Ex Parte Steven Joseph Eribarne III, 525 S.W.3d 784

Steven Joseph Eribarne III was indicted under Tex. Penal Code § 36.06 for intentionally or knowingly harming or threatening to harm a person "in retaliation for and on account of the service and status" of the victim as a public servant.
Eribarne filed an amended application for pretrial writ of habeas corpus asserting § 36.06 is facially overbroad and vague under the First Amendment.
He argued the statute regulates speech by content, captures protected speech (not limited to true threats), and thus must satisfy strict scrutiny.
The trial court conducted a non-evidentiary hearing and denied habeas relief.
On appeal, the Ninth Court of Appeals reviewed de novo whether the statute is facially unconstitutional and relied on prior appellate analysis in Webb v. State.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 36.06 is facially overbroad and triggers strict scrutiny under the First Amendment	§ 36.06 regulates speech by content, reaches protected expression (not limited to true threats), and must survive strict scrutiny	§ 36.06 punishes harmful or threatening unlawful conduct (not protected speech) and is rationally related to protecting public servants	Court held § 36.06 is not facially overbroad, does not implicate First Amendment protections in a way that requires strict scrutiny, and affirmed denial of habeas relief

Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (facial-unconstitutionality review de novo; distinction between regulating conduct and speech)
Webb v. State, 991 S.W.2d 408 (Tex. App.—Houston [14th Dist.] 1999) (upholding § 36.06 against overbreadth challenge; statute targets threats/unlawful conduct)
Broadrick v. Oklahoma, 413 U.S. 601 (U.S. 1973) (presumption of statute validity in First Amendment facial challenges)
Ex parte Woodall, 154 S.W.3d 698 (Tex. App.—El Paso 2004) (distinguishing regulation of speech from regulation of conduct)