State v. Terence Johnson ( 2015 )

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SHARON KELLER ABEL ACOSTA
PRESIDING JUDGE Court of Criminal Appeals CLERK
(512)463-1551
P.O. BOX 12308, CAPITOL STATION
LAWRENCE E. MEYERS
CHERYL JOHNSON
AUSTIN, TEXAS 78711 SIAN SCHILHAB
GENERAL COUNSEL
MIKE KEASLER
(f 13) U.J WW
BARBARA P. HERVEY
ELSA ALCALA
Rl£DIN COJT 0? A?3L^S
BERT RICHARDSON
i2ir Corf of Appeals Disra
KEVIN P. YEARY
DAVID NEWELL
JUDGES
October 07, 2015
12th Court Of Appeals Clerk Joshua Thomas Liles
Cathy Lusk 800 N. Mallard St.
1517 W. Front, Room 354 Palestine, TX 75801
Tyler, TX 75701 * DELIVERED VIA E-MAIL *
* DELIVERED VIA E-MAIL *
Amber N. Bewley
County Attorney Assistant County Attorney
Houston County 401 E. Houston Ave., 2nd Floor
100N6th Crockett, TX 75835
Crockett, TX 75835 * DELIVERED VIA E-MAIL *
Carolyn Rains
District Clerk
POBox 1186
Crockett, TX 75835
* DELIVERED VIA E-MAIL *
Re: STATE vs. JOHNSON, TERENCE
CCA No. PD-0228-14 COA No. 12-12-00425-CR
Trial Court Case No. 12-06-00189-CR
The court has issued an opinion on the above referenced cause number
Sincerely,
Abel Acosta, Clerk
Supreme Court Building, 201 West 14th Street, Room 106, Austin, Texas 78701
Website www.txcourts.gov/cca.aspx
FILED IN COURT OF APPEALS
12tri Court of Appeals District
OCT 082015
TYLER TEXAS
PAM ESTES. CLERK
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0228-14
THE STATE OF TEXAS
v.
TERENCE JOHNSON, Appellee
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE TWELFTH COURT OF APPEALS
HOUSTON COUNTY
KELLER, P.J., delivered the opinion of the Court in which JOHNSON,
KEASLER, HERVEY, ALCALA, and RICHARDSON, JJ., JOINED. ALCALA, J., filed a
concurring opinion. MEYERS, J., filed a dissenting opinion. Yeary, J., filed a dissenting
opinion. NEWELL, J., dissents.
Twenty-six years ago, the United States Supreme Court held that the prosecution ofGregory
Lee Johnson under the Texas flag-desecration statute for burning an American flag violated the First
Amendment.1 Texas has since revised and renamed the statute, which now provides in part:
A person commits an offense if the person intentionally or knowingly damages,
Texas v. Johnson, 491 U.S. 397 (1989).
JOHNSON — 2
defaces, mutilates, or burns the flag of the United States or the State of Texas.2
We hold that the statute is invalid on its face because it is unconstitutionally overbroad in violation
of the First Amendment.
I. BACKGROUND
A. The Incident
Video-camera surveillance showed two men and one woman walking on a covered sidewalk
next to a building. One man jumped towards a hanging United States flag. Then the second
man—appellee—reached andjumped for the flag and caused the flag and its staff to come off its
post into his hand. Appellee thenthrew theflag andits staffintothe street. At almost thesame time
that appellee threw the flag into the street, the other man knocked over flower pots along the
sidewalk. Upon approaching the surveillance camera, appellee made various hand gestures and
walked out of view.
In a recorded interview that occurred later, appellee explained that he threw the flag because
he was "mad." He claimed that he was upset because of racial remarks made about his mother by
a local merchant.
B. Trial Proceedings
As a result of this incident, appellee was charged by information with violating the Texas
flag-destruction statute, TexasPenal Code § 42.11. The information allegedthat, on or aboutApril
29,2012, appellee did "[ijntentionallyorknowingly damage, deface,or mutilatea flagof the United
States by throwing the flag onto the ground/roadway of Highway 19." The information further
alleged that this act was not done in conformity with statutes relating to the proper disposal of
Tex. Penal Code § 42.11(a).
JOHNSON — 3
damaged flags.
Appellee filed a motion to dismiss theinformation. Atthe hearing on themotion to dismiss,
theparties presented argument on the constitutionality of the flag-destruction statute, and the State
introduced the surveillance video and the recording of appellee's interview.
The trial judge ultimately granted the motion to dismiss. In her order, the trial judge
observed that appellee couldhavebeen charged with criminal mischiefunder Texas Penal Code §
28.03, but, because his actions involved the United States flag, officers charged him under § 42.11.
Citing Texas v. Johnson1 and United States v. Eichman,4 thetrial judge concluded, "[Statutes which
criminalize behaviorbecause it specifically prohibits acts againstthe flag of the United States have
consistently been found to be unconstitutional due to the restriction on the Constitutional rights to
free speech and expression." Although Texas amended its statute after the United States Supreme
Court handed down Texas v. Johnson, the trial judge concluded that the current statute contains
language similar to the federal statute in Eichman, in which the Supreme Court found a First
Amendmentviolation. The trialjudge also rejectedthe State's argumentthat the defendant's actions
were not speech. "If an action such as burning the flag is protected speech," the trial judge
explained, "the action of throwing a flag to the ground can alsobe protected] speech. Non-verbal
action is expressive, [and] the government maynot prohibitexpression simplybecause it disagrees
with the message or the way it is expressed." While the trial judge found the mistreatment of the
United States Flag to be "personallyappalling," she concluded that she was "bound to follow the
rulings of higher courts."
3See supra n.1.
4 496 U.S. 310(1990).
JOHNSON — 4
C. Appeal
The State appealed. It contended that the statute was constitutional both on its face and as
applied to appellee. With respect to appellee's facial challenge, the State contended that appellee
had the burden to establish the statute's unconstitutionality and failed to meet that burden. The State
contended that appellee had "not presented any evidence, cases, or arguments establishing [the
statute's] unconstitutionality, with the exception of casesthatneverreachedthe issueof whether the
statute in question wasunconstitutional onitsface." With respect toappellee'sas-applied challenge,
the Statecontendedthat appellee's conductwasnot expressivebecauseanyone observing his actions
wouldbelievemerely that he was vandalizing thehardware storethat displayed the flagandbecause
nothing suggested that appellee wascommunicating anymessage at all. Partof thereason the State
believed appellee's conduct was not expressive was that he told the police that he was angry at a
merchant from a different store from the one whose flag he vandalized.
The court of appeals rejected appellee's claim that the flag-destruction statute was
unconstitutional as applied. It concluded that appellee's conduct was not sufficiently imbued with
elements of communication so as to implicate the FirstAmendment.5 Butthe courtof appeals found
that § 42.11 was unconstitutional on its face because it was overbroad in violation of the First
Amendment.6 In arriving at its holding, the court researched cases in Texas and other jurisdictions
that were handed down after Texas v. Johnson and United States v. Eichman, and the court "found
5 State v. Johnson, 425 S.W.3d 542, 549 (Tex. App.-Tyler 2014). Judge Yeary's dissent
says that the "statutemostcertainly wasapplied constitutionally underthe circumstances presented
here." For reasons discussed later, we do not think that conclusion is self-evident. But appellee did
not file a cross-petition complaining about the court of appeals's disposition of his as-applied
challenge, so we have no occasion to resolve that claim.
6 Id. at 550-54.
 JOHNSON — 5
no case in which an individual was prosecuted under a flag desecration statute that was determined
to be both constitutional on its face and as applied."7 The court of appeals acknowledged that the
lack of authority relating to the prosecution of individuals for flag desecration arguably shows a
patternof non-enforcement, but the court concluded that the statutewas "not sufficiently narrow to
preventa chilling effect on the exercise of First Amendment freedoms" and that the court was "not
permitted to uphold anunconstitutional statute, even if there are promises to use it responsibly."8
II. ANALYSIS
A. The Overbreadth Doctrine
The First Amendment protects, among other things, the freedom of speech.9 The First
Amendment right to freedom of speech applies to the states by virtue of the Fourteenth
Amendment.10
With respectto constitutional provisions otherthanthe FirstAmendment, a facial challenge
to the constitutionality of a statute can succeed only when it is shown that the statute is
unconstitutional in all of its applications.11 And usually, a defendant does not have standing to
7 Mat 551-52.
8 Id. at 553.
9 U.S. Const, amend. I ("Congress shall make no law . . . abridging the freedom of
speech.").
10 West Virginia BoardofEducation v. Barnette, 319 U.S. 624, 638-39 (1943).
1' Washington State Grange v. Washington State Republican Party, 552U.S. 442,449 & n.6
(2008); State v. Rosseau, 396 S.W.3d550, 557-58 (Tex. Crim. App. 2013). Seealso United States
v. Stevens, 559 U.S. 460, 472-73 (2010).
JOHNSON — 6
challenge astatute on the ground that itmay be unconstitutionally applied to the conduct ofothers.n
But under the First Amendment's "overbreadth" doctrine, a law may be declared unconstitutional
on its face, even if it may have some legitimate application and evenif the parties before the court
were not engaged in activity protected by the First Amendment.13 "Ordinarily, the principal
advantage of theoverbreadth doctrine fora litigant is thatit enables himto benefit from thestatute's
unlawful application to someone else."14
The overbreadth doctrine is "strong medicine" that is used "sparingly and only as a last
resort.15 The overbreadth of a statute must be "substantial, not only in an absolute sense, but also
12 County Court of Ulster, N. Y. v. Allen, 442U.S. 140,155 (1979); Broadrickv. Oklahoma,
413 U.S. 601,610 (1973). This generalrule of standing is not the sameas thejurisdictional "injury-
in-fact" standing requirement of Article LU of the United States Constitution. The injury-in-fact
requirement entails a showing that a party has a personal stake inthe outcome ofthe controversy by
requiring that the party's interest be "concrete and particularized" and "actual or imminent" rather
than conjectural or hypothetical. Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334,2341 (2014).
A prosecution under an allegedly unconstitutional law—like in this case—clearly satisfies that
requirement because appellant has been arrested and prosecuted. Id. at 2342 (observing that "an
actual arrest, prosecution, or other enforcement action" is not required to establish injury in fact so
longasthethreatof suchis sufficiently imminent); Secretary ofMaryland v. Joseph H. Munson Co.,
467 U.S. 947, 954-55 (1984) (threat of prosecution was sufficient to establish injury in fact). The
principle that parties may not assert the unconstitutionality of a law as to others is a prudential
standing requirement. Munson, 467U.S. at 955("Inaddition to thelimitations on standing imposed
by Art. ILT's case-or-controversy requirement, there are prudential considerations that limit the
challenges courts are willing to hear" including that the party"must assert his own legal rights and
interests, and cannot rest his claim to relief on the legal rights or interests of third parties."). The
jurisdictional injury-in-fact requirement hasno exceptions in federal court, but prudential standing
requirements have been relaxed "where competing considerations outweigh any prudential rationale
against third-party standing" such as in First Amendment overbreadth claims. Id. at 956-58.
13 Stevens, 559 U.S. at 473; Sabriv. United States, 541 U.S. 600, 609-10 (2004).
14 Board ofTrustees v. Fox, 492 U.S. 469, 483 (1989) (emphasis in original).
15 New York State Club Ass 'n v. City ofNew York, 487 U.S. 1, 14 (1988); Broadrick, 413
U.S. at 613. See also Exparte Thompson, 442 S.W.3d 325, 349 (Tex. Crim. App. 2014).
JOHNSON — 7
relative to the statute's plainly legitimate sweep."16 The statutemust prohibit a substantial amount
of protected expression,17 and the danger that the statute will be unconstitutionallyapplied must be
realistic18 and not based on "fanciful hypotheticals."19 The person challenging the statute must
demonstrate from its text and from actual fact "that a substantial number of instances exist in which
the Law cannot be applied constitutionally."20 The Supreme Court "generally do[es] not apply the
'strong medicine' of overbreadth analysis where the parties fail to describe the instances ofarguable
overbreadth of the contested law."21 Moreover, the overbreadth doctrine is concerned with
preventingthe chillingof protected speechand that concern"attenuatesas the otherwiseunprotected
behavior that it forbids the State to sanction moves from 'pure speech' toward conduct."22 "Rarely,
if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically
addressed to speech or to conduct that is necessarily associated with speech (such as picketing or
demonstrating)."23
Judge Yeary's dissenting opinion suggests that, as a matter of state law, we might be free to
refuse to entertain overbreadth claims. We do not agree. The dissent relies upon the United States
16 'UnitedStates v. Williams, 553 U.S. 285, 292 (2008).
17 Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002); Thompson, 442 S.W.3d at
349-50.
18 Regan v. Time, 468 U.S. 641, 651 n.8 (1984); Thompson, 442 S.W.3d at 350.
19 Stevens, 559 U.S. at 485.
20 New York State Club Ass 'n, 487 U.S. at 14.
21 Washington State Grange, 552 U.S. at 449-50 n.6.
22 Virginia v. Hicks, 539 U.S. 113, 124(2003).
23 Id.
JOHNSON — 8
Supreme Court case of Virginia v. Hicks24 and the Utah Supreme Court case of Provo City Corp. v.
Willden.25 But Hicks itself recognized that whether the claimed overbreadth is substantial enough
to result in facial invalidity involves "not standing, but 'the determination of [a] First Amendment
challenge on the merits.'"26 And in Secretary of Maryland v. Joseph H. Munson Co., the United
States SupremeCourt made it clear that the overbreadthdoctrineis in fact a part of substantiveFirst
Amendment law:
[T]he Secretary urges that Munson should not have standing to challenge the statute
as overbroad because it has not demonstrated that the statute's overbreadth is
"substantial." The Secretary raises a point of valid concern. . . . The Secretary's
concern, however, is one that is more properly reserved for the determination of
Munson's First Amendment challenge on the merits. The requirement that a statute
be "substantially overbroad" before it will be struck down on its face is a "standing"
question only to the extent that if the plaintiff does not prevail on the merits of its
facial challenge and cannot demonstrate that, as applied to it, the statute is
unconstitutional, it has no "standing" to allege that, as applied to others, the statute
might be unconstitutional.27
Moreover, New York v.Ferber contains what appears to be an explicit statement that state courts are
bound to apply the First Amendment overbreadth doctrine: "A state court is not free to avoid a
proper facial attack on federal constitutional grounds. ... By the same token, it should not be
compelled to entertain an overbreadth attack when not required to do so bythe Constitution."28
24 539 U.S. 113(2003).
25
768 P.2d 455 (Utah 1989).
26
539 U.S. at 120 (quoting Munson, bracketed material in Hicks).
27
467 U.S. at 958-59 (citations omitted). See also Sabri, 541 U.S. at 610 (citing
"Monaghan, Overbreadth, 1981 S. Ct. Rev. 1, 24 (observing that overbreadth is a function of
substantive First Amendment law)").
28
458 U.S. 747, 767 (1982) (citing Bigelow v. Virginia, 421 U.S. 809, 817 (1975)).
JOHNSON — 9
The dissent relies on the following passage in Hicks for the proposition that states may adopt
theirownstanding requirements foroverbreadth challenges: "WhetherVirginia'scourtsshould have
entertained this overbreadth challenge is entirely a matter of state law."29 But these comments
appear to relate to the issue of whethera state is bound to apply the narrow standing requirements
that exist in federal court, or whether a state may instead have less stringent standing requirements.
The Supreme Court explained that "the problem" with the Commonwealth's proposal was that the
Court was reviewing the decision of a state supreme court and state courts are not bound "by the
limitations" of a case or controversy or other federal rules ofjusticiability even when they address
issues offederal law.30 The cited comments, therefore, seem to be a recognition ofthe unexceptional
proposition that states can provide defendants more protection than federal law provides.31
The dissent also relies on a passage from Willden32 that appears, on its face, to support the
dissent's position. But in that case, the Utah Supreme Court also seems to suggest that a state's
leeway with respect to standing involved whether the state could have less stringent standing
requirements than those in federal court.33 Regardless of the ambiguity, the Supreme Courtof Utah
29 539 U.S. at 120 (emphasis in original).
30 Id.
31
See Florida v. Powell, 559 U.S. 50, 59 (2010).
32 768 P.2d at 455-56 ("[T]he federal rules on standing ... are not binding on state courts,
and the article HI constitutional restrictions and federalistic prudential considerations that have
guided the evolution of federal court standing law are not necessarily relevantto the development
of the standing rules that apply to Utah's state courts.")
33 See id. at 456-57 (remarking on the "rather narrow standing doctrines developed by the
federalcourts" and quotingthe SupremeCourt's recognitionin New York State Club Ass'n, 487U.S.
at 8 n.2, that state courts may "issue advisory opinions or . . . determine matters that would not
satisfythe more stringent requirement in the federal courts that an actual 'case' or 'controversy' be
JOHNSON —10
ultimately applied the overbreadth doctrine and found the statute before it to be facially
unconstitutional.34
InJaynes v. Commonwealth, theSupreme CourtofVirginia addressed andrejected the exact
argument made inJudge Yeary'sdissent.35 TheVirginia courtremarked that,onits face andwithout
context, the cited passage from Hicks "appears to support the rule of standing advocated by the
Commonwealth. In a nutshell, that rule would be that state courts are not required to apply the same
standing requirements to a claimant who raises a FirstAmendment overbreadth challenge to a state
statute in a state court as would be accorded a claimant in a federal court considering a similar First
Amendment overbreadth claim."36 "However," the court responded, "when viewed in the context
of the standing issue actually presented in [Hicks], and the longstanding Fourteenth Amendment
jurisprudence by which First Amendment rights aremadeapplicable in statecourtproceedings, we
disagree with theCommonwealth's arguments."37 Virginia's high court noted this colloquy, which
took place in the Hicks case during oral argument before the United States Supreme Court:
QUESTION: The issue is whether - whether [Virginia] adopted a broader
interpretation under State law than Federal law would require.
[ANSWER]: That is correct. A - a State may well be able to adopt a broader
interpretation of standing than this Court requires, but it cannot adopt a narrower
interpretation. It cannot disregard this Court's direction that yougive overbreadth
standing according to the Federal constitutional standards. . . .
presented for resolution").
34 Willden, 768 P.2d at 455, 458-59.
35 276 Va. 443, 454, 666 S.E.2d 303, 308 (2008).
36 Id. at 455, 666 S.E.2d at 309.
37 Id.
JOHNSON —11
QUESTION: And if theywere correct about what our standingrules are, they would
have to follow those standing rules, wouldn't they? They could not apply a narrower
... basis for standing, could they?
[ANSWER]: That is absolutely correct, Your Honor. The State supreme court has
no discretion to disregard this Court's application ofthe FirstAmendment through
its overbreadth doctrine?*
The Supreme Court of Virginiafurther observed that the overbreadth doctrine is a matterof
substantive First Amendment law, and as such, it is "a constitutional exception to state and federal
rules of standing that would otherwise limit a party to an as applied challenge to a statute."39 That
court also discussedthe facts and proceduralposture of Hicks, and it concludedthat it was clear that
in Hicks the Supreme Court addressed the issue of First Amendment standing"only in the context
by which that issue was placed before the Court: whethera state's expansion of First Amendment
standing was subject to review by federal courts."40 Analyzing the passage in Hicks where the
Supreme Court stated "[w]hether Virginia's courts should have entertained this overbreadth
challengeis entirelya matter of state law," the Jaynes court found that "the term 'this' plainly limits
the standing issue to what was before the Court in that case: an expansion,not a restriction, of state
court standing."41 We agree.
Moreover, it is difficult to understand how the overbreadth doctrine could ever be applied
byanycourt to invalidate a state law in its entiretyif the doctrineis not itself a federal constitutional
38 Id. at 456-57, 666 S.E.2d at 310 (quoting Oral Arg. Tr., Virginia v. Hicks,No. 02-371, at
5 (Apr. 30, 2003)) (bracketed material and emphasis in Jaynes).
39 Mat 458, 666 S.E.2d at 310-11.
40 Id. at 457, 666 S.E.2d at 310 (emphasis in Jaynes).
41 Id.
JOHNSON — 12
doctrine that the state courts have to follow.42 This status of overbreadth as a substantive
constitutional doctrine is similarin thatrespectto Fourth Amendment expectation-of-privacy issues,
which can be characterized as involving "standing," but are more accurately viewed as part of
substantive Fourth Amendment law.43 No one would claim, for example, that a state court can
decline to entertain the Fourth Amendment claims ofan overnight guest on the ground that overnight
guests simply do not have standing in state court under state law.44
Judge Yeary's dissent attempts to draw a distinction between the substantive rule of
overbreadth and a procedural rule of overbreadth that accords liberalized standing. Heclaims that
hewould notchange thesubstantive rulebutwould merely restrict which litigants could successfully
bring a First Amendment overbreadth claim in state court. But we are not confronted with the
question of whether a claim confers standing sufficient to allow the individual to appear in court.
42 SeeDickerson v. UnitedStates,530 U.S. 428,438 (2000) (holding that "first and foremost
of the factors" supporting the conclusion that"Miranda is a constitutional decision" is that the case
applied the rule to "prosecutions arising in state courts"); NAACP v. Button, 371 U.S. 415,432-33
(1961) (recognizing the application of overbreadth doctrine to state laws and explaining that,
"[bjecause First Amendment freedoms need breathing space to survive, government mayregulate
in the area only with narrow specificity").
43 SeeRakasv.Illinois,439U.S. 128,139-40(1978)(citationsomitted) (reaffirminggeneral
standing principles but stating that "this Court's longhistory of insistence that Fourth Amendment
rights arepersonal in nature has already answered many of these traditional standing inquiries, and
we think that definition of those rights is more properly placed within the purview of substantive
Fourth Amendment law than within that of standing") (citations omitted); State v. Klima, 934
S.W.2d 109, 110 (Tex. Crim. App. 1996) (recognizing that "the application of Fourth Amendment
rights are personal in nature and are invariably intertwined with the concept of standing").
44 See Minnesotav. Olson, 495 U.S. 91, 96-97 (1990). See also Jaynes, 276 Va. at 458,666
S.E.2d at 311 (TheCommonwealth's view "is an untenable position because the rightto assert the
protection oftheFirstAmendment (by overbreadth orotherwise) cannomore berestricted bya state
rule of standing than the exclusionary rule applied to impermissible searches andseizures could be
limited by state evidence law.").
JOHNSON —13
This is not a civil lawsuit filed by a person seeking to invoke a court's jurisdiction on a First
Amendmentclaim.45 This case—a criminal prosecution—is the State'saction. The State has already
invoked the jurisdiction of the courts, with the flag-destruction statute being the basis for that
invocation. As a result, the trial court had authority to decide the case, and authority to review that
decision onappeal was conferred byChapter 44of the Code ofCriminal Procedure.46 Appellee has
simply defended against the State's action by substantivelychallenging the facial constitutionality
of the flag-destruction statute. The trial court agreed and dismissed the information, and it is the
State that now seeks the intervention of this Court to overturn the trial court's substantive legal
decision. If accepting the overbreadth doctrine as a matter of substantive federal constitutional law
means anything, it means, at the least, that a criminal defendant can defend himself in a criminal
prosecution by challenging the constitutionality of the statute defining the crime with which he is
charged. The dissent says that this violates the Separation of Powers clause of the Texas
45 Nor is the present case even a habeas action, which might at least arguably be said to
affirmatively invoke a court's jurisdiction, although it might also be characterized as a vehicle for
challenging the State's criminal action, especially when invoked at the pretrial stage. See Exparte
Rieck, 144 S.W.3d 510,515 (Tex. Crim. App. 2004) (discussing differing ways ofcharacterizing the
nature of habeas proceedings).
46 See Tex. Code Crim. Proc. arts. 44.01, 44.02. The Supreme Court has recognized that
the posture of the case before the court—how the action came before it and which party is
complaining—can affect the existence of standing. See Hicks, 539 U.S. at 120-21 ("Because it is
the Commonwealth of Virginia, not Hicks, that has invoked the authority of the federal courts by
petitioning for a writ of certiorari, our jurisdiction to review the First Amendment merits question
is clear .... The Commonwealth has suffered, as a consequence of the Virginia Supreme Court's
'final judgment altering tangible legal rights,' ... an actual injury in fact—inability to prosecute
Hicks for trespass—that is sufficiently 'distinct and palpable' to confer standing under Article HI.
... We accordingly proceed to that merits inquiry, leaving for another day the question whether our
ordinary rule that a litigant may not rest a claim to relief on the legal rights or interests of third
parties . . . would exclude a case such as this from initiation in federal court.") (emphasis added).
JOHNSON —14
Constitution,47 but "[t]he power to determine the validity of an Act of the legislature rests with the
Courts."48
The dissent also contends that allowing an overbreadth claim by a person who cannot show
that the statute is unconstitutional as to him invites us to assume the power to issue advisory opinions
and that we are without power to do that. The United States Supreme Court, which recognizes
overbreadth claims, is also—under Article HI of the United States Constitution—without power to
render advisory opinions.49 By holding that overbreadth is an exception to a prudential rule of
standing, ratherthantojurisdictional standing underArticle HI,50 the Supreme Courthaseffectively
heldthat the overbreadth doctrine does not giverise to advisory opinions.51 Evenif we coulddepart
from Supreme Court precedent in deciding whether to recognize overbreadth claims, we do not see
any reason to construe "advisory opinions" to mean something different under state law than it does
in the Supreme Court's jurisprudence. There is nothing advisory or hypothetical about the
consequence of a criminal defendant prevailing on an overbreadth challenge to the statute that
47 See Tex. Const, art. H, § 1.
48 ExparteHalsted, 147 Tex. Crim. 453, 457, 182 S.W.2d 479, 482 (1944).
49 See Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 516 (2007) (No
justiciable controversy exists under Article ITI of the United States Constitution when the parties ask
for an advisory opinion.).
50
See supra n. 12.
51 See also Federal Election Commission v. Akins, 524 U.S. 11, 24 (1998) (indicating the
injury-in-fact requirement of Article HIprevents advisory opinions); Savage v. Gee, 665 F.3d 732,
740 (6th Cir. 2012) (holding that overbreadth claimant must still show that enforcement of the
challenged statute againsthim is actual or imminentand quotingPrime Media v. City ofBrentwood,
485 F.3d 343,350 (6th Cir. 2007): "Because overbreadth creates an exception only to the prudential
standing inquiry, the Supreme Court has made clear that the injury in fact requirement still applies
to overbreadth claims under the First Amendment.").
JOHNSON — 15
defines the charged offense—the case against him is dismissed.
B. The State's Arguments
The State contends that appellee has failed to meet his burden to show that the flag-
destruction statute is substantially overbroad by its text and has a substantial number of
unconstitutional applications in actual fact. With respect to the text, the State contends that the
statuteis a legitimate content-neutral law because it does not expressly restrict speech and because
it punishes any kind of damage or destruction to a United States or Texas flag, regardless of the
actor's motive. The State further contends that the amount of protected speech covered by § 42.11
is "minimal when comparedto the non-expressive conduct lawfullyprohibited" and that anyrisk of
a chilling effect is "dwarfed bythe number of lawful applications" of the statute.52
With respectto whether the statutehas a substantialnumber of unconstitutional applications
in actual fact, the State contends that appelleehas failed to "provide examples of actual people who
have been deterred from engaging in protected speech or conduct." The State further contends that
the court of appealsconcededthat the absenceof evidenceof prosecutionunder this statute arguably
shows a pattern of non-enforcement.53 The Stateargues that the statute produces no chilling effect
because "the average citizen generally understands that burning a flag as part of expressive speech
or conduct is protected by the United States Constitution."54
The State also contends that appellee's conduct was not protected by the First Amendment
52 At oral argument, the State claimed that "almost all" of the conduct the statute covers is
outside the First Amendment's protection.
53
See Johnson, 425 S.W.3d at 553.
54 State's brief quoting id. at 552 (quoting Roe v. Milligan, A19 F. Supp. 2d 995, 1007 (S.D.
Iowa 2007)).
JOHNSON —16
because it was not expressive:
Appellee's conductinstead constituted an act of criminalmischiefwith no intent to
conveyany particularized message. Indeed, according to appellee, he did not even
expect the flag to come off its staff and into his hand when he jumped and reached
forit. Appellee attempted to explain his conduct byclaiming hewasmad[at] a local
merchant. However, in no way did his actions relay that he was angry with a local
merchant. In fact, the flag that he threw onto the highway was in front of a different
store than the one appellee claimed to be angry with. Further, there was no element
of speech in his conduct. The very way appellee committed his crime was random
in nature.55
During oral argument, the State suggested that the flag-destruction statute was "reallyjust
criminal mischiefin relation to the flag." The State argued that a punishment provision with respect
to conduct directed against the flag—similar to current provisions that enhance punishment for
damage to churches and public monuments—could have been included in the criminal-mischief
statute.56 If the flag-destruction statutesweeps too broadlyby punishing someone whodamageshis
ownflag, the Statefurther argued, the statutecouldbe narrowly construedto applyonlyto situations
in which the conduct would actually constitute criminal mischief, i.e. damage to someone else's
property.57
C. The Statute
1. The Text
"The first step in overbreadth analysis is to construe the challenged statute; it is impossible
55 Citations omitted, some capitalization changed.
56 See Tex. Penal Code § 28.03(f) (state-jail felony punishment if criminal mischief
involves "placeofworship orhuman burial, apublic monument, or acommunity center thatprovides
medical, social, or educational programs").
57 See id. § 28.03.
 JOHNSON —17
to determine whether a statute reaches too farwithout firstknowing whatthe statute covers."58 The
Texas flag-destruction statute provides:
(a) A person commits an offense if the person intentionally or knowingly damages,
defaces, mutilates, or burns the flag of the United States or the State of Texas.
(b) In this section, "flag" means an emblem, banner, or other standard or a copy of
an emblem, standard, or banner that is an official or commonly recognized depiction
of the flag of the United States or of this state and is capable of being flown from a
staff of any character or size. The term does not include a representation of a flag on
a written or printed document, a periodical, stationery, a painting or photograph, or
an article of clothing or jewelry.
(c) It is an exception to the application of this section that the act that would
otherwise constitute an offense is done in conformity with statutes of the United
States or of this state relating to the proper disposal of damaged flags.59
Unlike its predecessor,60 the current statute narrowly defines what is meant by a "flag," and it
excludes certain depictions of a flag from its reach. For example, the current statute avoids past
controversies regardingthe representation of a flagon clothingby explicitlyprovidingthat suchdoes
not count as a flag.61 The current statute also differs from its predecessor in that it does not require
that the actor be aware of the likely impact of his conduct on others.62
58
Williams, 553 U.S. at 293.
59 Tex. Penal Code § 42.1 l(a)-(c). The statute also provides that the offense is a Class A
misdemeanor. Id. § 42.11(d).
60 See Tex. Penal Code § 42.09(a)(3) (West 1988) ("A person commits an offense if he
intentionally or knowingly desecrates ... a state or national flag.")
61 See Smith v. Goguen, 415 U.S. 566 (1974) (United States flag sewn to the seat of
defendant's trousers); Delorme v. State, 488 S.W.2d 808 (Tex. Crim. App. 1973) (same).
62 See Tex. Penal Code § 42.09(b) (West 1988) ("For purposes of this section, 'desecrate'
means deface, damage,or otherwise physicallymistreat in a way that the actorknows willseriously
offend one or more persons likely to observe or discover his action") (emphasis added).
JOHNSON — 18
The current Texas statute also circumscribes the type of conduct toward a flag that is
proscribed. The statute prohibits only physical mistreatment that alters or damages a flag. The
statute does not apply to words spoken that are critical ofthe United States or Texas flag,63 nor does
the statute apply to physical acts that do not alter or damage a flag.64
2. Narrowing Construction?
The federal constitution affords the states broad authority to construe a statute narrowly to
avoid a constitutional violation.65 At the outset, we will assume that the flag-destruction statute
applies only to acts that physically damage a flag.66
The State argues that the statute may be construed to apply only to conduct that would
otherwise constitute criminal mischief, that is, conduct that damages someone else's flag (without
consent).67 Wedecline to impose sucha narrowing construction because nothing in the language of
the statute supports it. Onthe contrary, thetextof thestatute is unambiguously broadin thisrespect,
applying to the conduct of intentionally or knowingly damaging any United States or Texas flag,
regardless of who owns the flag and whetherthat owner has consented to the conduct.
63 See Streetv.New York, 394 U.S. 576 (1969) (holdingunconstitutional, as applied, a statute
that punished words that cast contempt on the flag of the United States).
64 See People v. Meyers, 23 111. App. 3d 1044, 1045, 321 N.E.2d 142, 143 (5th Dist. 1974)
(defendant seen lying on American flag in a public park).
65 Osborne v. Ohio, 495 U.S. 103, 115 n.12, 119-21 (1990); Thompson, 442 S.W.3dat339.
66 Although the current statute makes it an offense to, among other things, "deface" a flag,
we will assume that the term "deface" can be narrowly construed to not apply to temporary
attachments to a flag. See Spence v. Washington, 418 U.S. 405 (1974) (involving a peace symbol
made of removable black tape attached to a United States flag).
67
See Tex. Penal Code § 28.03(a).
JOHNSON —19
Although a Texas court has a duty to employ, if possible, a reasonable narrowing
construction to avoid a constitutional violation, such a construction should be employed only if the
statute is readilysusceptible to one.68 "We may not rewrite a statute that is not readily subjectto a
narrowing construction because such a rewriting constitutes a serious invasion of the legislative
domain and would sharply diminish the legislature's incentive to draft a narrowly tailored statute in
the first place."69 A law is not readily subject to a narrowing construction if its meaning is
unambiguous.70 We should be wary of reading into a statute a narrow meaningnot supportedby its
language because such a construction may later be rejected as untenable.71 Moreover, when the
statute is unambiguous, the public at large will not necessarily be on notice that the law means
something other than exactly what it says. Instead, we should act in accordance with our usual rules
of statutory construction and construe a statute in accordance with unambiguous language absent a
finding of absurdresults.72 Consequently, we construethe flag-destruction statutein accordance with
the text's unambiguously broad command against intentionally or knowingly damaging any United
68 Thompson, 442 S.W.3d at 339; Long v. State, 931 S.W.2d 285, 295 (Tex. Crim. App.
1996). See also Stevens, 559 U.S. at 481.
69 Thompson, 442 S.W.3d at 339. See also Long, 931 S.W.2d at 295; Stevens, 559 U.S. at
481.
70 Thompson, 442 S.W.3d at 339; Olvera v. State, 806 S.W.2d 546, 553 (Tex. Crim. App.
1991).
71 See Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014) (disavowing statement in
Scott, made in context of First Amendment challenge, that statutory term "repeated" could be
narrowly construed to apply only to activity occurring in close enough proximity to properly be
termed a single episode).
72 Thompson, 442 S.W.3d at 339-40. See also Boykin v. State, 818 S.W.2d 782, 785 (Tex.
Crim. App. 1991).
JOHNSON — 20
States or Texas flag.73
D. Sweep of the Statute under its Text
1. Unconstitutional Applications
The Supreme Courthasrecognized thattheconduct of intentionally orknowingly damaging
a United Statesflagis not inherently expressive.74 As a result, a statutethat proscribes suchconduct
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.
It is clear that the Texas flag-destruction statuteviolates the First Amendmentwhen applied
to some circumstances. In Texas v. Johnson, the Supreme Court found that the former flag-
desecration statute was applied in violation of the First Amendment when the State punished a
person who burned aUnited States flag aspart ofaprotest against the Reagan Administration.75 The
flag-desecration statute made it an offense to "intentionally or knowingly desecrate[] ... a state or
national flag," with "desecrate" being defined to mean to "deface, damage, or otherwise physically
73 See also Snider v. City of Cape Girardeau, 752 F.3d 1149, 1158-59 (8th Cir. 2014)
(decliningto limit Missouri flag-desecration statuteto non-expressiveconduct given the absence of
languageto suggest such a limitation);State v. Janssen, 213 Wis. 2d 471,480-82,570 N.W.2d 746,
751 (Ct.App. \991),aff'd, 219 Wis. 2d 362, 580N.W.2d260 (1998) (declining to limitWisconsin
statuteto non-expressiveconduct in part becausethe statute's "plain readingprohibitsall intentional
and public acts of defiling, mutilating, and casting contempt on the flag; it does not distinguish
non-expressive conduct").
74 Johnson, 491 U.S. at 403 n.3 ("A tired person might, for example, drag a flag through the
mud, knowing that this conduct is likely to offend others, and yet have no thought of expressingany
idea."), 405 ("We have not automaticallyconcluded,however, that any action taken with respect to
our flagis expressive. Instead, in characterizing suchaction for FirstAmendment purposes, wehave
considered the context in which it occurred."); Thompson, 442 S.W.3d at 334.
75 491 U.S. at 399, 418-20.
JOHNSON — 21
mistreat in a way that the actor knows will seriously offend one or more persons likely to observe
or discover his action."76 The Court concluded that whether the defendant's treatment of the flag
violated Texas law depended on"thelikely communicative impact ofhis expressive conduct."77 The
Court further concluded that such a restriction on expression was content based.78
The Court then considered the State's asserted interest in "preserving the flag as a symbol
of nationhood and national unity."79 This interest was found to be insufficient to justify a content-
based restriction because "[i]fthere is a bedrock principle underlying the First Amendment, it is that
the government may not prohibit the expression of an idea simply because society finds the idea
itself offensive or disagreeable" and the Court has "not recognized an exception to this principle
even where our flag has been involved."80 The State argued that, even if the flag's symbolic role
does not allow the State to prohibit words or some expressive conduct critical of the flag, it does
allow the State "to forbid the outright destruction of the flag."81 The Courtrejected this distinction,
sayingthat it "is of no moment where the nonverbal conduct is expressive, as it is here, and where
the regulation of that conduct is related to expression, as it is here."82 The State's "focus on the
precise nature of the defendant's expression, "missefd] the point" of the Court's prior decisions:
76 See id. at 400 n.l (quoting Tex. Penal Code § 42.09 (1989)).
77 Mat411.
78 Id. at4
.
79 Mat413.
80 Id. at 414.
81 Mat 416.
82 Id.
JOHNSON — 22
"their enduring lesson, that the government may not prohibit expression simply because it disagrees
with its message, isnot dependent onthe particular mode inwhich one chooses toexpress anidea."83
"If we were to hold that a State may forbid flag burning wherever it is likely to endanger the flag's
symbolic role," the Court continued, "but allow it whereverburning a flag promotes that role" then
"[w]e would be permitting a State to 'prescribe what shall be orthodox'" in violation of the First
Amendment.84
Although the current flag-destruction statute differs somewhat from the flag-desecration
statute considered in Texas v. Johnson, it is similar to the statute considered in United States v.
Eichman. In Eichman, the federal flag-protection statute made it a crime if a person "knowingly
mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any
flag of the United States" unless the conduct consists of "the disposal of a flag when it has become
worn or soiled."85 The Government relied heavily on the fact that, unlike the statute in Texas v.
Johnson, the federal statute did not require the actor to have any intent or knowledge with respect
to whether his actions wouldseriouslyoffend onlookers.86 The Supreme Court was not persuaded
that this fact made any difference: "Although the Flag Protection Act contains no explicit content-
based limitation on the scope ofthe prohibited conduct, it is nevertheless clear that the Government's
asserted interest is related to the suppression of free expression."87 "The Government's interestin
83 Id.
84 Id. at 416-17.
85 496 U.S. at 314.
86 Mat 315.
87 Id. (internal quotation marks omitted)
JOHNSON — 23
protecting the physical integrity of a privately owned flag," the Court explained, "rests upon a
perceived need to preserve the flag's status as asymbol ofour Nation and certain national ideals."88
Eachof the actsthat wereprohibited bythe statute, withthe possibleexception of "burns," connoted
a disrespectful treatment of the flag, and the explicit exception for the disposal of soiled flags
protected "certain acts traditionally associated with patriotic respect for the flag."89 Consequently,
the statute was an impermissible content-based restriction of speech whenapplied to a personwho
used the mistreatment of a flag as a method of expressing an idea.90
Though the flag-destruction statute before us is not limited solely to expressive conduct,
Eichman teaches that, when this type of statute does apply to expressive conduct, it is an
impermissible content-based restriction. As in Eichman, the present Texas statute contains an
exemption for conduct associated with the proper disposal of a flag. So, as in Eichman, the present
statute distinguishes between disrespectful and respectful conduct that damages aflag.91 And while
the Texas statutedoesnot requirethat the disrespectful conductbe expressive, suchconductis very
likely to be expressive in a given case because of the symbolism associated with flags. Flags are
"[p]regnant with expressive content," and the United States flag "readily signifies this Nation."92
88 Id. at 315-16.
89 Id. at 317.
90 Id. at 317-19.
91 Judge Yeary's dissenting opinion says that the legislature enacted the flag-destruction
statute in its current form after Texas v. Johnson in "an attempt to cure potential constitutional
problems with that law." But the Supreme Court issued its opinion in Eichman after the current
statute was enacted, and it is Eichman, more than any other case, that guides our decision today.
92 Johnson, 49\ U.S. at 405.
JOHNSON — 24
The statutory language clearly applies to those who damage a flag of the United States or Texas as
a means of communicating a message (e.g. of protest against the United States or Texas). The only
ascertainable purpose of a law as broadly worded as the present one—which applies even when the
actor damages his own flag—is to protect the integrity of the United States flag or Texas flag as a
symbol.93
2. Expressive Applications Predominate
The State contends that the number of lawful applications of the flag-destruction statute
dwarfs its unlawful applications, but, aside from the present case, the State does not attempt to
describe the lawful applications to which the statute theoretically applies. We are aware oftwo types
of situations suggested by the caselaw that might involve lawful applications to conduct that is non-
expressive,but the nature of both situations suggeststhat prosecutionsfor them will be uncommon,
which in turn suggests that the legitimate reach of the statute is narrow.
The firstis conducttowarda flagthat is hidden or secretive.94 Themorehiddenthe conduct,
arguably thelessexpressive it is likelyto be,95 but as conduct becomes more hidden, it alsobecomes
93 See Eichman, 496 U.S. at 315-16. The natural symbolism of the flags, the discrimination
between respectful and disrespectful treatment of the flags, and the fact that the obvious legislative
purpose is one that is directed at expression distinguishes the statute at issue here from the
disorderly-conduct provisions cited in Judge Yeary's dissenting opinion. See above discussion of
Eichman. As will be seen below, the offense of flag destruction also differs from these offenses
because prosecutions for flag destruction have typically been directed at expressive activity.
94 See Carpenter v. State, 597 So. 2d 757, 758 (Ala. Crim. App. 1992) (soiled flag wadded
up in coat pocket).
95 But see Stanley v. Georgia, 394 U.S. 557 (1969) (First Amendment protects viewing
obscenity in the privacy of the home).
JOHNSON — 25
less likely to be discovered, andthus less likely to be prosecuted.96 If the conduct toward a flag is
completely hidden, it will likelybe only by unusual happenstance that a prosecuting authority will
be alerted to the situation.97
The second type of situation involving potentially non-expressive conduct involves the
personwho acts disrespectfully towarda flagwitha casualor cavalierattitudebut withoutintending
to communicate a message. The hypothetical described by the Supreme Court was that of "a tired
person" whomight"draga flagthrough themud, knowing thathisconduct is likely to offend others,
and yethaveno thought of expressing any idea."98 The Courtoffered this hypothetical merely as a
"possibility"that mightbe prosecuted underthe former Texas statutethat was analyzed in Texas v.
Johnson." We agree with other courts that this scenario is an unlikely one.100
Most conduct that falls within the provisions of the statute and that would come to the
96 See Wayte v. United States, 470 U.S. 598,612-14 (1985) (discussing passive-enforcement
policy of prosecuting those who report their refusal to register for selective service or who are
reported and recognizing that Government can more easily prosecute those who openly and
obviously violate the law).
97 See Carpenter, 597 So. 2d at 758 (soiled flag wadded up in coat pocket discovered after
defendant was arrested for littering and desecrating a Post Office).
98 Johnson, 491 U.S. at 403 n.3.
99 Id. The Court declined to address the constitutionality of such a prosecution because it
could decide the case before it on narrower grounds. Id.
100 Snider, 752 F.3d at 1158 (calling it an "unlikely hypothetical" and holding the Missouri
flag-desecration statuteunconstitutionallyoverbroad);Commonwealth v. Bricker, 542 Pa. 234,246,
666 A.2d 257, 263 (1995) (citing footnote 3 of Johnson and stating, "We hold open the possibility
that there are narrow categories in which the flag is used in a non-expressive manner and, in this
regard, the United States Supreme Court agrees.").
JOHNSON — 26
attention of the authorities wouldconstitute protected expression.101 Theassessment of Wisconsin's
highcourtregarding its own flag-desecration statute seems to apply equally to the statute before us:
"Although there maybe constitutionally permissible applications^] ... the number of instances in
which the law could be applied to unprotected behavior is small in comparison to the number of
instances in which it may be applied to expression protected bythe First Amendment."102
3. Criminal MischiefNot Relevant
The State argues that the flag-destruction statute essentially penalizes criminal mischiefin
relationto the flag, but we disagree. Criminal mischief, as defined in Texas, occurs when a person
intentionally orknowingly damages, destroys, tampers with, ormakes markings onproperty "without
the effective consent of the owner."103 As we have already explained, the flag-destruction statute
applies even when someone damages his own flag.104
101 Judge Yeary's dissenting opinion contends that this conclusion is not a proper
consideration in an overbreadth analysis because the doctrine "as it is currently enforced by the
Supreme Court, requires an examination of the statute itself, and not merely the potential or
hypothetical First Amendment uses" of the conduct proscribed by the statute. But, as the dissent
seems to concede, an examination of the statute and of the possible uses of the conduct proscribed
bythestatute arenotmutually exclusive inquiries. Asweexplained earlier, theoverbreadth doctrine
contemplates a showing, from the text and from actual fact, "that a substantial numberof instances
exist in which the Law cannot be applied constitutionally." New York State Club Ass 'n, 487 U.S.
at 14. Examining the probable First Amendment uses of conduct proscribed by the statute is a
necessary step in answering such an inquiry.
102 State v. Janssen, 219 Wis. 2d 362, 387, 580 N.W.2d 260, 270 (1998). Although the
Wisconsin statute was broader than the current Texas statute, the Supreme Court ofWisconsin found
it to be unconstitutionally overbroad evenwhennarrowed to reachonlyconductthat defiledthe flag
through purely physical acts. Id. at 382, 580 N.W.2d at 268.
103
Tex. Penal Code § 28.03(a).
104 It is indisputably true that a person who damages someone else's flag without consent
could validly be punished undera general criminal mischiefstatute such as Penal Code § 28.03. See
Johnson, 491 U.S. at 412 n.8 ("[N]othing in our opinion should be taken to suggest that one is free
JOHNSON — 27
Furthermore, when considering the possible legitimate applications of the flag-destruction
statute, there are two reasons that we should not count cases that amount to criminal mischief: the
flag-destruction statutedoesnot requirethe Stateto showthattheperson's conducttowarda flagwas
an act of criminal mischief,105 and nothing prevents the State from prosecuting a person under both
to steal a flag so long as one later uses it to communicatean idea."). Some of the Supreme Court's
cases arguably support a conclusion that the State could validlyenhance punishment for someone
who commits criminal mischief on the basis that the property damaged was a United States flag
because damage to such properlyis an especially egregious form of criminal mischief, involving a
greaterharm to the flag's owner than its monetary value wouldindicate. See Virginia v. Black, 538
U.S. 343, 363 (2003) ("The First Amendment permits Virginia to outlaw cross burnings done with
the intent to intimidate because burning a cross is a particularly virulent form of intimidation.
Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of
intimidating messages in light of cross burning's long and pernicious history as a signal of
impending violence."); Wisconsin v. Mitchell, 508U.S. 476,487-88 (1993)(Statute doesnot violate
First Amendment when it "singles out for enhancement bias-inspired [assaultive] conduct because
this conduct is thought to inflict greater individual and societal harm.").
In any event, the Supreme Court has explicitly recognized the government's power to protect
publicly owned flags. Eichman, 496 U.S. at 316 n.5 ("Today's decision does not affect the extent
to which the Government's interest in protecting publicly owned flags mightjustify special measures
on their behalf."); Spence, 418 U.S. at 409 ("We have no doubt that the State or National
Governments constitutionally may forbid anyone from mishandling in any manner a flag that is
public property."). It is primarily for this reason that we find Judge Meyers's "mockingbird" analogy
unpersuasive. A mockingbird (like a bald eagle) is a wild animal that belongs to the public. It is a
finite natural resource, and a government may choose to protect it. See State v. Bartee, 894 S.W.2d
34,41 (Tex. App.-San Antonio 1994, no pet.) (unanimous panel op. by John F. Onion, Jr.) ("History
reveals a long recognition of common ownership in game and wild animals and its developing
subjectivity to governmental authority."). To the extent that a mockingbird or bald eagle can be
analogized to a flag at all, they would be analogous to a public flag. A statute that punished the
destruction of a depiction of a mockingbird or bald eagle might, however, raise First Amendment
concerns.
105 See Johnson, 491 U.S. at 412 n.8 ("There was no evidence that Johnson himself stole the
flaghe burned... nor did the prosecution or the arguments in supportof it depend on the theorythat
the flag was stolen . . . . We also emphasize that Johnson was prosecuted only for flag
desecration—not for trespass, disorderly conduct, or arson.").
JOHNSON — 28
the flag-destruction and criminal-mischief statutes.106 The criminal-mischief aspect of an actor's
conduct is a red herring in a constitutional analysis of the flag-destruction statute: by allowing for
a separate prosecution and penalty in addition to that authorized for criminal mischief, the flag-
destruction statute enables the State to separately penalize the actor's expression.107
However, even if we assumed that the flag-destruction statute could legitimatelybe applied
106 See Cullen v. State, 832 S.W.2d 788, 791-92 (Tex. App.-Austin 1992, pet. ref d) (in
prosecution for the poisoning of the historic Treaty Oak in Austin, rejecting claim that the
desecration-of-venerated-object and criminal-mischief statutes must be read in pari materia to
require prosecution onlyunder the former). Cullen addressed the predecessor to the current flag-
destructionstatute,but its reasoning is equallyapplicableto the present statute. The flag-destruction
and criminal-mischiefoffenses are not the same under the Blockburger same-elements test, and other
factors do not suggest that the legislature intended the offenses proscribed by those statutes to be
treated as the same. See id. at 792 ("These two statutes are contained in different legislative acts,
address differing situations, require different elements of proof, and serve different objectives. We
believethe legislature intendedto definetwo separate offenses with different elements anddifferent
levels of punishment. It follows that section42.09 is not a special subset of the general offense of
criminal mischief."); Blockburger v. United States, 284 U.S. 299, 304 (1932) ("[W]here the same
act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied
to determine whether there are two offenses or only one, is whether each provision requires proof
of a fact which the other does not."); Exparte Ervin, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999)
("The Blockburger test is a useful tool for ascertaining legislative intent, but it is not the only tool.
Other . . . considerations [are] relevant to determining whether the Legislature intended multiple
punishments ....").
We further note that the predecessor statute at issue in Cullen also penalized the desecration
of public monuments and places of worship or burial. See Cullen, 832 S.W.2d at 792; Tex. Penal
Code § 42.09 (West 1988). Those portions ofthe statute were later moved to the criminal mischief
statute to enhance the level of the offense. See Tex. Penal Code § 28.03(f) (current). The
legislature has not, however, codified a criminal-mischief enhancement based on destruction of the
flag. See Tex. Penal Code § 28.03, passim.
107 SeeR.A. V. v. City ofSt. Paul, 505 U.S. 377,385 (1992) ("The proposition that a particular
instance of speech can be proscribable on the basis of one feature (e. g., obscenity) but not on the
basis ofanother(e. g., oppositionto the citygovernment) is commonplaceand has found application
in manycontexts. We have long held, for example,that nonverbalexpressive activitycan be banned
because of the action it entails, but not because of the ideas it expresses—so that burning a flag in
violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in
violation of an ordinance against dishonoring the flag is not.").
JOHNSON — 29
to conduct that amounted to criminal mischief (whether expressive or not), the statute would still
cover a wide swath of expressive conduct that does not amount to criminal mischief. Even under
that assumption, then, the unconstitutional applications of the statute would, by its text, be
substantial in relation to its plainly legitimate sweep.
E. Sweep of the Statute in Actual Fact
As for whether the application of the flag-destruction statute to expressive activity is
significant in actual fact, we need look only to the numerous prosecutions of flag desecration
involving physical alteration or damage to a flag that are documented byjudicial decisions.108 By
108 See Snider, 752 F.3d at 1154-55 (plaintiff attempted to set fire to flag in his front yard,
then shredded it and threw it into the street; officer conceded he violated plaintiff s First Amendment
rights); Janssen, 219 Wis. 2d at 367-68, 580 N.W.2d at 262 (defecating on a flag and leaving it on
the stepsto a golf courseclubhouse); Eichman, 496U.S. at 312 (settingfire to several United States
flags on the stepsof theUnited StatesCapitol whileprotesting variousaspects of the Government's
domestic and foreign policy); United States v. Cary, 897 F.2d 917, 919-21 (8th Cir.), vacated, 498
U.S. 916 (1990) (at protest of the decision of the United States Government to send 3,200 troops to
Honduras, an unidentified woman came up to defendant, handed him a flag, and told him to light it,
which he did); United States v. Haggerty, 731 F. Supp. 415, 416 (W.D. Wash.), aff'd sub nom.,
Eichman, 496 U.S. 310 (1990) (flag burned at a political demonstration in front of a post office to
protest the Flag Protection Act of 1989); Johnson, 491 U.S. at 399 (burning flag as part of protest
against Reagan administration); Bowles v. Jones, 758 F.2d 1479-80 (11th Cir. 1985) (burning flag
at Communist rally as a protest againstU.S. imperialism); Monroe v. State Court ofFulton County,
739 F.2d 568, 570-71 (11th Cir. 1984) (flag burned at protest against U.S. involvement in Iranian
affairs); People v. Sutherland, 9 111. App. 3d 824, 826, 292 N.E.2d 746, 747 (1973) (flag burned to
protest against the invasion of Cambodia and the death of the four students at Kent State); State v.
Farrell, 209 N.W.2d 103, 104 (Iowa 1973) (flag burned at protest of the Indo-China War and the
presenceofR.O.T.C.on the campus); United States v. Crosson, 462 F.2d 96,98 (9th Cir. 1972)(flag
burned by war protestors in R.O.T.C. building); Joyce v. United States, 454 F.2d 971, 977-80 (D.C.
Cir. 1971) (flag torn by person in group of protestors at Inauguration Day Parade); Deeds v. State,
474 S.W.2d 718, 719-20 (Tex. Crim. App. 1971) (flag burned at crowded public park in Dallas);
People v. Burton, 27 N.Y.2d 198, 201, 265 N.E.2d 66, 66 (Ct. App. 1970) (After affixing a flagto
a vacantbuildingand settingit on fire, the defendant said, "I am goingto burn Johnson, Humphrey
and Wallacejust as I am going to burn this flag."); State v. Turner, 78 Wash. 2d 276, 277-78, 283-
84; 474 p.2d 91, 93,96 (1970) (flag burned at gatheringby organizationhaving to do with the social
and economic rehabilitation of a large economically depressed area of Seattle); United States v.
Ferguson, 302 F. Supp. 1111,1112 (N.D. Cal. 1969) (flag burned at rally on the front steps of a
JOHNSON — 30
contrast, prosecutions involving evenarguably non-expressive conduct appear from the cases to be
uncommon as a historical matter.109 Even prosecutions that involve expressive activity that also
constitutes criminal mischief appear to be a small proportion of the cases.110 In fact, we are not
aware of a single case since Eichman thathasresulted in a final conviction under a flag destruction
statute. Suchprosecutions havebeenterminated inthedefendant's favor because thestatute violated
the constitution in one way or another111 or, in one case, becausethe court declined to address the
constitutionality of the statute after finding the evidence insufficient to support the conviction.112
F. Pattern of Non-Enforcement
We turn now to the State's contention that the Texas flag-destruction statute will not be
United States District Courthouse). See also State v. Jimenez, 828 S.W.2d 455 (Tex. App.-El Paso
1992) (notsetting outthealleged conduct butruling Texas flag-destruction statute unconstitutional).
109 See Commonwealth v. Forrey, 108A.3d 895, 897 (Pa. Super. 2015) (troopersdiscovered
large debris trail—which included a United States flag—extending from defendant's truck to a
wooded area,flag-desecration chargedismissed pretrial); Bricker, 542 Pa. at 237-38,244,666 A.2d
at 259, 262 (dirty and wrinkled flag being used at entrance to home as artistic decoration, holding
statuteunconstitutional as appliedbecause artistic expression is protected bytheFirstAmendment);
Carpenter, 597 So. 2d at 758 (soiled flag wadded up in pocket, acquittal on appeal because
desecration was not in public); Meyers, 23 111. App. 3d at 1045,321 N.E.2d at 143 (person lying on
flag in public park,acquittal on appeal because he did not "trample" the flag); Cincinnati v. Bunch,
32 Ohio App. 2d 161, 161-62, 288 N.E.2d 854, 855 (1971) (defendant "spread the flag out on the
ground andplaced his personal property on topof it," conviction for defiling the flag upheld). The
last two cases would not appear to be prosecutable under the current Texas statute, and it is not
entirely clear whether the first three cases could be.
110 See Janssen, 219 Wis. 2d at 367, 580 N.W.2d at 262 (flag stolen from a golf course);
Haggerty, 731 F. Supp. at 416 (burned flag belonging to the United Sates Postal Service).
111 See supra nn.108-10; infra n.l 19. The State cites Milligan, a federal district court
opinion, which found no FirstAmendment violation, but the opinion held thatthe statute was void
for vagueness in violation of the Fourteenth Amendment. 479 F. Supp. 2d at 1008-14.
112 Carpenter, 597 So. 2d at 758.
JOHNSON — 31
unconstitutionally applied in a significant number of instances because there is currently a pattern
ofnon-enforcement. Essentially, the State's argument is that the Supreme Court's opinions in Texas
v. Johnson and United States v. Eichman have deterred and will continue to deter prosecutors from
bringing flag-destruction prosecutionsthat would violatethe First Amendment. Concomitantly, the
State contends, these cases have caused the average citizen to understand that the United States
Constitutionprotects the right to burn the United States flag to express an idea, so the averagecitizen
willnotfeel constrained by thestatute from engaging in such conduct."3 It is no doubt truethatthe
Supreme Court's decisions in Johnson and Eichman have deterred prosecutions for flag
desecration114 and that those decisions have raised awareness among members ofthe general public
that certain disrespectful conduct toward the United States flag is protected by the United States
Constitution. But we are not persuaded that the deterrent effect and popular understanding of
Supreme Court decisions are valid factors in determining whether a statute is unconstitutionally
overbroad.
The State's argument involves a sort of bootstrapping. In effect, the State is arguing that
113 See Milligan, 479 F. Supp. 2d at 1007 (contending that "[i]t is reasonable to believe that
the average citizen generally understands that burning a flag as part of expressive speech or conduct
is protectedby the United States Constitution" and such generalknowledge "would be sufficientto
dispel any possible chilling effect").
114 See Winsness v. Yocom, 433 F.3d 727, 736 (10th Cir. 2006) ("In this case, Mr. Blaylock
has foresworn any intention to bring criminal charges against indivdiuals who alter the flag for
expressive purposes. His superior, Mr. Yocom, has gone further, categorically announcingthat his
office will bring no prosecutions under the statute."); Lawson v. Hill, 368 F.3d 955,956-57 (7th Cir.
2004) ("At some point [the prosecutor] learned about the demonstrations and told both the police
chief of Goshen, and the county's sheriff, not to investigate whether the students had violated the
flag-desecration statute. We do not know when anyone was last prosecuted under the statute. We
know only that [the prosecutor] has never prosecuted anyone under it and is unaware of any
prosecutions in other counties.").
JOHNSON — 32
certain applications ofthe flag-destruction statute areso obviously unconstitutional thatprosecutors
will steer clear of them, and because of that, the actual unconstitutional applications of the statute
will not be substantial in relation to the statute's legitimate sweep. The State also suggests that there
willbenochilling effect from theseunconstitutional applications because thepublic understands that
the courts will not enforce them. The State's argument is somewhat like an argument advanced in
a capital murder appeal a decade ago. Thedefense argued that the court should find the evidence
to be insufficientto show future dangerousness because the defendant was so obviouslydangerous
that the prison authorities would place him in lockdown to prevent him from hurting anyone.115
Although we found that defendant's argument to be "ingenious," we rejected it because "it would
stand the capital punishment scheme on its head, giving relief to the most dangerous offenders."116
Likewise, the State's argument would seem to stand First Amendment jurisprudence on its head,
upholding a statute on the basis that its unconstitutional applications are so glaringly obvious that
prosecutors will avoid them and speech will not be chilled by them.
Moreover, the Supreme Court has clearly stated that it will not uphold a statute "merely
because theGovernment promised touseit responsibly."117 "TheFirstAmendment protects against
the Government; it does not leaveus at the mercy of noblesse oblige."u% And so long as a statute
remains on the books, the threat of "irresponsible" use remains, because a prosecutor or police
officer may be insufficiently instructed on the issue, because the authorities (wrongly) perceive the
115 Masterson v. State, 155 S.W.3d 167, 172-74 (Tex. Crim. App. 2005).
116 Id. at 174.
117 Steve/w,559U.S.at481.
118 Id.
JOHNSON — 33
conduct to fall outside constitutional protection, or because of other reasons. The caselaw contains
post-Eichman examples of such occurrences with respect to flag-desecration statutes."9 By
depending ontheSupreme Court's "as-applied"jurisprudence to reduce the overbreadth of a statute,
the State shifts to a significantdegree the determination of constitutional questions from the courts
to the prosecutors, the police, and the public. But we should not expect persons in those latter
positions to be the primary interpreters of the First Amendment:
Arguably, people are always "on notice" that constitutionally protected conduct is
exempt from prosecution, and law enforcement officials could always look to the
First Amendment to determine when a law should not be enforced because it would
interfere with constitutionally protected activity .... Because First Amendment
119 SeePhelps v. Powers, 63 F. Supp. 3d 943,945-46,952-57 (S.D. Iowa2014) ("According
to Petitioners [members of Westboro Baptist Church], Chief Powers told Elizabeth Phelps that the
flag desecration statutes would be enforced against the picketers. As a result of Chief Powers's
statement, members of the church refrained from putting the flag on the ground or hanging it from
their bodies." The court found the Iowa flag-desecration statute to be unconstitutionally overbroad
in violation of the First Amendment.); Snider, 752 F.3d at 1154 (In 2009, the defendant was arrested
for flag desecration for shredding an American flag in his front yard and held in jail for
approximately eight hours because both the arresting officer and the prosecutor "wereunaware of
the United States Supreme Court decisions in Texas v. Johnson and United States v. Eichman."
Uponbeing informed of Johnson by a local reporter, the prosecutor dismissed the case.); Gooding
v. Ketcher, 838F. Supp. 2d 1231,1234-35 (N.D. Okla. 2012)(In2009,a United States flagwas used
by the plaintiffas a prop during a band performance, the plaintiffwas arrested and imprisoned for
thirteen hours until he posted bond, formal charges were never filed, and the sheriff commented in
support of arrest, "I was shocked and disturbed by this that somebody would think they could get
by with that People in this part of the United Statesare veryproud of the flagand what it stands
for and the men and women who have lost their lives to protect that flag. It's not an object to be
stomped on or drug across the floor."); Milligan, 479 F. Supp. 2d at 997 (Two defendants were
prosecuted in 2006 for flag desecration or disorderly conductwith respect to the flag for flying flag
upside-down in protest. One defendant was found not guiltyby a magistrate on the basis that the
statute was unconstitutional as applied. The other defendant's case was dismissed one day before
trial.);Janssen, 219 Wis. 2d at 367-68, 580 N.W.2d at 262 (In 1996, the defendant was prosecuted
for flag desecration after he defecated on flag belonging to golf course. Trial court dismissed the
prosecution, and the appellate courts affirmed.); Bricker, 542 Pa. at 237-38, 246-47, 666 A.2d at
258-59, 263 (In 1993, the defendant was prosecuted for flag desecration after a police officer
discovered a dirty and wrinkled flag being used in a doorway inside the home. Trial court quashed
the charge, and appellate court affirmed.).
JOHNSON — 34
doctrines are often intricate and/or amorphous, people should not be charged with
noticeof FirstAmendment jurisprudence Moreover, an attemptto chargepeople
with notice of First Amendment caselaw would undoubtedly serve to chill free
expression.120
Further, in explaining whyit believes appellee'sconduct in thiscasewasnot expressive, the
State offers rationales that could readily lend themselves to the harassment of persons engaging in
protected expression.121 The State claims that there was "no element of speech" in appellee's
conduct because his conduct "was random in nature." But the act of throwing down a flag in anger
could easily be protected expression.122 The State also contends that appellee's conduct was non-
expressive because he threw downa flagthatbelonged to a different storethantheonehewasangry
with. That conclusion depends on statements madeby appellee to the policeaftertheyconfronted
him about his conductin relation to the flag. If the expressivenature of a person's conduct depends
upon what he later says when confronted bythe police about it, then individuals who have engaged
120 Long, 931 S.W.2d at 295 (criticizing reliance on language in an affirmative defense that
made it a defense if the actor engaged in activity"in support of constitutionally... protectedrights"
because suchlanguage wouldrequirecitizens andlaw-enforcement officials "tobeFirstAmendment
scholars"). SeealsoJanssen, 219 Wis. 2d at 382n.13, 580N.W.2d at 268 n.13 ("[A] construction
which by its verylanguage limits a statute's application to speech and conduct that is not protected
by the FirstAmendment is both impractical andconstitutionally suspect [I]tsimply exchanges
overbreadth for vagueness.") (quoting in part from LaurenceH. Tribe, American Constitutional
Law, § 12-29, at 1031 (2d ed. 1988), internal quotation marks omitted).
121 Although the case is before us on a facial challenge to the statute, "we can look to the
prosecution before us as evidence of the real dangerposed by the statute." Thompson, 442 S.W.3d
at 350 (citing Stevens, 559 U.S. at 480).
122 See Joyce, 454 F.2d at 980 ("When all this is added to the unexplained tearing which
marred, injured, and disfigured the flag, it was reasonable to conclude that Joyce intended thereby
publicly to show hisdisrespect andscorn fortheflag and thatheesteemed it tobelowandworthless.
That is the normal inference from an act of intentionally tearing an article. It is the conclusion that
reasonable peoplereachcountless timesa dayin the activities of ordinarylifewhentheyseea person
rip something apart, throw part of it to the ground and tear the remainder.").
JOHNSON — 35
in expressive flag-damaging conductcan nevertheless be subjectto arrestand detention pendingan
investigation regarding whether the conduct was in fact protected expression.123 The State argues
that the public clearly understands that the Constitution protects the right to damage a flag as a
means of expression, but howeverclear that public understanding may be, the ruling soughtby the
Statetodaywouldcloudthat understanding—potentially re-introducing the verychillingeffectthat
the State claims earlier decisions have eliminated.
III. CONCLUSION
"The case is made difficult not because the principles ofits decision are obscure but because
the flaginvolved is ourown."124 Weconclude thattheTexas flag-destruction statute, by itstextand
in actual fact, prohibits a substantial amount of activity that is protectedby 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. We affirm the judgments below.
Delivered: October 7, 2015
Publish
123 The Supreme Court has suggested that its concerns are amplified when First and Fourth
Amendments freedoms intersect. See Maryland v. Macon, 472 U.S. 463, 468 (1985) ("The First
Amendment imposes special constraints on searches for and seizures of presumptively protected
material and requires that the Fourth Amendment be applied with 'scrupulous exactitude' in such
circumstances.").
124 Barnette, 319 U.S. at 641 (regulation requiring school children to salute American flag
and recite pledge of allegiance violates First and Fourteenth Amendments).