Johnson, Terence, PD-0228-14

Appellee Terence Johnson was charged under Texas destruction-of-a-flag statute (Tex. Penal Code § 42.11) and convicted.
Dissenting opinion argues the Texas Court of Criminal Appeals facially struck down the statute, contrary to applied conduct.
Dispute centers on whether Texas may hear overbreadth challenges without showing the statute harmed the claimant personally.
Dissent asserts standing is governed by state constitution and law, not federal standing rules.
Dissent contends the majority improperly treats overbreadth as a facial remedy beyond the claimant’s own injury.
Dissent emphasizes separation-of-powers and avoids advisory opinions; would not invalidate the statute absent applied injury.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Can Texas courts hear overbreadth challenges without injury-in-fact?	Johnson argues state law permits broader standing for overbreadth claims.	Yeary argues standing should require personal constitutional injury under Texas law.	Tex. courts should require personal injury; overbreadth standing not relaxed.
Does Texas Constitution limit judiciary from facially invalidating statutes based on overbreadth?	Johnson asserts federal overbreadth doctrine can be applied by Texas courts.	Yeary contends separation of powers restricts judicial striking of statutes not applied unconstitutionally to the claimant.	Texas separation of powers limits facial overbreadth invalidation absent own injury.
Should the overbreadth inquiry focus on statute text or potential applications?	Johnson argues broad application risks constitutionality irrespective of text.	Yeary insists overbreadth must be measured against the statute’s plain sweep and actual text.	Overbreadth must be real and substantial in relation to the statute’s text.
Does the majority’s approach amount to advisory rulemaking beyond constitutional authority?	Johnson worries about speculative enforcement against nonparties.	Yeary cautions against creating policy for future cases not presented.	Court should not issue advisory rules or strike statutes without direct injury.

Texas v. Johnson, 491 U.S. 397 (1989) (invalidates prior statute as applied to protest; First Amendment guidance)
United States v. Eichman, 496 U.S. 310 (1990) (cannot constitutionally be applied to appellees)
Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth must be real and substantial relative to legitimate sweep)
Virginia v. Hicks, 539 U.S. 113 (2003) (standing and substantial overbreadth inquiry interplay)
Rakas v. Illinois, 439 U.S. 128 (1978) (Fourth Amendment standing is distinct from personal rights ownership)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ( Article III standing requirements and injury-in-fact)