State v. Johnson, 425 S.W.3d 542

Terence Johnson (Appellee) was charged under Tex. Penal Code § 42.11 for pulling a business’s American flag from its staff and throwing it into the street on April 29, 2012.
Appellee moved to dismiss, arguing § 42.11 is unconstitutional and that his conduct was protected symbolic speech; the State argued the act was non‑expressive criminal conduct and the statute is constitutional.
The trial court granted dismissal, reasoning that flag‑related acts (e.g., burning) can be protected speech and citing United States v. Eichman and Texas v. Johnson.
On appeal the State raised two issues: (1) whether § 42.11 is facially unconstitutional; and (2) whether applying § 42.11 to Appellee unconstitutionally infringed his First Amendment rights.
The surveillance video and Appellee’s recorded interview showed he grabbed the flag, threw it into the street, and said he did so because he was “mad”; there was no evidence he intended to convey a particularized political message.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 42.11 is facially unconstitutional (overbroad)	§ 42.11 criminalizes flag conduct that includes protected expressive acts (like burning) and thus is overbroad.	The statute is valid; no court has held it facially invalid and it does not unconstitutionally restrict expression.	Held unconstitutional on its face as overbroad.
Whether application of § 42.11 to Appellee violated his First Amendment rights (as‑applied)	Appellee: his act of throwing the flag was expressive conduct protected by the First Amendment.	State: Appellee’s act was nonexpressive criminal mischief, not symbolic speech.	Held not unconstitutional as applied; Appellee’s conduct was not sufficiently communicative to trigger First Amendment protection.

Texas v. Johnson, 491 U.S. 397 (1989) (flag burning during political protest is expressive conduct protected by the First Amendment)
United States v. Eichman, 496 U.S. 310 (1990) (struck down federal flag‑protection statute as unconstitutional restriction on expressive conduct)
Spence v. Washington, 418 U.S. 405 (1974) (attaching a peace symbol to an upside‑down flag was sufficiently communicative to warrant First Amendment protection)
United States v. Stevens, 559 U.S. 460 (2010) (framework for construing statutes in overbreadth analysis)
New York State Club Ass’n, Inc. v. City of New York, 487 U.S. 1 (1988) (overbreadth doctrine allows facial challenge where law may chill third‑party protected speech)
Lawrence v. Texas, 539 U.S. 558 (2003) (discusses relevance of nonenforcement patterns in constitutional analysis)
State v. Jimenez, 828 S.W.2d 455 (Tex. App.—El Paso 1992) (addressed dismissal under Texas flag statute post‑Johnson/Eichman)