State v. Terence Johnson
12-12-00425-CR
| Tex. App. | Oct 7, 2015Background
- Defendant Terence Johnson challenged Texas Penal Code § 42.11, which criminalizes intentionally or knowingly damaging, defacing, mutilating, or burning the U.S. or Texas flag.
- The Texas statute applies to any flag "capable of being flown from a staff of any character or size," with a limited exception for "proper disposal" conforming to federal or state statutes.
- The Court of Criminal Appeals considered whether the statute is unconstitutionally overbroad under the First Amendment.
- The concurring opinion joins the majority holding the statute overbroad and unconstitutional as applied to expressive conduct (flag destruction) protected by the First Amendment.
- The concurrence emphasized practical overbreadth risks: ordinary homeowners could theoretically be criminalized for discarding small or dirty decorative flags.
- The concurrence relied on Supreme Court precedent permitting facial overbreadth challenges and declined to impose a state-law standing/causation hurdle beyond federal overbreadth doctrine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 42.11 is facially overbroad under the First Amendment | Johnson: statute criminalizes expressive conduct (flag burning) and is overbroad | State: law protects flag and prevents desecration; not unconstitutional | Court: statute is unconstitutionally overbroad and infringes First Amendment speech rights |
| Whether the statute's scope criminalizes commonplace nonexpressive conduct (e.g., disposing of small flags) | Johnson: statute could punish ordinary homeowners for disposing of flags, showing overbreadth beyond protest conduct | State: enforcement would be limited; unlikely to prosecute ordinary discards | Court: concurrence notes statute is so broad it could criminalize many homeowners and enforcement discretion cannot save it |
| Whether a challenger must show personal, particularized injury to mount an overbreadth attack | Johnson: overbreadth doctrine allows facial attacks without defendant proving his own conduct is unregulated by a narrower statute | State: urged imposing a procedural hurdle requiring personal impact | Court: rejects additional state hurdle; follows Broadrick—overbreadth attacks need not show personal inability to conform conduct |
| Whether Texas courts must follow Supreme Court precedents on flag desecration and overbreadth | Johnson: Supreme Court precedents control and foreclose criminalization of flag desecration as protected speech | State: argued for upholding statute to protect the flag | Court: concurrence affirms that Texas must follow Supreme Court decisions (Texas v. Johnson, Eichman) and related overbreadth doctrine |
Key Cases Cited
- Texas v. Johnson, 491 U.S. 397 (holding flag burning is protected expressive conduct under the First Amendment)
- United States v. Eichman, 496 U.S. 310 (striking down federal flag-protection law as violating the First Amendment)
- Broadrick v. Oklahoma, 413 U.S. 601 (permitting facial overbreadth attacks without a requirement that the challenger show personal incapacity to conform)