Renn v. State

495 S.W.2d 922

• Court: Court of Criminal Appeals of Texas
• Decided: June 20, 1973
• Docket: 45975
• Status: Published

Opinions

OPINION

MORRISON, Judge.

The offense is the casting of contempt upon the flag of the United States. The jury assessed punishment at ten (10) years imprisonment and appellant was placed on probation as required by the jury’s recommendation.

The record reflects that on June 14, 1970, Flag Day, appellant displayed a flag, from the second floor porch of a two story residence, on which the field of stars had been replaced by a peace symbol.

The first two grounds of error challenge the constitutionality of Article 152, Vernon’s Ann.P.C. These contentions were answered adversely to appellant in our recent opinion in Delorme v. State, Tex.Cr.App., 488 S.W.2d 808, which we hold to be retroactive so as to apply to the case at bar which was tried prior to our decision in Delorme v. State, supra. See also Van Slyke v. State, Tex.Cr.App., 489 S.W.2d 590, and Deeds v. State, Tex.Cr.App., 474 S.W.2d 718.

Appellant’s third ground of error contends that the displaying of the flag of the United States is not an act within the ambit of Article 152, supra. Appellant’s argument that since his testimony established that the removal of the stars by the use of a razorblade and the sewing of the peace symbol in lieu of the stars was done in private it constituted a private act and is, therefore, outside the reach of Article 152, supra, is without merit. The display of the flag, so mutilated, is the act which is punishable by Article 152, supra.

Appellant’s next three grounds of error challenge the sufficiency of the evidence. Appellant contends the evidence is insufficient to show that he displayed a flag of the United States, that he cast contempt upon the flag of the United States, or that he intended to cast contempt upon the flag of the United States.

It is undisputed that appellant removed the stars from a field of blue on the flag of the United States, that he then sewed a peace symbol, of his own design, in its place and that he then displayed the flag where it would be visible from a public street in the city of Dallas. This act so committed constitutes a violation of Article 152, supra. Compare State v. Nicola, N.D., 182 N.W.2d 870.

Appellant next contends that the court erred in granting the State’s motion to strike from the indictment the words “by words and”.¹ In Delorme v. State, supra, this Court concluded that these very words were not essential to a valid definition of the crime here involved. Such’ being so, they are no longer to be considered words of substance which may not be deleted by the terms of Article 28.10, Vernon’s Ann.C.C.P.

Appellant’s last ground of error is not briefed and, therefore, not in compliance with Article 40.09, Section 9, V.A.C.C.P. Nothing is presented for review. McCary v. State, Tex.Cr.App., 477 S.W.2d 624; Smith v. State, Tex.Cr.App., 473 S.W.2d 216; and Thomas v. State, Tex.Cr.App., 468 S.W.2d 90.

The judgment is reformed to reflect a conviction for casting of contempt upon the flag, and as reformed is affirmed.

1 . The indictment, as amended, reads, in part:

“ . . . did then and there. unlawfully by werés by acts publicly mutilate, deface, defie, defile, and cast contempt upon a flag of the United States of America ...”