, 7, 8, 10, 12, 13, 16 Gooding v. Wilson, 405 U.S. 518, 521-22 (1972)………………………………….6 Grayned v. Rockford, 408 U.S. 104 (1972) ……………………..……………17, 18 Kramer v. Price, 712 F.2d 174 (5th Cir. 1983) …………………………..……18, 19 Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996) ...…………….18, 19, 20, 21 May v. State, 765 S.W.2d 438 (Tex. Crim. App. 1989)…………….………………19 Morehead v. State, 807 S.W.2d 577 (Tex. Crim. App. 1991)………..…………….6 New York v. Ferber, 458 U.S. 747 (1982)………………………………………….6 State v. Johnson, 475 S.W.3d 860 (Tex. Crim. App. 2015) ...………. v, 8, 10, 14, 15 State v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App. 2013) …………………………9 Terminiello v. Chicago, 337 U.S. 1 (1949)………………………………....………6 Texas v. Johnson, 491 U.S. 397 (1989)………………………………….……..…11 Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969)………..11 Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) ...………………..……12 United States v. Alvarez, ___ U.S. ___, 132 S.Ct. 2537 (2012)…………………....7

iii United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000)……..…7 United States v. Stevens, 559 U.S. 460 (2010)………………………………..……15 United States v. Williams, 553 U.S. 285 (2008)…………………………………6, 14 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 234 (1981)……………………………………………………………………………...15 Virginia v. Black, 538 U.S. 343 (2003)……………………………………………...5 Virginia v. Hicks, 539 U.S. 113 (2003) ……………………………………………15

Constitutions, Statutes, Codes House Bill 910, 84th Legislature…………………………………….......................11 Texas Penal Code Section 22.02…………………………………………..………16 Texas Penal Code Section 22.05(a)…………………………………………..……16 Texas Penal Code Section 22.05(b)…………………………………………..……16 Texas Penal Code Section 22.07…………………………………………….…….16 Texas Penal Code Section 42.01(a)(8)……………………………………..…passim Texas Penal Code Section 42.11……………………………………………..……10 Texas Penal Code Section 42.12…………………………………………….…….16 Texas Penal Code Section 46.02……………………………………………..……11 Texas Penal Code Section 46.03……………………………………………….14, 16 Texas Penal Code Section 46.035………………………………………...……14, 16 Texas Penal Code Section 46.15(b)(6)…………………………………………….11 Texas Rule of Appellate Procedure 66.3(b)…………………………………………3 Texas Rule of Appellate Procedure 66.3(c)…………………………………………4 U.S. Constitution Amendment I………………………………………………passim

iv STATEMENT REGARDING ORAL ARGUMENT Petitioner believes that oral argument before the Court would be greatly

beneficial due to the crucial First Amendment application and complexities involved

in this case. In light of the action of the 84th Texas Legislature’s legalization of the

display of visible handguns by individuals who are not law enforcement officers,

Texas Penal Code Section 42.01(a)(8) lurks as a legal catch-all for use (or abuse) by

any police, prosecutor, or “alarmed” citizen who disagrees with the practice of

“open-carry.” Texas Penal Code Section 42.01(a)(8) does not serve to protect the

people of Texas to any greater degree than other criminal statutes that are currently

in effect. The statute’s sole purpose is to criminalize protected expressive speech.

Further, the Ninth Court’s ruling in this matter was based upon its erroneous

conclusion that Texas Penal Code Sec. 42.01(a)(8) criminalizes conduct and not

speech. This holding contradicts this Court’s recent findings in Ex Parte Thompson

and State v. Johnson, protecting expressive conduct as speech.

v NAMES OF ALL PARTIES

Derek Ty Poe Petitioner/Appellant T. Edwin Walker Petitioner/Appellant’s Trial and Appellate State Bar No. 00786324 Counsel 1020 Bay Area Blvd., Suite 216 Houston, Texas 77058

State of Texas Appellee Wayln G. Thompson Appellee’s Appellate Counsel Jefferson County District Attorney’s Office 1085 Pearl Street, Suite 300 Beaumont, Texas 77701

Daniel A Hunt Appellee’s Trial Counsel Cornelius D. Williams Jefferson County District Attorney’s Office 1085 Pearl Street, Suite 300 Beaumont, Texas 77701

Hon. Kent Walson, sitting for Hon. Cory J.H. Crenshaw Judge Presiding Jefferson County Court at Law No. 2 1085 Pearl Street Beaumont, Texas 77701

vi NO. PD-0547-16 TO THE COURT OF CRIMINAL APPEALS __________________________________________________________________

EX PARTE § TEXAS COURT OF § § § § DEREK TY POE § CRIMINAL APPEALS

__________________________________________________________________ PETITIONER/APPELLANT DEREK TY POE’S PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS: Petitioner, Derek Ty Poe, by and through his attorney on appeal, T. Edwin

Walker, files this petition for discretionary review.

STATEMENT OF THE CASE

This case is a facial challenge to Texas Penal Code Sec. 42.01(a)(8) on the

grounds that it violates the First Amendment to the United States Constitution.

Specifically, the statute regulates the expressive conduct of displaying firearms or

other deadly weapons and is a content based statute in that it does not prohibit all

displays of firearms or other deadly weapons, but only those that are done “in a

manner calculated to alarm.” Because Texas Penal Code Sec. 42.01(a)(8) is a content

based restriction on expressive conduct, it is unconstitutionally overbroad in that it

1 prohibits a substantial amount of protected speech. Further, it is unconstitutionally

vague because it provides no guidance to actors, law enforcement, or the public as a

whole, as to what expressive conduct is considered criminal.

PROCEDURAL HISTORY

On December 31, 2013, Derek Ty Poe was charged in Cause Number 301268,

State of Texas v. Derek Ty Poe, with the crime of disorderly conduct by displaying

a deadly weapon, namely a firearm, in in a public place a manner calculated to alarm,

in violation of Texas Penal Code Section 42.01(a)(8). 1 Derek Ty Poe filed an

Application for Pretrial Writ of Habeas Corpus Seeking Relief Due To The

Unconstitutionality of Texas Penal Code Section 42.01(a)(8) in Jefferson County

Court at Law No. 2.2 After a hearing on May 20, 2015, the trial court denied his

application on August 21, 2015.3 Petitioner then appealed the trial court’s order to

the Texas Court of Appeals, Ninth District. The Ninth Court of Appeals issued its

judgment affirming the trial court’s order on April 20, 2016. No motion for rehearing

was filed. The opinion of the Ninth Court of Appeals is attached to this petition as

Appendix A.

1 CR at 8. 2 CR at 19. 3 CR at 69.

2 ISSUES PRESTENTED

This Honorable Court is respectfully requested to review the following issues:

First Ground for Review: The Ninth Court of Appeals erred in failing to apply the presumption of invalidity to Texas Penal Code Sec. 42.01(a)(8), which is a content-based restriction, and instead applied the usual standard of presumptive validity. Second Ground for Review: The Ninth Court of Appeals erred when it held that Texas Penal Code Sec. 42.01(a)(8) was not unconstitutionally overbroad in violation of the First Amendment. This finding was based upon the application of the incorrect presumption of validity instead of the presumption of invalidity. Third Ground for Review: The Ninth Court of Appeals erred when it held that Texas Penal Code Sec. 42.01(a)(8) was not void for vagueness in violation of the First Amendment. This finding was based upon the application of the incorrect presumption of validity instead of the presumption of invalidity. This Honorable Court should review this matter because the Ninth Court of

Appeals has decided an important question of state or federal law that has not been,

but should be settled by the Court of Criminal Appeals.4 The constitutionality of

Section 42.01(a)(8) has never been challenged as a violation of the First

Amendment. Further, this matter should be reviewed because the Ninth Court of

Appeals has decided an important question of state or federal law in a way that

conflicts with the applicable decisions of the Court of Criminal Appeals or the

4 Tex. App. Proc. Rule 66.3(b)

3 Supreme Court of the United States. 5 Specifically, the Ninth Court’s decision

conflicts with established First Amendment precedent that protects expressive

conduct as speech. The stakes for firearms owners and in particular holders of a

Texas License To Carry a handgun (LTC) have never been higher with regard to

potential criminal prosecutions for doing nothing more than lawfully displaying their

handguns when or where another person may subjectively find them “alarming.”

The Ninth Court of Appeals has failed to recognize the potential for abuse of Section

42.01(a)(8) due to its facial unconstitutionality. Merely displaying a firearm or other

deadly weapon is an act of expressive conduct. Section 42.01(a)(8) is a content-

based restriction on expressive activity. Therefore, the proper constitutional standard

of review in this matter is strict scrutiny. Intermediate scrutiny does not apply

because Section 42.01(a)(8) is not a time, place, and manner restriction, nor does it

further a substantial government interest without significantly impairing First

Amendment freedoms.

FACTS

Derek Ty Poe owned a firearms accessories store in Parkdale Mall, Beaumont,

Texas. On December 28, 2013, he was detained by Beaumont Police at the mall, for

conduct that amounted to nothing more than walking to his own store while carrying

his dinner and his rifle (used in his store for demonstrative purposes). The police

5 Tex. App. Proc. Rule 66.3(c)

4 confiscated his rifle and thereafter filed a probable cause affidavit that resulted in

the filing of an Information.6 The hearing on Petitioner’s habeas corpus application

produced substantial facts for the record. These facts include live testimony and

affidavits from individuals involved in the movement to legalize the “open carry” of

handguns, who state that the display of firearms is done for free speech purposes in

advocating for political change. The State produced no evidence to challenge,

contradict, or discredit this evidence.

ARGUMENT AND AUTHORITIES Texas Penal Code Sec. 42.01(a)(8) criminalizes one who “displays a firearm

or other deadly weapon in a public place in a manner calculated to alarm.” The First

Amendment seeks to protect speech and expressive conduct. However, as

constitutional jurisprudence teaches, the First Amendment right is not absolute, and

there are certain categories of speech or expressive conduct that are entitled to more

protection than others.7 Laws that restrict speech on the basis of its content are

subject to strict scrutiny by the courts. Laws that restrict speech on the basis of its

time, place and manner, or promote a substantial government interest that is

unrelated to the suppression of and only incidentally to free speech are subject to

intermediate scrutiny for the purposes of determining if it substantially burdens

6 CR at 6. 7 Virginia v. Black, 538 U.S. 343, 358 (2003).

5 protected speech.8 Lastly, there is speech that is not protected the First Amendment

and the legislature is allowed to regulate it. However, even when attempting to

criminalize unprotected speech, “the statute must be carefully drawn or be

authoritatively construed to punish only unprotected speech” 9 Examples of

unprotected speech include child pornography10, fighting words11, offers to engage

in illegal conduct, 12 and incitement to commit immediate lawless action.13 The

United States Supreme Court stated long ago:

[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. There is no room under our Constitution for a more restrictive view.14

The expressive conduct of displaying a firearm or other deadly weapon, even while

alarming to others is protected and does not fall into any of these categories of

unprotected speech.

8 Ex Parte Thompson, 442 S.W.3d 325, 344 (Tex. Crim. App. 2014). 9 Morehead v. State, 807 S.W.2d 577, 580 (Tex. Crim. App. 1991) citing Gooding v. Wilson, 405 U.S. 518, 521-22 (1972). 10 New York v. Ferber, 458 U.S. 747 (1982). 11 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). 12 United States v. Williams, 553 U.S. 285 (2008). 13 Brandenburg v. Ohio, 395 U.S. 444 (1969). 14 Terminiello v. Chicago, 337 U.S. 1, 4 (1949).

6 The Supreme Court’s modern approach to First Amendment challenges to

penal statutes restricting speech is a three-step inquiry:

1. Does the statute restrict speech, including expressive conduct, based on its content? If the answer is “yes,” then the statute is presumed to be unconstitutional, the State has the burden of proving otherwise, and the court must then ask...

2. Does the restricted speech fall entirely into a category of unprotected speech? If the statute forbids only unprotected speech, the First Amendment is satisfied and not violated. However, if the statute captures protected speech along with unprotected speech, then...

3. Does the statute satisfy strict scrutiny? That is, is it necessary and narrowly written to satisfy a compelling state interest?15

This strict scrutiny approach, with a presumption of invalidity and the burden

associated with it on the State, is the appropriate standard of review.16 “Content-

based regulations are presumptively invalid, and ‘[i]t is rare that a regulation

restricting speech because of its content will ever be permissible.’” 17 “[W]hen a

statute is content based, it may be upheld only if it is the least restrictive means of

achieving the compelling government interest in question.”18 Expressive conduct,

also known as “symbolic speech,” is protected like any other kind of speech. Texas

Penal Code Sec. 42.01(a)(8) is a content-based regulation of protected expressive

15 See generally United States v. Alvarez, ___ U.S. ___, 132 S.Ct. 2537 (2012). 16 See Ashcroft v. ACLU, 542 U.S. 656, 660 (2004). 17 Ex Parte Thompson, 442 S.W.3d at 348 (quoting Brown v. Entertainment Merchants Ass’n, 564 U.S. _____, 131 S.Ct. 2729, 2738 (2011) (quoting United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 818 (2000)). 18 Id.

7 speech that does not pass the First Amendment’s strict scrutiny test in that it is

unconstitutionally vague and overbroad.

First Ground for Review: The Ninth Court of Appeals erred in failing to apply the presumption of invalidity to Section 42.01(a)(8), which is a content-based restriction, and instead applied the usual standard of presumptive validity. The opinion of the Ninth Court of Appeals reaches two conclusions in this

case. First, that Section 42.01(a)(8) “punishes conduct rather than the content of

speech alone”;19 and second, that Section 42.01(a)(8) “bears a rational relationship

to the State’s legitimate and compelling interest in protecting its citizens from

potential harm.” 20 The Ninth Court is in error because it failed to follow the

precedence set by this Court and consider that expressive conduct is speech for First

Amendment purposes. 21 The Ninth Court’s erroneous conclusion that Section

42.01(a)(8) regulates conduct allowed it to use the incorrect standard to determine

the statute’s constitutionality. The correct conclusion is that in this case, the conduct

(displaying a firearm or other deadly weapon) is expressive conduct and is therefore

speech.

It is true that in most cases where the facial constitutionality of a statue is at

issue that, “[t]o prevail on a facial challenge to the constitutionality of a statute, a

19 Appendix A, at 11. 20 Id. at p. 11-12. 21 See Ex Parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) and State v. Johnson, 475 S.W.3d 860 (Tex. Crim. App. 2015).

8 party must establish that the statute always operates unconstitutional in all possible 22 circumstances” however, this is not the constitutional standard in First

Amendment cases. The Ninth Court’s opinion begins its analysis by quoting the

correct standard as expressed in Ex Parte Lo:

The burden normally rests upon the person challenging the statute to establish its unconstitutionality. [W]hen the government seeks to restrict and punish speech based on its content, the usual presumption of constitutionality is reversed. Content-based regulations (those laws that distinguish favored from disfavored speech based on the ideas expressed) are presumptively invalid, and the government bears the burden to rebut the presumption.”23

The Court then ignores the analysis and ultimate holding in Lo and instead focuses

on dicta to conclude that the mere display of a deadly weapon is conduct and

therefore subject to the constitutional standard that presumes a statute’s validity.24

The Ninth Court’s opinion holds that the display of a firearm or other deadly

weapon, is conduct and not an act of expressive speech. However, this Court has

recently addressed the issue of conduct versus speech in Ex Parte Thompson, and

State v. Johnson. These two cases deftly tackle the issue of determining when

conduct that is not inherently expressive is still protected by the First Amendment.

The unescapable similarity to the issue at hand in this case dictate that the conduct

22 State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). 23 Appendix at 9, quoting Ex Parte Lo, 424 S.W.3d 10, 14-15 (Tex. Crim. App. 2013). 24 Id.

9 of displaying a firearm or other deadly weapon should be analyzed under the same

scheme.

This Court in State v. Johnson, held that the Texas flag desecration statute is

unconstitutional and, stated:

The Supreme Court has recognized that the conduct of intentionally or knowingly damaging a United States flag is not inherently expressive. As a result, a statute that proscribes such conduct will at least theoretically apply to some circumstances that do not implicate the First Amendment. The question is whether the applications of such a statute that do implicate (and violate) the First Amendment are so substantial that the statute must be held invalid on its face.25

This Court applied strict scrutiny to Texas Penal Code Sec. 42.11, because even

though the destruction or abuse of a flag is not inherently expressive, there are

substantial expressive acts involving the desecration of a flag so that the statute was

declared unconstitutional. If conduct is not inherently expressive, the test to

determine if the conduct is in fact protected expressive speech is set forth in

Thompson. Conduct that is not inherently expressive implicates the First

Amendment if: (1) there was an intent to convey a particularized message, and (2)

the likelihood was great the message would be understood by those who viewed it.26

The Ninth Court’s opinion mentioned yet ignored evidence that was presented

during the hearing that on several occasions firearms were “displayed” in public

25 Johnson, 475 S.W.3d at 873. 26 Thompson, 442 S.W.3d at 334.

10 places as an essential element of a political protest, thereby showing that displaying

a firearm is expressive conduct in those situations. the record contains evidence,

including the testimony — live and by affidavit, from Terry Holcomb and

Christopher Grisham — illustrated, many people engaging in political

demonstrations with firearms have been subject to arrests and threats of arrest for

disorderly conduct under Section 42.01(a)(8).27 Under the Thompson criteria, the

display of a firearm can be intended to express a particularized message; in fact it

was political demonstrations of the display of firearms that helped persuade the 84th

Texas Legislature to legalize “open carry” of a handgun by license holders.28

The conduct of displaying a weapon is as expressive and “alarming” as black

arm bands, 29 offensive clothing, 30 or burning the United States flag. 31 Section

42.01(a)(8) regulates expressive speech (the display of a firearm) based upon its

content (a manner calculated to alarm). This content regulation is unconstitutional

because its language, specifically “displayed in a manner calculated to alarm,” is

vague and overbroad. Section 42.01(a)(8) does not regulate where or when a deadly

weapon can be displayed but instead makes a value judgment as to which displays

27 See RR Vol. 1, p. 9, lines 8-23; CR Vol. 1, p. 60-65. 28 The most relevant part of HB910 was the amendment to Texas Penal Code Sec. 46.15(b)(6) that creates an exception to Texas Penal Code Sec. 46.02, for visible handguns carried in belt or shoulder holsters by handgun license holders. 29 Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969). 30 Cohen v. California, 403 U.S. 15 (1971). 31 Texas v. Johnson, 491 U.S. 397 (1989).

11 of firearms or other deadly weapons are lawful and which are unlawful. Therefore,

it is a regulation of a substantial amount of expressive conduct based upon its

content.

Intermediate scrutiny does not apply to this case because the statute is not a

content-neutral time, place, or manner restriction. As this Court stated in Ex Parte

Thompson, “Generally, a law is considered to be Content based if it distinguishes

‘favored speech from disfavored speech on the basis of the ideas or views

expressed.’ ‘If it is necessary to look at the content of the speech in question to decide

if the speaker violated the law, then the regulation is content-based.’”32 This Court

then uses the following example to illustrate its point, “For example, a statute that

prohibits an adult from communicating with a minor via the internet is content-

neutral, but a statute that prohibits an adult from communicating with a minor via

the internet in a sexually explicit manner is content-based.”33 An otherwise content-

neutral restriction may be rendered content-based if it discriminates because of the

intent of the speech.34

The conduct regulated by Section 42.01(a)(8) is very analogous to the

32 Thompson, 442 S.W.3d at 345 (Tex. Crim. App. 2014) (quoting Turner Broadcasting System v. Federal Communications Commission, 512 U.S. 622, 643 (1994) and Ex Parte Lo, 424 S.W.3d 10, 15 n.12 (Tex. Crim. App. 2013)). 33 Id. 34 Id., 442 S.W.3d at 347 (Tex. Crim. App. 2014) (holding that a portion of Section 21.15 of the Texas Penal Code was content-based because it discriminated on the basis of the underlying sexual thought).

12 communication this Court used as an example in Thompson. If the statute prohibited

all displays of deadly weapons, including firearms, it would be content neutral. Since

the statute only prohibits displays that are done in a manner calculated to alarm, it

regulates the content of the display. For instance, Texas Penal Code Sec. 46.03

(Places Weapons Prohibited) and Texas Penal Code Sec. 46.035 (Unlawful Carrying

of Handgun by License Holder) contain several places where the possession and

display of firearms, illegal knives, clubs, and prohibited weapons, is illegal without

regard to why they are carried or displayed. Because Section 42.01(a)(8) allows only

certain types of displays of firearms or other deadly weapons to be communicated

in a public place, it is a content-based regulation and therefore intermediate scrutiny

does not apply.

Second Ground for Review: The Ninth Court of Appeals erred when it held that Texas Penal Code Sec. 42.01(a)(8) was not unconstitutionally overbroad in violation of the First Amendment. This finding was based upon the Court’s application of the incorrect presumption of validity instead of the presumption of invalidity. If the Ninth Court had applied the correct constitutional standard when

judging the constitutionality of Section 42.01(a)(8), the statute would have failed as

being overbroad. This Court recently quoted the United States Supreme Court as

stating, “The first step in overbreadth analysis is to construe the challenged statute;

it is impossible to determine whether a statute reaches too far without first knowing

13 what the statute covers.”35 Section 42.01(a)(8) prohibits the intentional or knowing

display of a firearm or other deadly weapon in a public place in a manner calculated

to alarm. The statute contains no definitions, qualifications, exceptions, or defenses.

The only limitation to the statute prohibiting every display of a firearm or other

deadly weapon, is that only the displays “calculated to alarm” are prohibited. The

statute fails to detail what “calculated to alarm” actually means. Under Section

42.01(a)(8), a person could be accused and convicted of displaying a firearm or other

deadly weapon in a manner calculated to alarm based solely on the location of the

display without regard to how the firearm or other deadly weapon was actually

displayed or the purpose of the individual displaying it. Section 42.01(a)(8) allows

the police and prosecutors to make assumptions about the person’s intent without

regard to specific conduct, and to base arrests and prosecutions on those

assumptions, about where and under what circumstances a display can be made,

including when they are considered “inherently alarming.”36 A detention, arrest, and

prosecution can be done without any prior notice or guidance to a person who is

doing nothing more than legally carrying a visible firearm in a public place.

Because Section 42.01(a)(8) is challenged on First Amendment grounds, it

may be declared unconstitutional on its face, even if it may have some legitimate

35 Johnson, 475 S.W.3d at 871, citing United States v. Williams, 553 U.S. 285, 293 (2008). 36 This reference is made in response to the State’s Brief to the Ninth Court at page 13, when it contended that some displays of deadly weapons should be considered “inherently alarming” based solely on where the display occurs.

14 application and even if the parties before the court were not engaged in activity

protected by the First Amendment.” 37 Therefore, any arguments supporting the

assertion that Section 42.01(a)(8) may have some legitimate applications or that

Derek Ty Poe was not actually engaged in First Amendment activities because he

was in a shopping mall when he was accused of disorderly conduct, are not

determinative to the analysis of facial constitutionality. If a statute is overbroad to

the extent that it impedes or implicates substantial protected First Amendment

activity then it is unconstitutional.38 A statute is not unconstitutionally overbroad if

it is narrowly tailored so that it prohibits certain conduct without prohibiting

constitutionally protected conduct. 39 If a statute substantially impairs protected

speech, it is unconstitutional even if it justifiably prohibits unprotected speech.

Recently the Texas Court of Criminal Appeals stated, “According to the First

Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a

‘substantial’ amount of protected speech ‘judged in relation to the statute’s plainly

legitimate sweep.’ The State may not justify restrictions on constitutionally

protected speech on the basis that such restrictions are necessary to effectively

suppress constitutionally unprotected speech...”40

37 Johnson, 475 S.W.3d at 865, citing United States v. Stevens, 559 U.S. 460, 473 (2010). 38 See Ex Parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) and Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). 39 See Bynum v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989) (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1981)). 40 Lo, 424 S.W.3d at 18 (Tex. Crim. App. 2013) (citing Virginia v. Hicks, 539 U.S. 113, 118-19

15 Section 42.01(a)(8) is not narrowly drawn because it overlaps numerous

Texas Penal Code statutes that prohibit specific dangerous or unsafe conduct

involving firearms and other deadly weapons. For instance, Section 22.02

criminalizes exhibiting a firearm during the course of an assault; Section 22.05(a)

prohibits recklessly pointing a firearm in the direction of another; Section 22.05(b)

prohibits knowingly discharging a firearm in the direction of persons, habitations,

buildings, or vehicles; Section 22.07 prohibits threatening to commit any offense

involving violence; Section 42.12 prohibits recklessly discharging a firearm in a city

of over 100,000 people; Section 42.01(a)(7) prohibits intentionally discharging a

firearm in a public place; Section 42.01(a)(9) prohibits intentionally discharging a

firearm across a public road; Sections 46.03 and 46.035 criminalize carrying a

firearm into specific prohibited locations. The fact that all other dangerous or unsafe

conduct with a firearm is regulated and prohibited by other penal statutes, means

that the only conduct that Section 42.01(a)(8) actually criminalizes that the others

do not, are First Amendment activities.

The Ninth Court’s conclusion that Section 42.01(a)(8) “bears a rational

relationship to the State’s legitimate and compelling interest in protecting its citizens

from potential harm”41 is not only unsubstantiated but also undermined because of

(2003) and Ashcroft v. Free Speech Coalition, 535 U.S. 234, 235 (2002) emphasis in original.) 41 Appendix A, at 11-12.

16 the existence of these other laws. All of the aforementioned statutes are drafted to

prohibit very specific harmful conduct with a firearm. Conversely, Section

42.01(a)(8) is a broad catch-all that allows for the criminalization of the conduct of

displaying a firearm or other deadly weapon and is not based upon the inherent

danger or unsafe manner of the display, but rather based on the subjective feelings

of whether another person may find the display of a firearm to be alarming and

contact the police.

Third Ground for Review: The Ninth Court of Appeals erred when it held that Texas Penal Code Sec. 42.01(a)(8), was not void for vagueness in violation of the First Amendment. This finding was based upon the application of the incorrect presumption of validity instead of the presumption of invalidity. The Ninth Court goes to great length to point out that the statute focuses on

the culpable mental state of the actor; in fact the Court states that in order to convict

a person under this statute, the State must prove not only that the actor’s display was

intentional but must prove beyond a reasonable doubt that the actor displayed the

deadly weapon with the particular intent to cause alarm;42 as if this issue of intent

lessens the statute’s vagueness. This illustrates just how vague the statute actually

is. Even with this specific-intent requirement, the statute does not meet the standards

of the well-established constitutional Grayned/Long test for vagueness. As this

Court stated, a statute is void for vagueness if it “either forbids or requires the doing

42 Id. at 13.

17 of an act in terms so vague that men of common intelligence must guess as to its

meaning and differ as to its application.”43

Statutes that impact First Amendment freedoms demand greater specificity

than laws that do not. A law must be clearly written so that it establishes determinate,

explicit guidelines for law enforcement to prevent arbitrary arrests and enforcement,

and it does not have a chilling effect on protected freedom of expression.44 This

Court’s opinion in Long v. State, while quoting the Supreme Court and the Fifth

Circuit Court of Appeals, states:

When a statute is capable of reaching First Amendment freedoms, the doctrine of vagueness “demands a greater degree of specificity than in other contexts.” Greater specificity is required to preserve adequately the right of free expression because “[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone that if the boundaries of the forbidden areas were clearly marked.” Moreover, when a vagueness challenge involves the First Amendment considerations, a criminal law may be held facially invalid even though it may not be unconstitutional as applied to the defendant’s conduct.45

This Court used Long to set forth the test to determine if a statute is

unconstitutionally vague:

• First, a person of ordinary intelligence must be given a reasonable opportunity to know what is prohibited;

43 Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979). 44 Long v. State, 931 S.W.2d 285, 287-88 (Tex. Crim. App. 1996) (citing Grayned v. Rockford, 408 U.S. 104 (1972) and Kramer v. Price, 712 F.2d 177 (5th Cir. 1983)). 45 Id. 931 S.W.2d at 287-288, (quoting Graynard v. Rockford, 408 U.S. 104, 109 (1972) and Kramer v. Price, 712 F.2d 174, 177 (5th Cir. 1983)).

18 • Second, the law must establish determinate guidelines for law enforcement;

• Finally, where First Amendment freedoms are implicated, the law must be sufficiently definite to avoid a chilling protected expression.46

Therefore, in order to survive a constitutional challenge, a statute must meet

each of these requirements. Failing to meet even a single prong of this test from Long

renders the statute unconstitutional.

The operative term of Section 42.01(a)(8), “manner calculated to alarm” is

entirely subjective and allows the police and prosecutors to act arbitrarily and

selectively as to which people who are displaying deadly weapons will be arrested

and which ones will not.

The Ninth Court ignored the fact that this Court has twice clearly and

explicitly stated that the term “alarm” is inherently vague.47 Since the word “alarm”

is the gravamen of Section 42.01(a)(8), it is important that the statute define, limit,

or qualify its meaning and application in order to lessen its inherent vagueness.

Section 42.01(a)(8) does none of this. As this Court has stated, “[t]he court further

explained that a statute’s vagueness is not lessened by making the conduct dependent

upon each complainant’s sensitivities. Finally, the court held that the intent

46 Id. 931 S.W.2d at 287. 47 See May v. State, 765 S.W.2d 438, 440 (Tex. Crim. App. 1989); Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996). The Texas Court of Criminal Appeals took its guidance from the federal Fifth Circuit in Kramer v. Price, 712 F.2d 174, 177-178 (5th Cir. 1983), who declared that the word “alarm” in the Texas harassment statute was inherently vague.

19 requirement did not save the statute because the underlying conduct was still

vague.”48

The reason that criminal laws must be clearly stated is because the criminal

justice system requires that the citizens, police, prosecutors, and ultimately jurors be

provided definitive guidelines to distinguish between acts of criminal conduct and

the hundreds of acts of non-criminal conduct that may arise from similar

circumstances. As the State’s brief to the Ninth Court clearly acknowledges, “There

are infinite ways to display a firearm or other deadly weapon.”49 It is possible that

every single one of these “infinite ways” could be described as “a manner calculated

to alarm,” if so then the statute acts as a complete prohibition of the constitutional

and statutory right to wear, bear, and carry arms, for all purposes including those

protected by the First Amendment. The State has argued in its brief that carrying and

displaying a semi-automatic firearm in a public place, such as a mall, is “inherently

alarming.”50 However, on January 1, 2016, a handgun license holder’s display of

holstered semi-automatic handguns in public places, such as malls, became legal

under Section 46.15(b)(6). If it is “inherently alarming” as the State argues, then this

means that any handgun license holder who lawfully displays a handgun in a belt or

shoulder holster in a mall or other public place, has therefore done so in a manner

48 Long, 931 S.W.2d at 288. 49 State’s Brief to the Ninth Court, at 7 (emphasis added). 50 Id. at 13.

20 “calculated to alarm.” It is this kind of sweeping application of Section 42.01(a)(8)

due to its vague language that illustrates that the law is unconstitutional.

It is important to remember that constitutional jurisprudence requires that

“when a vagueness challenge involves First Amendment considerations, a criminal

law may be held facially invalid even though it may not be unconstitutional as

applied to the defendant’s conduct.”51 This means that even if Petitioner was not

exercising his First Amendment freedoms when he walked through a mall with a

rifle safely slung across his back, Section 42.01(a)(8) can be facially unconstitutional

because it can be used against people who are displaying firearms as an act of clearly

First Amendment expression. Specifically, the people described in the testimony of

Terry Holcomb, the affidavit of Christopher Grisham, and the news stories entered

into evidence by Derek Ty Poe’s trial counsel.52

CONCLUSION

The Court of Criminal Appeals should grant this petition to review the

constitutionality of Section 42.01(a)(8). This statute only criminalizes the protected

expressive conduct of displaying a deadly weapon because other existing Texas

statutes regulate unsafe conduct with a deadly weapon. Section 42.01(a)(8) is

overbroad and vague so that it does not provide a potential defendant or jury, being

51 Long, 931 S.W.3d at 288. 52 CR at 31-66.

21 of ordinary intelligence, with any guidance as to what conduct is prohibited. Further,

the language of Section 42.01(a)(8) provides too much discretion, allowing law

enforcement and prosecutors to act arbitrarily and without notice, and therefore

unconstitutionally infringes on rights protected by the First Amendment.

PRAYER Derek Ty Poe prays that this Honorable Court grant discretionary review in

this matter due to the errors of the Ninth Court of Appeals and order that the issues

cited herein be briefed, oral argument be heard, and thereafter find that Texas Penal

Code Sec. 42.01(a)(8) is facially unconstitutional.

/s/ T. Edwin Walker T. EDWIN WALKER State Bar No. 00786324 1020 Bay Area Blvd., Suite 216 Houston, Texas 77058 Tel: (281) 668-9957 Fax: (281) 282-9419 Email: tewalker@walkerbyington.com ATTORNEY FOR DEREK TY POE

22 CERTIFICATE OF SERVICE

This certifies that on June 20, 2016, a true and correct copy of the foregoing

motion was served upon the Jefferson County District Attorney’s Office via

Jefferson County Assistant District Attorney, Wayln G. Thompson through

electronic service at his email address, thompson@co.jefferson.tx.us.

/s/ T. Edwin Walker T. Edwin Walker

CERTIFICATE OF COMPLIANCE I hereby certify that this document complies with the typeface requirements

of Tex. R. App. P. 9.4(e) because it has been prepared in Times New Roman, a

conventional typeface, no smaller than 14 point for text and 12 point for footnotes.

This document also complies with the word count limitations of Tex. R. App. R.

9.4(i) because it contains 4,490 words, excluding parts exempted by Tex. R. App. P.

9.4(i)(1).

23 APPENDIX A Opinion of the Ninth Court of Appeals in No. 09-15-00373-CR

Ex Parte Derek Ty Poe

24 In The

Court of Appeals Ninth District of Texas at Beaumont ________________

NO. 09-15-00373-CR ________________

EX PARTE DEREK TY POE __________________________________________________________________

On Appeal from the County Court at Law No. 2 Jefferson County, Texas Trial Cause No. 301268-A __________________________________________________________________

OPINION

Derek Ty Poe was charged by information with the misdemeanor offense of

disorderly conduct. See Tex. Penal Code Ann. § 42.01(a)(8) (West Supp. 2015).

Poe filed an application for pretrial writ of habeas corpus, in which he contended

that the disorderly conduct statute is facially unconstitutional due to its alleged

vagueness and its alleged infringement upon his rights under the First, Second,

Fifth, and Fourteenth Amendments to the United States Constitution and Article I,

sections 8, 10, 19, and 23 of the Texas Constitution. See Tex. Penal Code Ann. §

1 42.01(a)(8).1 After conducting an evidentiary hearing, the trial court denied Poe’s

application. In two appellate issues, Poe challenges the trial court’s denial of his

habeas application. We affirm the trial court’s order denying habeas relief.

BACKGROUND

The State charged Poe with disorderly conduct. Specifically, the State

contended that Poe “intentionally and knowingly display[ed] a deadly weapon,

namely a firearm, in a public place and in a manner calculated to alarm[.]” Poe

filed an application for pretrial writ of habeas corpus, in which he asserted that

section 42.01(a)(8) of the Penal Code is unconstitutionally vague, overbroad, and

violates his “constitutional rights to free speech and to bear arms[.]” Poe asserted

that “the act of displaying a firearm is conduct protected by the First Amendment.”

Poe contended that the terms “displaying,” “manner,” “calculated,” and “alarm”

are undefined, rendering the statute vague and overly broad, and he argued that the

statute fails to give a person of ordinary intelligence fair notice “that the statute

1 Although various subsections of section 42.01 have been amended or deleted since the statute was enacted on January 1, 1974, with the exception of being renumbered, the language of the current version of section § 42.01(a)(8) is identical to the language the Legislature used when that subsection was enacted. See Act of May 24, 1973, 63rd Leg., R.S., ch. 399, § 1, sec. 42.01(a)(9), 1973 Tex. Gen. Laws 883, 954 (current version at Tex. Penal Code Ann. § 42.01(a)(8) (West Supp. 2015)). Therefore, we cite to the current version of the statute. 2 outlaws certain conduct and therefore encourages the police and the prosecution to

make arbitrary and erratic arrests and convictions.”

According to Poe, the statute “provides no guidance or explanation as to

what facts or circumstance[s] must exist in order to determine if a defendant’s

conduct was done with the specific intent showing that he calculated his display of

a firearm to be alarming.” Poe maintained that the statute fails to give a reasonable

person guidance as to what specific conduct is prohibited, and the statute’s

deficiencies “prevent law enforcement from having clear guidance as to what

conduct in displaying a firearm is criminalized as being ‘a manner calculated to

alarm.’” Poe also argued that section 42.01(a)(8) has a chilling effect on public

displays of firearms as an exercise of First Amendment rights. In addition, Poe

contended that the statute violates the fundamental rights of persons to keep and

bear arms under the Second Amendment.

Poe attached three affidavits to his application. The affidavit of T. Edwin

Walker, Poe’s attorney, stated that Walker had done an internet search for protests

and activities involving open display of firearms for First Amendment purposes,

and he averred that the twenty-eight pages attached to his affidavit were true and

correct copies of the original news articles as posted on the Internet. Terry Louis

Holcomb averred in his affidavit that he is the Executive Director of Texas Carry,

3 Inc., a non-profit corporation that advocates for open carry of handguns. Holcomb

explained in the affidavit that “we plainly communicated to the Texas Legislature

that if they did not allow a vote on the bill for open carry of a handgun with a

concealed handgun license, . . . we would put on our long guns and carry them all

across Texas in protest of the restrictions on our handguns.” According to

Holcomb,

[t]he sole purpose of openly carrying rifles and shotguns is to express our belief that people should be allowed to openly carry handguns. We are attempting to educate the public not alarm them. We have no intention to alarm anyone which is why all rifles and shotguns are displayed in a safe[,] non-threatening manner.

Holcomb further averred that in Texas, there have been eighteen arrests for

openly carrying a rifle, shotgun, or “replica pre-1899 black powder pistol,” without

a single conviction. According to Holcomb, “[w]e are intimidated with threat of

arrest and told we cannot openly carry rifles, shotguns, and replica pre-1899 black

powder pistols because a person may find the mere display of them to be

alarming.” Christopher John Grisham averred in his affidavit that he is President

and Founder of Open Carry Texas (OCT), a non-profit gun rights group.

According to Grisham, “OCT members have been arrested more than two dozen

times for the lawful carry of their firearms openly as an expression of our mission

to educate Texans on gun rights and secure more meaningful legislation that

4 recognizes our right to keep and bear arms.” Grisham averred that “citizens can be

arrested for a mere complaint and claim that one is ‘alarmed’ and not because any

actual crime was committed.” According to Grisham, openly carrying long arms

and pre-1899 antique or replica revolvers is

immensely important as a [First] Amendment issue as it draws attention and encourages dialogue on our efforts. No single method of speech has been more successful for us than the open display of firearms in a peaceful and respectful manner than carrying these long arms. Signs and flags only draw attention to the protestor, not the cause.

Grisham stated that “the law creates different standards depending on the

complainant’s beliefs about guns in public.”

In response to Poe’s application, the State asserted that three days after

Christmas 2013, during evening hours when Parkdale Mall was crowded, Poe

“harnessed and shouldered an AR-15 223 Caliber Assault Rifle [] and began

traversing the Mall. Mall patrons[] and store workers were horrified, and as a

result, many calls were made to 911.” 2 According to the State, when Beaumont

police officers approached Poe, Poe “immediately became belligerent with the

officers while espousing [his] Second Amendment Rights[,]” but Poe eventually 2 The State’s use of the language “assault rifle” to describe the AR-15 is, at best, inaccurate. These rifles are not capable of being fired in the automatic mode; the trigger must be pulled every time a bullet is fired. The “AR” designation references ArmaLite, the firearms manufacturing company that originally designed the AR-15. 5 gave the rifle to the officers. The State asserted that Poe revealed to the officers

that he was walking around the mall simply to exercise his Second Amendment

right. The State argued that section 42.01(a)(8) is not overly broad or

unconstitutionally vague, and asserted that Poe’s actions were “clearly calculated

to cause fear and panic.”

At the habeas hearing, Poe testified that he had served in the Army for four

years, and at the time of the alleged offense, he owned a firearms accessory store

called Golden Triangle Tactical, which was located in Parkdale Mall. Poe testified

that he commonly carried his rifle from his home to his place of business at the

mall. Poe testified that on the day of the incident in December 2013, he was

carrying the rifle across his back, and he had a bag of food in one hand and a drink

in the other hand. According to Poe, he was carrying the rifle in a safe manner, and

he was not threatening anyone or presenting the rifle in a threatening manner. Poe

testified that, based upon his experience in the military, whenever a threat is

anticipated, a rifle is carried in front of the body in what is called the “low ready”

stance “so we could bring it up to the high ready if we’re ready to engage.”

According to Poe, if someone were walking in anticipation of using his rifle, he

would not carry it across his back.

6 Poe explained that part of the reason he carries his rifle on his back is

because he believes he has a First Amendment right to do so to advocate for his

Second Amendment rights. According to Poe, whenever he is walking with his

rifle on his back, he is expressing his belief in the Second Amendment. Poe

testified that he also carries his rifle to protest restrictions on open carry of

handguns. Poe testified that Parkdale Mall is owned by a private company, and he

explained that prior to the incident that led to his being charged with disorderly

conduct, Parkdale Mall’s management and security guards had never told him not

to bring his rifle into the mall.

Terry Holcomb Sr. testified that he is the executive director of Texas Carry,

which he explained is “a Second Amendment gun rights policy group that works

with the legislature to enact removing barriers for our Second Amendment rights.”

Holcomb testified that he engages in First Amendment activities as an advocate for

firearms rights. According to Holcomb, some of Texas Carry’s First Amendment

activities involve walking while wearing long rifles or long shotguns. Holcomb

explained that the purpose of carrying guns in that manner was to protest Texas’s

lack of an open carry law for handguns, and people who were doing so were

anticipating that other people will see them. Holcomb testified that the purpose of

displaying the firearms in such a manner is not to cause alarm, but to “educate the

7 Texas citizens to the absurdity of our current laws.” According to Holcomb,

displaying a rifle on a sling across someone’s back or side is a safe, non-

threatening means of displaying the gun.

Holcomb testified that activists against gun rights sometimes use the

disorderly conduct statute against gun rights protesters by a practice called

“swatting.” Holcomb explained that swatting involves contacting law enforcement

and reporting that someone protesting by wearing a gun is about to rob a store,

waving the gun around, or doing something threatening. According to Holcomb,

although swatting is a common practice, no protester has been convicted under the

disorderly conduct statute. Holcomb testified, “we’re all very much aware that if

we try and express our protests [at the capitol in Austin] that they will arrest us.”

During cross-examination, Holcomb testified that someone exercising First

Amendment rights cannot falsely shout the word “fire” in a crowded theater or the

words “hijack” or “gun” on an airplane. Holcomb also explained that the owner of

private property can prohibit the carrying of a firearm on his property.

POE’S ISSUES

In his first issue, Poe argues that section 42.01(a)(8) of the Texas Penal Code

“is unconstitutionally vague pursuant to the First, Second, Fifth, and Fourteenth

Amendments to the United States Constitution.” In his second issue, Poe argues

8 that section 42.01(a)(8) is unconstitutionally overbroad. We address Poe’s issues

together.

“Whether a statute is facially constitutional is a question of law that we

review de novo.” Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). We

presume that a statute is valid and that the Texas Legislature did not act

unreasonably or arbitrarily. Id. at 14-15. “The burden normally rests upon the

person challenging the statute to establish its unconstitutionality.” Id. at 15.

“[W]hen the government seeks to restrict and punish speech based on its content,

the usual presumption of constitutionality is reversed.” Id. “Content-based

regulations (those laws that distinguish favored from disfavored speech based on

the ideas expressed) are presumptively invalid, and the government bears the

burden to rebut that presumption.” Id.

Before a statute will be invalidated on its face as overbroad, the overbreadth

must be real and substantial when “judged in relation to the statute’s plainly

legitimate sweep.” Id. A statute should not be invalidated for overbreadth merely

because it is possible to imagine some unconstitutional application. See In re Shaw,

204 S.W.3d 9, 15 (Tex. App.—Texarkana 2006, pet. ref’d). With respect to

vagueness, statutes are not necessarily unconstitutionally vague merely because the

words or terms employed in the statute are not specifically defined. See Engelking

9 v. State, 750 S.W.2d 213, 215 (Tex. Crim. App. 1988). When a statute does not

define the words used therein, we will give the words their plain meaning. See

Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim. App. 1999); see also Tex. Gov’t

Code Ann. § 311.011(a) (West 2013) (“Words and phrases shall be read in context

and construed according to the rules of grammar and common usage.”). A statute

will be invalidated if it fails to give a person of ordinary intelligence a reasonable

opportunity to know what conduct is prohibited. See State v. Holcombe, 187

S.W.3d 496, 499 (Tex. Crim. App. 2006). We will not invalidate a statute for

overbreadth “merely because it is possible to imagine some unconstitutional

applications.” In re Shaw, 204 S.W.3d at 15.

Because Poe makes a facial challenge to the statute, he must prove that the

statute is unconstitutional in every application, and that the statute could never be

constitutionally applied to any defendant under any set of facts or circumstances. 3

See State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013); Santikos v.

State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992). As previously discussed,

whether a statute is facially constitutional is a question of law that we review de

novo. Ex parte Lo, 424 S.W.3d at 14; Maloney v. State, 294 S.W.3d 613, 626 (Tex.

3 Poe has not made an ‘as-applied’ challenge; further, the factual development of the evidence in the record before us is insufficient to allow us to consider such a claim. 10 Crim. App. 2009). If we determine that there is a reasonable construction which

will render the statute constitutional, we must uphold the statute. Tarlton v. State,

93 S.W.3d 168, 175 (Tex. App. – Houston [14th Dist.] 2002, pet. ref’d).

Section 42.01(a)(8) provides as follows: “A person commits an offense if he

intentionally or knowingly . . . displays a firearm or other deadly weapon in a

public place in a manner calculated to alarm[.]” Tex. Penal Code Ann. §

42.01(a)(8). The plain wording of section 42.01(a)(8) provides that the punishable

conduct is the intentional and knowing display of a firearm in a public place, and

the actor must display the firearm “in a manner calculated to alarm[.]” Id.

(emphasis added). Section 42.01(a)(8) specifically includes a mens rea: it states the

person must act intentionally or knowingly when he displays a firearm in a public

place, and his displaying of the firearm must have been calculated to alarm. Id.

The disorderly conduct offense defined by subsection (a)(8) is the conduct of

displaying a firearm in a public place in a manner calculated to alarm. See id.

In this case, the charging instrument alleged that Poe “intentionally and

knowingly displayed a deadly weapon, namely a firearm, in a public place and in a

manner calculated to alarm[.]” We conclude that (1) the statute punishes conduct

rather than the content of speech alone, and (2) the statute bears a rational

relationship to the State’s legitimate and compelling interest in protecting its

11 citizens from potential harm. See Broadrick, 413 U.S. 601, 615 (1973); Ex parte

Woodall, 154 S.W.3d 698, 702 (Tex. App.—El Paso 2004, pet. ref’d) (holding that

ordinance restricting smoking bears a rational relationship to interest in protecting

general health, safety, and welfare); see also Ex parte Lo, 424 S.W.3d 10, 16-17

(noting the distinction between regulating speech versus regulating conduct).

Because section 42.01(a)(8) punishes conduct, we reject Poe’s argument that

we should analyze his appellate issues using the strict scrutiny standard of review.

Accordingly, we begin by presuming that the statute is valid, and that the

legislature did not act arbitrarily or unreasonably in enacting the statute. Ex parte

Lo, 424 S.W.3d at 15.

As previously discussed, Poe asserts that the statute is “unconstitutionally

vague because it does not give a reasonable person guidance as to what specific

conduct is prohibited.” Poe complains that the word “alarm” is “inherently

subjective[,]” and he argues that “there is a great degree of variance of human

perception of which conduct is alarming[.]” We begin by looking to the language

of the statute and giving terms their plain meaning. See Parker, 985 S.W.2d at 464;

see also Tex. Gov’t Code Ann. § 311.011(a).

Although the statute does not define the terms “manner[,]” “calculated[,]” or

“alarm[,]” we conclude that those words have commonly known and accepted

12 usage and meaning. “Manner” is defined as the “mode or method in which

something is done or happens.” WEBSTER’S THIRD NEW INT’L DICTIONARY 1376

(2002). “Calculated” is defined as “planned or contrived so as to accomplish a

purpose or achieve an effect: thought out in advance: deliberately planned[.]” Id. at

315. “Alarm” is defined as “fear or terror resulting from a sudden sense of

danger[.]” Id. at 48. We conclude that the statute describes the criminal offense

with sufficient definiteness that ordinary people can understand what conduct is

prohibited. See Holcombe, 187 S.W.3d at 499. The statute’s requirements that the

display of a firearm be done intentionally or knowingly and in a manner calculated

to alarm take the context of the actor’s speech into question and require the State to

meet a high burden of proving the requisite mental state. We conclude that the

statute is reasonably related to the State’s legitimate interest in protecting the

public from harm. Poe has not satisfied his burden to prove that the statute is

unconstitutionally vague, and we conclude that the statute provides fair notice of

the prohibited conduct.

The United States Supreme Court has held that the overbreadth doctrine

involves balancing the effects of the statute on protected speech with the otherwise

legitimate and necessary prohibition of antisocial behavior that has been made

criminal. See United States v. Williams, 553 U.S. 285, 292 (2008). The United

13 States Supreme Court held as follows: “In order to maintain an appropriate

balance, we have vigorously enforced the requirement that a statute’s overbreadth

be substantial, not only in an absolute sense, but also relative to the statute’s

plainly legitimate sweep. Invalidation for overbreadth is ‘strong medicine’ that is

not to be ‘casually employed.’” Id. (internal citations omitted). Section 42.01(a)(8)

unambiguously provides that a person is prohibited from “intentionally or

knowingly” displaying a weapon in a public place “in a manner calculated to

alarm[.]” Tex. Penal Code Ann. § 42.01(a)(8).

We conclude that although there clearly are constitutional rights to bear arms

and to express oneself freely, there is no constitutionally protected right to display

a firearm in a public place in a manner that is calculated to alarm. In addition, we

note that Poe’s own evidence indicates that the statute is rarely employed against

protesters and has not resulted in any convictions of protesters who are exercising

their First and Second Amendment rights. The statute’s plainly legitimate sweep

bears a rational relationship to the State’s interest in public safety and welfare.

Accordingly, we overrule Poe’s issues and affirm the trial court’s order denying

Poe’s application for writ of habeas corpus.

14 AFFIRMED.

______________________________ STEVE McKEITHEN Chief Justice

Submitted on December 23, 2015 Opinion Delivered April 20, 2016 Publish

Before McKeithen, C.J., Horton and Johnson, JJ.

15 CONCURRING OPINION

In this pretrial habeas proceeding, Poe challenges section 42.01(a)(8) 1 of the

disorderly conduct statute and argues that the statute is facially unconstitutional

and unconstitutionally vague. I agree with the majority’s conclusion to overrule

Poe’s facial constitutional challenges and his challenge that the statute is

unconstitutionally vague. I write separately from the majority to clarify the basis

for my conclusion that Poe has failed to meet his heavy burden to establish a facial

challenge to the statute.

Facial Constitutional Challenges

A defendant may file a pretrial application for writ of habeas corpus in order

to raise a facial challenge to the constitutionality of the statute under which the

defendant is charged. Ex parte Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App.

2014). Whether a statute is facially unconstitutional is a question of law subject to

de novo review. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When

the constitutionality of a statute is attacked, a court usually must presume that the

1 Tex. Penal Code Ann. § 42.01 (a)(8) (West Supp. 2015) (see Majority Opinion at n.1 for further reference). The relevant statutory language is as follows: § 42.01. Disorderly Conduct (a) A person commits an offense if he intentionally or knowingly: ... (8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm[.] 1 statue is valid and that the Legislature has not acted unreasonably or arbitrarily. Id.

at 15. With respect to constitutional provisions other than the First Amendment, a

facial challenge to the constitutionality of a statute will succeed only if it is shown

that the statute is unconstitutional in all of its applications. State v. Johnson, 475

S.W.3d 860, 864 (Tex. Crim. App. 2015). With respect to facial challenges that

pertain to an activity or speech protected by the First Amendment, the challenger

may also bring a “substantial overbreadth” challenge. United States v. Stevens, 559

U.S. 460, 473 (2010). Under the “substantial overbreadth” doctrine, the statute

may be invalidated as overbroad if “a substantial number of its applications are

unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Id.

The “substantial overbreadth” challenge may be made when a statute restricts or

punishes speech based upon its content. Ex parte Lo, 424 S.W.3d at 15. There is no

recognized application of the “substantial overbreadth” doctrine to any challenge

outside of certain First Amendment challenges. McGruder v. State, 2016 Tex.

Crim. App. LEXIS 36, *5 (Tex. Crim. App. 2016) (citing United States v. Salerno,

481 U.S. 739, 745 (1987); Briggs v. State, 789 S.W.2d 918, 923 (Tex. Crim. App.

1990); State ex rel. Lykos v. Fine, 330 S.W.3d at 904, 909 & n. 13. (Tex. Crim.

App. 2011)).

2 The overbreadth doctrine is “strong medicine” that is used “sparingly and

only as a last resort.” Johnson, 475 S.W.3d at 865 (citing New York State Club

Ass’n v. City of New York, 487 U.S. 1, 14 (1988); Broadrick v. Oklahoma, 413

U.S. 601, 613 (1973); Ex parte Thompson, 442 S.W.3d at 349)). When making a

“substantial overbreadth” challenge under the First Amendment, the challenger

must establish that the statute as written “prohibit[s] a substantial amount of

protected expression, and the danger that the statute will be unconstitutionally

applied must be realistic and not based on ‘fanciful hypotheticals.’” Id. (footnotes

omitted) (quoting Stevens, 559 U.S. at 485 (Alito, J., dissenting)). Therefore, Poe

must demonstrate “‘that a substantial number of instances exist in which the Law

cannot be applied constitutionally.’” See id. (quoting New York Club Ass’n, 487

U.S. at 14). “The Supreme Court generally does not apply the ‘strong medicine’ of

overbreadth analysis where the parties fail to describe the instances of arguable

overbreadth of the contested law.” Id. (quoting, Wash. State Grange v. Wash. State

Republican Party, 552 U.S. 442, 449-450 (2008)).

3 Poe’s First Amendment Challenge

Poe argues that section 42.01(a)(8) is facially unconstitutional because the

statute infringes upon his First Amendment 2 right to freedom of speech. While I

agree with the majority that as written section 42.01(a)(8) appears to regulate

conduct rather than speech, the display of a weapon could, in some instances, be

connected to the exercise of free speech. Expressive conduct may, in some

instances, run afoul of the First Amendment, and some statutes that prohibit such

conduct may indeed be facially unconstitutional. See, United States v. Eichman,

496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397 (1989); State v. Johnson, 475

S.W.3d at 882 (“[T]he Texas flag-destruction statute, by its text and in actual fact,

prohibits a substantial amount of activity that is protected by the First Amendment,

judged in relation to its legitimate sweep. Consequently, we hold that the Texas

flag-destruction statute is facially invalid because it is unconstitutionally overbroad

in violation of the First Amendment.”).

On the other hand, not all types of speech or expressive conduct are

protected by the First Amendment. See Chaplinsky v. New Hampshire, 315 U.S.

568, 572 (1942) (“fighting words” constitute “no essential part of any exposition of 2 “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. CONST. amend. I. 4 ideas,” and therefore are not protected by the First Amendment); R.A.V. v. City of

St. Paul, 505 U.S. 377, __(1992) (Scalia, J., writing for the majority explained that

“the exclusion of ‘fighting words’ from the scope of the First Amendment simply

means that, for purposes of that Amendment, the unprotected features of the words

are, despite their verbal character, essentially a ‘nonspeech’ element of

communication. Fighting words are thus analogous to a noisy sound truck: Each is,

as Justice Frankfurter recognized, a ‘mode of speech,’ [citation omitted] both can

be used to convey an idea; but neither has, in and of itself, a claim upon the First

Amendment.”).

In R.A.V. v. City of St. Paul, the Supreme Court examined a statute that

prohibited certain expressive conduct that included racially motivated cross

burning or displays and behavior that the Supreme Court described as

“reprehensible.” 505 U.S. at 396. Therein, several teenagers, including the

petitioner, allegedly assembled and burned a cross inside the fenced yard of a

family that lived across the street from the petitioner. The City could have charged

the petitioner with several different criminal violations, but petitioner was charged

with a violation of the St. Paul “Bias-Motivated Crime Ordinance,” St. Paul,

Minn., Legis. Code § 292.02 (1990). According to the majority, even though the

expression that was reached by the statute might be proscribable under the

5 “fighting words” doctrine, the court “nonetheless conclude[d] that the ordinance is

facially unconstitutional in that it prohibits otherwise permitted speech solely on

the basis of the subjects the speech addresses.” Id. at 381.

Nevertheless, when the intent as outlined within a statute “is to do something

that, if accomplished, would be unlawful and outside First Amendment protection,

such as the intent to threaten or intimidate, such an intent might help to eliminate

First Amendment concerns.” Ex parte Thompson, 442 S.W.3d at 338. For example,

in Scott v. State, 322 S.W.3d 662, 669-70 (Tex. Crim. App. 2010),3 the Court of

Criminal Appeals upheld the harassment statute section 42.07(a)(4), and concluded

that the statute is not unconstitutionally vague and that it does not implicate the

free speech guarantee under the First Amendment, as it is directed only at someone

who with the specific intent to inflict emotional distress, repeatedly uses the

telephone to invade the personal privacy of another person in a manner reasonably

likely to inflict emotional distress. In contrast, in Ex parte Thompson, the Court of

Criminal Appeals struck down the “Improper Photography or Visual Recording”

3 In Wilson v. State, 448 S.W.3d 418, 423 (Tex. Crim. App. 2014), the Court of Criminal Appeals disavowed a footnote contained in Scott which related to the term “repeated,” and the Court provides further guidance on use of the phrase “repeated telephone communications.” Justice Keller, joined by Justice Johnson, indicates that in light of the “abandonment of some of the rationales in Scott” the Court should, “when the issue is raised again, re-evaluate” its holding in Scott. Id. at 426-27 (Keller, J., concurring). 6 statute because “to the extent it proscribes the taking of photographs and the

recording of visual images, [it] is unconstitutional on its face in violation of the

Free Speech clause of the First Amendment.” See 442 S.W.3d at 330, 351. The

photography statute expressly covered all photographs other than those taken in a

bathroom or private dressing room, and it was therefore “designed as a catch-all, to

reach other situations in which photography and visual recordings ought to be

prohibited.” Id. at 349.

In comparison to the “Bias Motivated” statute in R.A.V. v. City of St. Paul,

or the flag destruction statutes in Texas v. Johnson and State v. Johnson, and the

photography statute in Ex parte Thompson, the statute that Poe is charged under is

more analogous to the harassment statute in Scott v. State. Section 42.01(a)(8) does

not prohibit a person from using a symbol as part of expressive conduct, does not

prohibit “otherwise permitted speech solely on the basis of the subjects the speech

addresses,” and it does not act as a catch-all provision to reach expressive conduct.

Rather, the plain language in section 42.01(a)(8) prohibits conduct that, if

accomplished, would be unlawful and outside First Amendment protection, in that

it criminalizes an intentional or knowing act that is done in a manner calculated to

alarm, and would not be substantially protected by the First Amendment.

Accordingly, I agree with the majority that the statute as written regulates conduct

7 and not speech. See generally State v. Paquette, No. 09-15-00361-CR, 2016 Tex.

App. LEXIS 1858, at *7 (Tex. App.—Beaumont Feb. 24, 2016, no pet.)

(discussing online solicitation provision and rejecting overbreadth challenge to

Tex. Penal Code section 33.021(c) under the First Amendment); Ex parte

Victorick, No. 09-13-00551-CR, 2014 Tex. App. LEXIS 5429, at **6-18 (Tex.

App.—Beaumont May 21, 2014, pet. ref’d) (mem. op., not designated for

publication), cert. denied, Victorick v. Texas, 135 S. Ct. 1557, 191 L. Ed. 2d 638

(2015).

Poe has failed to establish that the statute in question prohibits a substantial

amount of activity that is protected by the First Amendment, judged in relation to

its plainly legitimate sweep. Accordingly, I agree with the decision of the majority

to overrule Poe’s First Amendment challenge to the statute. We expressly do not

decide whether the statute is unconstitutional as applied to Poe.4

4 A facial challenge to the constitutionality of a statute must generally assert that there are no factual circumstances under which the statute would be constitutional. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 909 (Tex. Crim. App. 2011). When making a facial challenge, evidence regarding how the statute operates in practice is irrelevant. Id. at 908-09. In a facial challenge, we consider how the statute is written rather than how it operates or is applied in practice. Salinas v. State, 464 S.W.3d 363, 367 (Tex. Crim. App. 2015). The Court of Criminal Appeals has cautioned against the use of pretrial writs to adjudicate certain constitutional challenges. See Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001) (pretrial habeas may not be available for “as applied” challenge but may be available when facial challenge to constitutionality of statute is made); 8 Poe’s Second Amendment Challenge

With respect to Poe’s challenge under the Second Amendment, in my

opinion, the Court must analyze this challenge separately from the First

Amendment because the “substantial overbreadth” doctrine would not apply to

Poe’s Second Amendment challenge.

The framers of the United States Constitution expressly recognized the right

of the people to “keep and bear [a]rms[.]” See U.S. CONST. amend. II (“A well

regulated Militia, being necessary to the security of a free State, the right of the

people to keep and bear Arms, shall not be infringed.”). The Second Amendment

extends to and protects an individual right to keep and bear arms and the Second

Amendment is fully applicable to the States. Caetano v. Massachusetts, No. 14-

10078, 2016 U.S. LEXIS 1862, at **1-2 (March 21, 2016) (per curiam) (citing

District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of

Chicago, 561 U.S. 742, 750 (2010)).

see also Ex parte Perry, No. PD-1067-15, 2016 Tex. Crim. App. LEXIS 43, at **7-8 (Tex. Crim. App. Feb. 24, 2016) (explaining in further detail instances where a pretrial habeas challenge might be available for particular “as-applied” challenges). I express no opinion as to an “as-applied” challenge, and note that a party generally has a different burden to establish an “as-applied” challenge. See Combs v. STP Nuclear Operating Co., 239 S.W.3d 264, 272 (Tex. App.—Austin 2007, pet. denied) (“[A] party making an as-applied challenge need only show that the statute is unconstitutional because of the manner in which it was applied in a particular case.” An as-applied challenge is “fact specific[.]”). 9 In Heller, the United States Supreme Court held that the District of

Columbia’s statute that prohibited the possession of handguns in the home, as well

as its provision requiring handguns to be inoperable if kept in the home, violated

the right guaranteed to the individual by the Second Amendment to the Federal

Constitution. 554 U.S. at 635. Nevertheless, as stated by Justice Scalia in the

Heller majority opinion, the fundamental right secured by the Second Amendment

is not unlimited.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. [] For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. [] Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Id. at 626-27 (internal citations and footnote omitted).

The Heller majority explained that the ruling was consistent with the earlier

case of United States v. Miller, 307 U.S. 174 (1939). See id. at 621-23. According

to Heller, “Miller stands only for the proposition that the Second Amendment

10 right, whatever its nature, extends only to certain types of weapons.” Id. at 623. In

Miller, the defendant was charged with illegally possessing a short-barreled

shotgun and the Supreme Court rejected his challenge that the state statute

prohibiting the possession of such weapons was in violation of the right to “keep

and bear arms” guaranteed by the Second Amendment. 307 U.S. at 175-77, 182-

83. Nevertheless, it would be wrong to conclude that the scope of the Second

Amendment applies only to those weapons useful in warfare. As noted by the

Heller majority, there may be some weapons like machine guns, for example, that

would be useful in warfare but are not typically possessed by law abiding citizens

for law abiding purposes. 554 U.S. at 624. The majority concluded that the

operative clause in the Second Amendment, “the right of the people to keep and

bear Arms, shall not be infringed[,]” is not limited by the introductory or prefatory

clause which references a “well regulated Militia[.]” See id. at 577-78. “[T]he

Second Amendment extends, prima facie, to all instruments that constitute

bearable arms, even those that were not in existence at the time of the founding.”

Id. at 582. However, the majority emphasized that the right to “keep and bear

arms” does not import a right to “keep and carry any weapon whatsoever in any

manner whatsoever and for whatever purpose.” See id. at 626.

11 In 2010, the United States Supreme Court held that the Second

Amendment’s protections apply fully to the states. McDonald, 561 U.S. at 750. In

McDonald, the Supreme Court examined whether the Second Amendment applied

to a Chicago law that banned handguns in the home. Id. at 750-53. The McDonald

majority, authored by Justice Alito, stated:

Two years ago, in District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), we held that [1] the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home. The city of Chicago (Chicago or City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that [2] most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that [3] the Second Amendment right is fully applicable to the States.

Id. at 749-50. The Supreme Court again noted, as previously discussed in Heller,

the Second Amendment right to “keep and bear arms” is not unlimited and again

referenced the “longstanding” regulations discussed in Heller. McDonald, 561 U.S.

at 786 (citing Heller, 554 U.S. at 626-27).

In Jackson v. City and County of San Francisco, 135 S. Ct. 2799 (2015), in a

7-2 decision, the Supreme Court denied the petition for writ of certiorari wherein

the petitioners sought to enjoin a San Francisco Police Code provision that

12 provides that no person shall keep a handgun within a residence owned or

controlled by that person unless the gun is stored in a locked container or with a

trigger lock, as well as other limitations. In a dissent authored by Justice Thomas

and joined by Justice Scalia, the dissent argued that the lower appellate court’s

decision was questionable, and the dissent would have granted the petition in light

of Heller. 135 S. Ct. at 2799-2802 (Thomas, J., dissenting).

In Friedman v. City of Highland Park, 136 S. Ct. 447 (2015), in a 7-2

decision, the Supreme Court denied the petition for writ of certiorari and refused to

review the ruling of the Seventh Circuit Court of Appeals upholding an ordinance

in the City of Highland Park, Illinois, which included a ban on semiautomatic

firearms such as the AR-15 rifle. In a dissent once again authored by Justice

Thomas and joined by Justice Scalia, the dissent argued that the ban was directly in

violation of Heller, and the dissent would have granted the petition. 136 S. Ct. at

447 (Thomas, J. dissenting). The dissent explained that law-abiding citizens carry

and possess such weapons for self-defense and target shooting, and it should not

matter whether law-abiding citizens might have other firearms they could use for

such purposes. Id. at 448-50. Furthermore, the dissent noted there is a distinction

between such firearms and sawed-off shotguns, which are not commonly used by

law abiding citizens for lawful purposes. Id. at 449. The dissent stated “[i]f a broad

13 ban on firearms can be upheld based on conjecture that the public might feel safer

(while being no safer at all), then the Second Amendment guarantees nothing.” Id.

Most recently, in Caetano v. Massachusetts, in a per curiam decision, the

Supreme Court followed Heller, and concluded that the Second Amendment

applied to a Massachusetts law prohibiting the possession of stun guns. 2016 U.S.

LEXIS 1862, at **1-2. The Supreme Court held that the Second Amendment’s

protections include the right of an individual to carry a stun gun for self-defense.

Id. at **2-3. The Supreme Court reaffirmed its previous analysis in Heller that the

Second Amendment protects the individual right to “keep and bear arms” even

with respect to weapons like stun guns that were not traditionally used in warfare.

Id.; Heller, 554 U.S. at 624-25.

Heller, when read in conjunction with Caetano, confirms that the Second

Amendment right to keep and bear arms necessarily includes the individual right of

law-abiding citizens to keep and bear arms (firearms and other weapons such as

“stun-guns”) for self-defense. See Caetano, 2016 U.S. LEXIS 1862, at **2-3;

McDonald, 561 U.S. at 749-50; Heller, 554 U.S. at 635. 5 Nevertheless, we also

5 Justice Thomas has also acknowledged that firearms such as “modern sporting rifles (e.g., AR-style semiautomatic rifles)” are owned by many Americans “for lawful purposes like self-defense, hunting, and target shooting.” Friedman v. City of Highland Park, 136 S. Ct. 447, 447-50 (2015) (Thomas, J. dissenting). In the case at bar, Poe was carrying an AR-15 rifle. 14 know that the Second Amendment right to “keep and bear arms” does not import a

right to “keep and carry any weapon whatsoever in any manner whatsoever and for

whatever purpose.” Heller, 554 U.S. at 626. Heller expressly did not “undertake an

exhaustive historical analysis [] of the full scope of the Second Amendment[.]” Id.

Similarly, in the matter now before us, this Court need not engage in an exhaustive

discussion regarding the full scope of the Second Amendment. Rather, the issue

before us today is whether section 42.01(a)(8) of the disorderly conduct statute is

facially unconstitutional under the Second Amendment.

The statutory provision that Poe challenges prohibits a person from

“intentionally or knowingly . . . display[ing] a firearm or other deadly weapon in a

public place in a manner calculated to alarm[.]” “[T]o prevail on a facial

challenge” under the Second Amendment, Poe had the burden to “establish that the

statute always operates unconstitutionally in all possible circumstances.” See State

v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). Poe has failed to

establish that the statute on its face as written always operates in all possible

circumstances to unconstitutionally infringe upon the rights guaranteed under the

Second Amendment. See Salinas v. State, 464 S.W.3d 363, 367 (Tex. Crim. App.

2015). Therefore, I agree with the decision of the majority to overrule Poe’s facial

15 challenge under the Second Amendment. We expressly do not decide whether the

statute is unconstitutional as applied to Poe. 6

Poe’s Challenge under the Fifth Amendment and State Constitution

Poe fails to include any argument in his brief pertaining to his allegations

that the statute is facially unconstitutional pursuant to the Fifth Amendment to the

United States Constitution and he fails to include any specific argument regarding

his claim under Article I, Sections 8, 10, 19 and 23 of the Texas Constitution.

The “brief must contain a clear and concise argument for the contentions

made, with appropriate citations to authorities and to the record.” Tex. R. App. P.

38.1(i). Conclusory arguments that cite no authority present nothing for our

review. See Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011); Vuong v.

State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992); Atkins v. State, 919 S.W.2d

770, 774-75 (Tex. App.—Houston [14th Dist.] 1996, no pet.). Accordingly, I

would also overrule Poe’s challenge with respect to the Fifth Amendment, and

Article I, Sections 8, 10, 19 and 23 of the Texas Constitution.

6 See n.3. 16 I concur in the majority’s decision to overrule Poe’s issues and to affirm the

trial court’s order denying Poe’s application for writ of habeas corpus.

_____________________________ LEANNE JOHNSON Justice

Concurrence Delivered April 20, 2016