In the
Court of Appeals Second Appellate District of Texas at Fort Worth
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No. 02-26-00041-CR
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THE STATE OF TEXAS, Appellant V.
ROBEL ISAC
On Appeal from the 158th District Court Denton County, Texas
Trial Court No. F25-3508-158
Before Sudderth, C.J.; Womack and Walker, JJ. Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
In one issue, the State of Texas appeals1 the trial court’s pretrial order dismissing the indictment charging Appellee Robel Isac with obstruction or retaliation based on statements that he made against two police officers on social media. The State contends that it was “unauthorized and premature” for the trial court to grant Isac’s first amended motion to dismiss (motion to dismiss) challenging the constitutionality of Texas Penal Code Section 36.06 “as applied”2 to him. See Tex. Penal Code § 36.06. We agree that the dismissal was premature and will reverse and remand.
II. BACKGROUND
A. Isac is arrested and indicted for obstruction or retaliation.
In December 2024, Isac was arrested for the offense of obstruction or retaliation. The probable cause affidavit3 requesting the warrant provided, in relevant part, the following:4
See Tex. Code Crim. Proc. art. 44.01(a)(1) (providing that the State is entitled 1
to appeal an order of a criminal court dismissing an indictment).
An “as applied” constitutional challenge to a penal statute “concedes the 2
general constitutionality of the statute, but asserts that the statute is unconstitutional as applied to his particular facts and circumstances.” State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011).
We have not corrected the affidavit for grammar, spelling, or punctuation.
3
As part of this investigation, on Thursday, November 14, 2024, Lewisville Police Department administrative staff were made aware of a social media account on X Corp. (formerly Twitter), where the username [ ] had made several public posts involving threats to commit violence against law enforcement personnel.
Specifically, this user account was created in November 2023, and is selfproclaimed to be “located” at “ShootACop, Texas”. . . . Most of these posts involve threats of violence to law enforcement, but there are four different posts that specifically name Lewisville PD Officer Wyatt Sparkman, and one post that specifically names former Lewisville PD Officer Ryan Grant. . . .
The posts and the date/time of their posting are copied here, from newest[5] to oldest,[6] with an added asterisk next to the posts specifically naming either Officer Sparkman or Officer Grant:
....
* I can’t wait to catch that bitch wyatt ....
Cop commits crime . . . cop gets put in the dirt ....
Turn a filthy pig into some bacon ....
Walking around Lewisville with my gun allllll day don’t get 6millioned ....
*wyatt sparkman and ryan grant from the Lewisville police department are felons 1 and 2 ....
4 Because the dismissal forming the basis of this appeal occurred prior to trial, we look to the facts in the probable cause affidavit to provide the background for Isac’s arrest and to put into context the trial court’s dismissal of the indictment. See State v. Johnson, No. 02-24-00062-CR, 2024 WL 5162689, at *1 n.1 (Tex. App.—Fort Worth Dec. 19, 2024, pet. ref’d) (mem. op., not designated for publication).
5 The newest post was made on November 11, 2024.
6 The oldest post was made on September 14, 2024.
4
*Got info on that felon wyatt sparkman from the lewisville police department ....
Walking around Lewisville Texas heavily armed ....
Hitler killed 50 million whites and destroyed europe … true Hero ....
*Fuck Lewisville police and that felon wyatt sparkman ....
Shoutout to Lance Storz for killing 3 criminal cops in a perfectly executed ambush ....
Approach me with any kind of hostility and get ya ass sent up ....
I got thousands of rounds but I need some mo ....
The second a lewisville cop tries to commit a crime against me is the second they get put on a tee ....
5.56 going right thru ya vest ....
A criminal thinks he gets qualified immunity . . . let’s see how that qualified immunity works out when you’re in the hospital with burning holes thru ya ....
walking around lewisville stomping on the american flag with a gun on my hip don’t even approach me ....
It’s a good day when you wake up and a criminal cop from the lewisville texas police department is dead and burning in hell ....
Cop commits crime . . . cop gets shot in the face ....
a cop in Lewisville Texas got shot Ge ....
Im smokin yo man he got hit with da K ....
Lewisville pd can lick my nuts ....
In Lewisville Texas heavily armed ....
5
TRY TO RUN UP ON ME GET HIT WITH THE BLATT The affidavit also included information linking Isac to the account containing these comments as well as “two events” that connected Isac to Officers Grant and Sparkman. Finally, it stated that Isac “intentionally or knowingly threatened to harm by an unlawful act another person (Officer Wyatt Sparkman and Officer Ryan Grant), in retaliation for or on account of the service or status Officer Sparkman and Officer Grant provided as public servants, in violation of Texas Penal Code [S]ection 36.06, Obstruction or Retaliation, a third-degree felony.” B. After being indicted, Isac moves to dismiss the indictment.
Isac was indicted in August 2025 on two counts of obstruction or retaliation.
The indictment charged Isac with “intentionally or knowingly threaten[ing] to harm another, namely”—Wyatt Sparkman in Count I and Ryan Grant in Count II—“by an unlawful act, namely murder or aggravated assault, in retaliation for and on account of the service or status” of each officer “as a public servant, namely a peace officer.”
Isac moved to dismiss the indictment, arguing that there was “no unlawful act, no threats transmitted directly to any officer, no physical conduct towards any officer, no attempt to locate any officer, and no steps toward committing any unlawful act against a peace officer.” He contended that the “First Amendment of the United States Constitution prohibits the government from criminalizing speech unless said
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speech falls into a narrowly defined category often referred to as ‘true threats.’”7 Citing Counterman, Isac urged that “[i]f Texas Penal Code Section 36.06 is interpreted to impose liability without proof of subjective intent as required by Counterman, the statute is unconstitutional as applied.”
According to Isac’s motion, “The speech in this case does not express serious intent to commit unlawful violence, nor does it specify any plan or reflect that the Accused believed or intended the words to be taken as threats.” Isac argued that “[i]f Section 36.06 is applied to [his] speech in this case, the statute becomes unconstitutionally overbroad[] and chills protected expression.” Isac attached copies of the social media posts as an exhibit to his motion. C. The trial court has a hearing on the motion to dismiss.
At the hearing on the motion to dismiss, there were no witnesses, but the trial court took judicial notice of its files, the State offered exhibits containing the social media posts into evidence, and both sides argued. Isac contended that a “reasonable reading of the posts does not read as a genuine threat.” Further, he urged that the facts of the case do not align with Counterman, as the State could not prove that there was a “serious expression of intent to commit unlawful violence” or that “the speaker was at least reckless as to whether the speech would be perceived as a real threat.”
“True threats of violence . . . lie outside the bounds of the First Amendment’s 7
protection.” Counterman v. Colorado, 600 U.S. 66, 72, 143 S. Ct. 2106, 2113 (2023).
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While agreeing that some of the statements “fall under free speech,” the State argued that when read “in their totality,” the statements in the posts are “very clear [that Isac] is targeting . . . specific officers from Lewisville PD, . . . Wyatt Sparkman and Ryan Grant.” At the conclusion of the hearing, the trial court granted the motion to dismiss. D. The trial court dismisses the indictment, and the State appeals.
The trial court signed an order granting the motion to dismiss. The State filed its notice of appeal and requested findings of fact and conclusions of law, which the trial court entered. The State filed objections to the findings of fact and conclusions of law, stating that they were “not supported by the record [and] inappropriate without development at a trial on the merits.”
III. DISCUSSION
In its sole appellate issue, the State contends that the trial court erred when it granted Isac’s motion to dismiss challenging the constitutionality of Texas Penal Code Section 36.06 “as applied” to him prior to trial on the merits. Isac responds that “[t]his case presents the rare circumstance in which the constitutional issue was fully justiciable before trial because the State identified the speech itself as the complete factual basis for prosecution and no further evidentiary development was necessary.” We agree with the State.
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A. We set out the standard of review and the applicable law.
“[T]here is no general authority, written or unwritten, inherent or implied, which would permit a trial court to dismiss a case without the prosecutor’s consent.” State v. Gabaldon, 727 S.W.3d 1, 14 (Tex. Crim. App. 2025) (quoting State v. Johnson, 821 S.W.2d 609, 613 (Tex. Crim. App. 1991)). A trial court only gains the authority to dismiss a case over the State’s objection when it is “authorized by constitution, statute or common law.” Id. (quoting State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003)); see State v. Dinur, 383 S.W.3d 695, 700 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (stating that the case law recognizes a trial court’s authority to dismiss a case without the prosecutor’s consent (1) where a defendant has been denied a right to a speedy trial; (2) where there is a defect in the charging instrument; (3) where a defendant is detained and no charging instrument is presented; and (4) to remedy certain Sixth Amendment violations of the right to counsel). Other constitutional violations not yet identified may also support a trial court’s dismissal of a case. Gabaldon, 727 S.W.3d at 14 (quoting Dinur, 383 S.W.3d at 700). However, while a trial court may dismiss a charging instrument to remedy a constitutional violation, “such dismissal is ‘a drastic measure only to be used in the most extraordinary circumstances.’” State v. Hill, 558 S.W.3d 280, 284 (Tex. App.—Dallas 2018, no pet.) (citing State v. Frye, 897 S.W.2d 324, 330 (Tex. Crim. App. 1995)); see Mungia, 119 S.W.3d at 817 (stating that dismissal of an indictment is “a drastic measure only to be used in the most extraordinary circumstances” (quoting Frye, 897 S.W.2d at 330)).
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Because a statute may be valid as applied to one set of facts and invalid as applied to a different set of facts, an “as applied” constitutional challenge concedes the general constitutionality of the statute but asserts that the statute is unconstitutional as applied to the defendant’s particular facts and circumstances. Lykos, 330 S.W.3d at 910. “An ‘as applied’ challenge is brought during or after a trial on the merits, for it is only then that the trial judge and reviewing courts have the particular facts and circumstances of the case needed to determine whether the statute or law has been applied in an unconstitutional manner.” Id.; see Flores v. State, 245 S.W.3d 432, 437 (Tex. Crim. App. 2008) (stating that the purpose of a pretrial motion such as a motion to quash the indictment is to address “those issues that can be determined before there is a trial on the general issue of the case” (quoting Woods v. State, 153 S.W.3d 413, 415 (Tex. Crim. App. 2005))). “As applied” claims “must be reserved for another day,” given that “the record is undeveloped and thus we do not yet know what evidence the State will present at trial to support its allegations.” State v. Rosseau, 396 S.W.3d 550, 558 n.9 (Tex. Crim. App. 2013).
When reviewing the dismissal of an indictment, an appellate court must review the trial court’s ruling under a bifurcated standard. State v. Krizan-Wilson, 354 S.W.3d 808, 815 (Tex. Crim. App. 2011). We must give almost total deference to a trial court’s findings of facts that are supported by the record, as well as mixed questions of law and fact that rely upon the credibility of a witness. Id. However, we apply a
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de novo standard of review to pure questions of law and mixed questions that do not depend on credibility determinations. Id. B. We set out the law regarding obstruction or retaliation.
Under the obstruction or retaliation statute, a person commits an offense “if the person intentionally or knowingly harms or threatens to harm another by an unlawful act . . . in retaliation for or on account of the service or status of another as a . . . public servant.” Tex. Penal Code § 36.06(a)(1)(A); see Lebleu v. State, 192 S.W.3d 205, 209 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (“The elements of retaliation are (1) intentionally or knowingly, (2) threatening, (3) to harm another, (4) by an unlawful act, (5) in retaliation for or on account of the service or status of another, (6) as a public servant, witness, prospective witness, or informant.”).
“[T]he elements do not require that [the accused] intend[s] to carry out the threat, take[s] any affirmative steps to carry out the threat, or even that [he] issue[s] the threat directly to the public servant or witness.” Id. The retaliation statute also does not require that the threat to harm in retaliation be imminent. Barnes v. State, 631 S.W.3d 281, 286 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d); Helleson v. State, 5 S.W.3d 393, 396 (Tex. App.—Fort Worth 1999, pet. ref’d). C. We apply the law to the facts.
Here, Isac made only an “as applied” challenge, claiming in his motion to dismiss that Texas Penal Code Section 36.06 “is unconstitutional as applied” to him. Similarly, on appeal, Isac urges only an “as applied” challenge. While acknowledging
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that “Texas caselaw currently allows an as[]applied constitutional argument as to a criminal statute only to be raised during trial or after a trial,” Isac argues that his case is distinguishable because the “evidence of the alleged threats in this case consisted of only six exhibits, and no other evidence was necessary to determine whether or not the content of that speech was protected.”
Similar to Isac’s contention, the trial court’s findings of fact stated that “[t]he material facts relevant to the constitutional challenges are undisputed,” and the conclusions of law provided that a “criminal defendant may raise an as[]applied constitutional challenge prior to trial when the relevant facts are undisputed and the issue presented is a question of law.” The trial court cited Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010), in support of its conclusions.
However, the State did not agree that the material facts were undisputed. At the hearing on the motion to dismiss, there was no agreement regarding the evidence that would be admitted at an upcoming trial. Moreover, the State specifically objected to the trial court’s findings and conclusions, urging that it had “not had an opportunity to develop and present its case at a trial on the merits” and noting that “nobody can predict what the evidence will show at trial.”
While the trial court cited Ellis in support of its findings and conclusions, Ellis dealt with constitutional challenges to the money laundering statute and to certain Election Code provisions relating to corporate contributions. Id. at 74–5. The Court of Criminal Appeals also held in Ellis that “[p]retrial habeas can be used to bring a
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facial challenge to the constitutionality of the statute that defines the offense but may not be used to advance an ‘as applied’ challenge.” Id. at 79 (emphasis added); see Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016) (“We have held pretrial habeas to be an appropriate vehicle to assert a facial constitutional challenge to the validity of a statute, and, conversely, we have stated that pretrial habeas cannot be used to advance an as-applied constitutional challenge to a statute.”); see also Ellis, 309 S.W.3d at 80 (stating that “[i]f a claim designated as a facial challenge is in fact an as-applied challenge, courts should refuse to consider the merits of the claim”).
In its brief, the State argues that Lykos and Flores support its contention that a pretrial motion may not be used to raise an “as applied” constitutional challenge to a statute. In Lykos, the Court of Criminal Appeals held that because a claim that a statute is unconstitutional as applied required a review of the evidence, it could not be properly raised by a pretrial motion to quash the indictment. Lykos, 330 S.W.3d at 910. Moreover, it held that the trial court did not have authority to conduct a pretrial evidentiary hearing with regard to a defendant’s “as applied” constitutional challenge to a statute. Id. at 919. In Flores, the Court of Criminal Appeals affirmed the denial of a pretrial motion to quash the indictment based on an “as applied” equal protection challenge because it could have been resolved only by evidence adduced at trial. Flores, 245 S.W.3d at 437.
Isac contends that Flores and Lykos are distinguishable because the law in those cases is limited to their specific facts and their facts were “more complex and took
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more time to develop[;] thus trial was the recommended avenue for relief.” But he has cited no caselaw to support this restrictive view of the holdings in those cases, and we likewise have found none. See Lykos, 330 S.W.3d at 919 (stating that the defendant “has cited no state law or state procedure that permits a pretrial evidentiary hearing to determine the ‘as applied’ constitutionality of a state penal law or state criminal procedural statute, nor are we able to find one”).
Moreover, despite Isac’s claim and the trial court’s findings that the material facts in this cases were undisputed, the State never made such an agreement. In fact, we do not yet know what evidence the State will present at trial to support its allegations. See Rosseau, 396 S.W.3d at 558 n.9. For this court to hold that Penal Code Section 36.06 is unconstitutional as applied to Isac would require that we speculate about the evidence the State would present at trial. See State v. Burciaga, No. 08-23- 00034-CR, 2024 WL 3917196, at *5 (Tex. App.—El Paso Aug. 23, 2024, pet ref’d) (not designated for publication) (“[F]or this Court to hold the statute is unconstitutional as-applied would require that we speculate about the evidence the State would present at trial in support of the allegations.”). We thus conclude that Isac’s “as applied” claims are all premature as they cannot be addressed at this stage of the proceeding. Accordingly, we hold that the trial court abused its discretion in dismissing prior to trial, without the State’s consent, Isac’s indictment for obstruction or retaliation. See Johnson, 2024 WL 5162689, at *21. We sustain the State’s issue.
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IV. CONCLUSION
Having sustained the State’s sole issue, we reverse the trial court’s order dismissing the indictment and remand for further proceedings.
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: August 27, 2026