State v. Terence Johnson
12-12-00425-CR
| Tex. App. | Oct 7, 2015Background
- Defendant Terence Johnson was recorded grabbing a U.S. flag from a storefront, removing it from its staff, and throwing it into the street; he told police he acted because he was "mad."
- Johnson was charged under Texas Penal Code § 42.11 (flag-destruction) for intentionally or knowingly damaging/defacing/mutilating/burning a U.S. or Texas flag; the information alleged he threw the flag onto a highway.
- The trial court dismissed the information, concluding the statute criminalized expressive conduct in contravention of Texas v. Johnson and United States v. Eichman.
- The court of appeals affirmed in part: it rejected Johnson’s as-applied challenge (finding his act non‑expressive) but held § 42.11 facially unconstitutional as substantially overbroad under the First Amendment.
- The Court of Criminal Appeals affirmed the court of appeals: it concluded § 42.11 is facially invalid because, by text and in actual practice, it proscribes a substantial amount of protected expressive conduct (e.g., flag burning as protest).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Johnson) | Held |
|---|---|---|---|
| Whether § 42.11 is facially overbroad under the First Amendment | Statute is content-neutral, punishes non-expressive damage, and lawful applications vastly outnumber any unconstitutional ones; prosecutions are rare so chilling is minimal | Statute reaches a substantial amount of protected expressive conduct (e.g., protest flag-destruction) and therefore is facially overbroad | Held: § 42.11 is facially unconstitutional as substantially overbroad |
| Whether the statute is unconstitutional as applied to Johnson (expressive conduct) | Johnson’s act was non-expressive criminal mischief: random, not intended to convey a message, and targeted a flag not associated with the merchant he complained about | His act implicated protected nonverbal expression; flag-directed mistreatment is often expressive | Court of Appeals: rejected Johnson’s as-applied claim (conduct not sufficiently communicative). CCA did not decide this issue further because no cross‑petition; primary holding was facial invalidity |
| Whether the statute can be narrowly construed to avoid constitutional problems (e.g., limit to non-owner flags or to criminal mischief cases) | The statute can be read as targeting damage to others’ flags or as limited by criminal mischief principles | The statutory text is unambiguous and applies regardless of ownership or consent; narrowing would rewrite legislative intent | Held: statute is not readily susceptible to the narrowing constructions urged by the State; court construes it according to its plain, broad text |
| Whether a pattern of non-enforcement or public awareness negates overbreadth (no realistic chilling) | Prior Supreme Court decisions and prosecutor restraint mean unconstitutional applications are rare and the public knows expressive flag-destruction is protected | Reliance on non-enforcement or prosecutorial restraint cannot save an overbroad statute; threats of misapplication and chilling remain while law remains on the books | Held: pattern-of-non-enforcement argument rejected; courts will not uphold a statute solely on promises of responsible enforcement |
Key Cases Cited
- Texas v. Johnson, 491 U.S. 397 (1989) (flag burning as political protest is expressive conduct protected by the First Amendment)
- United States v. Eichman, 496 U.S. 310 (1990) (federal flag‑protection statute is a content-based restriction and unconstitutional when applied to expressive flag mistreatment)
- Virginia v. Hicks, 539 U.S. 113 (2003) (discussion of overbreadth standing and its limits; context for state-court application)
- New York v. Ferber, 458 U.S. 747 (1982) (state courts must apply federal constitutional facial attacks; limits on compelled avoidance of federal overbreadth doctrine)
- West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) (First Amendment protection against compelled flag salute; cited for the flag’s constitutional sensitivity)
- United States v. Stevens, 559 U.S. 460 (2010) (overbreadth is disfavored and ‘strong medicine,’ but required when statute prohibits a substantial amount of protected speech)
- Secretary of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) (overbreadth relates to substantive First Amendment merits rather than pure standing)