Ex Parte Derek Ty Poe, 491 S.W.3d 348

Poe was charged by information with misdemeanor disorderly conduct under Tex. Penal Code § 42.01(a)(8) for intentionally and knowingly displaying an AR-15 in a public place "in a manner calculated to alarm."
Poe sought a pretrial writ of habeas corpus arguing § 42.01(a)(8) is facially vague and overbroad and violates the First, Second, Fifth, and Fourteenth Amendments and parallel Texas constitutional provisions; he claimed display of a firearm can be expressive (First Amendment) and protected by the Second Amendment.
Poe submitted affidavits from gun-rights activists describing open-carry protests and alleging arrests and ‘‘swatting’’ complaints; the State relied on facts that Poe traversed a crowded mall with an AR-15, causing multiple 911 calls.
The trial court denied habeas relief after an evidentiary hearing; Poe appealed, advancing facial vagueness and overbreadth challenges (not an as-applied challenge).
The court reviewed facial constitutionality de novo, construed statutory terms by their plain meaning, and emphasized the statute penalizes conduct (display in a manner calculated to alarm) with an express mens rea requirement (intentionally or knowingly).
The court held the statute gives fair notice, is not facially overbroad relative to its legitimate sweep, regulates conduct rather than protected speech, and is rationally related to public safety; it affirmed denial of habeas relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Vagueness of § 42.01(a)(8)	Poe: terms like "displaying," "manner," "calculated," and "alarm" are undefined and subjective, failing to give fair notice	State: statute has plain meaning; includes mens rea so gives adequate guidance and limits prosecutions	Statute is not unconstitutionally vague; words have common meanings and mens rea restricts scope
Overbreadth / First Amendment	Poe: displaying firearms can be expressive political speech; statute chills protected protest activity	State: statute punishes conduct (not mere speech) that is calculated to alarm; public safety interest justifies it	Overbreadth not established; no substantial amount of protected expression is covered relative to statute’s legitimate sweep
Second Amendment challenge (facial)	Poe: statute criminalizes bearing/displaying arms as protected conduct	State: statute targets alarm-causing displays with intent; Second Amendment not absolute	Facial Second Amendment challenge fails; petitioner must show statute is unconstitutional in every application and did not do so
Relief sought (pretrial habeas) / As-applied vs facial	Poe sought facial relief only; relied on evidence of protest arrests to show chilling	State emphasized facts of mall incident and statute’s language; noted lack of convictions for protesters	Court considered facial challenge only and declined to decide any as-applied claim; affirmed denial of habeas

Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (standard for facial challenges and content-based speech analysis)
State v. Holcombe, 187 S.W.3d 496 (Tex. Crim. App. 2006) (vagueness/fair notice principles)
In re Shaw, 204 S.W.3d 9 (Tex. App.—Texarkana 2006) (overbreadth requires more than imagined unconstitutional applications)
Parker v. State, 985 S.W.2d 460 (Tex. Crim. App. 1999) (construing undefined statutory terms by plain meaning)
Ex parte Woodall, 154 S.W.3d 698 (Tex. App.—El Paso 2004) (distinguishing regulation of conduct from regulation of speech)
Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth doctrine and balancing interests)
United States v. Williams, 553 U.S. 285 (2008) (‘‘strong medicine’’ admonition on overbreadth doctrine)
United States v. Stevens, 559 U.S. 460 (2010) (overbreadth standard in First Amendment context)
District of Columbia v. Heller, 554 U.S. 570 (2008) (individual right to keep and bear arms but right is not unlimited)
McDonald v. City of Chicago, 561 U.S. 742 (2010) (Second Amendment applies to the States)