*1 808 State, positive You’re about that See Martinez v.
“Q too? S.W.2d 842 hearing, (Tex.Cr.App.1969). that At Lun- “A Yes.” witness, dy, complaining testified that line-up, if there had no he even been appellant reflects made The record identifying would have had no trouble questioning objection to this line of open The record re- court. Sierra, supra at 264 in the trial court. See Lundy flects that had five approximately State, S.W.2d; of 482 v. 475 S.W. Golden eight appel- he viewed minutes which (Tex.Cr.App.1971). 2d Not until robbery. lant during the course counsel, argument, in his final fense found, judge careful trial in the absence robbery, reference to second one which jury, that the identification of the allegedly September occurred on appellant by Lundy was untainted was the issue of an extraneous offense ever prior line-up. We have examined actually Appellant’s contention is raised. record, hereby conclude that the trial merit. without judge findings. was correct in alleges Appellant also that reversi is affirmed. ble error was committed when com witness, Lundy, plaining was allowed appel
make an in-court identification Appellant contends that testi lant. such mony unduly suggestive was tainted Lundy fundamentally line-up. unfair line-up man
testified that the four colored sisted two white males two Appellant, Ray DELORME, Daniel line-up males, persons and that the age appearance. were not of similar Texas, Appellee. The STATE of basis, On states that No. 45250. line-up comply did not with United States Wade, 87 S.Ct. of Texas. Court Criminal L.Ed.2d v. Cali and Gilbert 10, 1973. Jan. fornia, L. 87 S.Ct. Ed.2d 1178
Admittedly, line-up probably did not requirements meet the established However, above-cited cases. we need not Wade, question. reach that it was held in-court identifications would be ad though line-up missible im even was proper if had an the in-court identification also,
independent origin.
Fitts v.
See
(5th Cir.1969)
8Q9 Luquette, Moore, George M. F. Robert Houston, appellant. Vance, Carol Atty., S. Dist. C. James Karam,
Brough George Asst. and Dist. Vollers, Houston, Attys., and D. Jim Huttash, Atty., Robert Asst. State’s and A. Austin, Atty., State’s for the State.
OPINION
DALLY, Commissioner. desecra- public for the The States. tion of years punishment jury assessed two placed appellant was imprisonment required by jury’s probation as mandatory recommendation. urges that this court does not
The State hear decide jurisdiction have given, appeal notice of appeal. After probation the State revoke moved arrest. appellant’s capias was issued capi- shows the record An affidavit in because and executed as was not served found. appellant could not be contends that State therefore provisions of “escaped” under the has hours, 44.09, Ann.C.C.P.,1 during ter business “He had Vernon’s on a white, long, through looked jurisdiction of the has termi- see like a court’s —it agree. gown. pair granny rag- And he had nated. We do Ievis, feet, ged an American bare upon by The facts relied the State pockets between the seat of sewed do not show the has an “es officer his britches.” The testified *3 cape custody” meaning from within the appellant, feet the he while fifteen from Further, 44.09, ap Article the V.A.C.C.P. flag on “clearly could see” the the trousers pellant is entitled an from a appeal through granny gown. the probation. 42.- granting Articles urges court to and 42.04 an this declare Where V.A.C.C.P. § 152, V.A.P.C., appeal vague taken, is do is so and probation the terms that Article not that the entire stat- until the of this overbroad its face commence mandate on the probation is it violates First court issued.2 could ute must fall because Since to the not and Fourteenth Amendments Consti- pending appeal, capias be revoked the He also appellant’s tution of the United States. the arrest not should have Article argues in jurisdiction been the alternative issued. This court has V.A.P.C., circum- applied him in the appeal. this of his stances of is violation charges appel- The indictment that the protected by rights the same constitutional publicly by lant defy “did defile and act provisions. States, to-wit, the of the United hav- ing pants it to the of his and affixed seat to hold recently refused This court has public,” the in in same violation vague 152, V.A.P.C., and is that Article so Ann.P.C., Article Vernon’s it in as to render vi- overbroad on its face provides: First and Fourteenth the olation to the Constitution Amendments “Any who shall within this State, 474 S.W.2d United States. Deeds v. State, privately, mutilate, publicly or in That (Tex.Cr.App.1971). face, defile, tramp defy, upon, or cast controlling State, supra, Deeds v. contempt upon, by either or act word applies here opinion what said in that standard, color, ensign flag, any fur- will repeated, but we need be not States, any of its or that the United ther elaborate. officers, either of imitation of or on them, penitentia- confined in the shall be provi- statutory determining whether ry than more than less two nor and Four- to the First repugnant sions are twenty-five years.” Constitution to the teenth Amendments applied” the “as both Sharpstown security A at the officer relied been doctrines have “overbroad” shopping in testified center Houston upon. the the cen- when he at observed pun- provides: escaped; the V.A.C.C.P., 44.09, cases he
1. Article jury by death defendant, appeal pending the ishment inflicted “If operated escape felony case, institution in an from or confinement makes his Department jurisdiction of Corrections custody, of the Court may life, re- longer in its discretion at- no court shall of Criminal appeal Upon defendant if the of such instate the fact tach case. voluntarily recaptured with- surrenders escape appear, being court escape.” thirty days after such attorney, shall, on State’s motion appeal; dis- the order dismiss the but V.A.C.C.P., 42.13, similar § Article missing be set aside if shall pro applying provision misdemeanor appear the defendant it is made to bation, Smith See construed. has been days (Tex.Cr.App. voluntarily State, returned within ten has S.W.2d custody of officer from whom to the true, (Tex.Cr.App.1963). This is W.2d 174 review of statutes under The facial statutory enactment though even a whole requires doctrine the overbreadth severability Salas v. clause. handiwork tains legislative invalidation sale supra, and Gilderbloom v. many abstract consideration of as well as the Tex.Cr.R. apart from the record questions does re Because it
case
be decided.
entire statute
quire the invalidation of an
V.A.P.C.,
insofar as
expe
limited to statutes where
it should be
prohibits
“private”
acts done
and com
ob
knowledge make
and common
rience
undoubtedly
“words” is
munication
applica
impermissible
numerous
vious that
violation of the First Amendment to the
This
will be made.
tions of the statute
Constitution of the United States. Street
to in
recently
approach
has
used
court
in Baker v.
vagrancy validate the
*4
(1969).
L.Ed.2d 572
(Tex.Cr.App.1972),
445
478 S.W.2d
bar,
In the
at
are not confronted
we
case
considering Article
do so in
but refused to
allegations
proof
of acts done
152,V.A.P.C.,
supra.
v.
Deeds
“private”
by “words.”
or communication
obviously
parts
unconstitutional
of
These
applied”
does
The “as
doctrine
152, V.A.P.C.,
easily
are
severed
Article
statute
require
of an entire
invalidation
of the statute.
from the remainder
a statute that
appropriate to
and it is more
only limit
is
and one which
severable
By enforcing the
as
acts done
if
ex
of nonverbal
degree
ed
restrictive
“private”
“words”
and communication
pression.
omitted, it is a valid statute. We
had been
152,
interpret Article
V.A.P.C. The
court, if it
duty of the
is the
It
enforced as if it read:
statute will be
it
done,
a statute so that
to construe
can be
a statute
Where
valid.
will remain
within
“Any
who shall
provisions
are valid
which
tains words
mutilate,
privately
publicly ©¾=
State
not,
be
are
effect should
which
and others
defile,
face,
tramp upon or cast
defy,
provisions by
given
the valid words and
act,
et=
contempt upon, rithe?
war-d
separating them from the
ones.
invalid
ensign of
standard,
any flag,
color or
Giles,
532,
Company
Tex.
Ohio Oil
v.
149
States,
its
any of
or that of
(1950);
235
630
Zwernemann v.
imitation
either
or on
officers
Rosenburg,
522,
Von
485
76 Tex.
13 S.W.
peniten-
confined
them shall be
;
Towles,
(1890)
parte
48
and Ex
Tex. 413.
than
nor more
tiary not less than two
portion
If
the unconstitutional or void
3
twenty-five years.”
any statute be stricken out and that which
complete
capable
interpreted
remains is
in itself and
in this
the statute
When
overbroad,
apparent
vague
its
being
way,
executed in accord with the
nor
it is neither
intent,
per-
independent
sufficiently
definite for a
legislative
wholly
wording is
intelligence to
portion
rejected,
ordinary
the statute
determine
son of
It is simi-
proscribed.4
365 S.
must
sustained. Salas v. State
therein
be
conduct
penalty
gresses
severity
are
3.
and therefore
note
of the
the statute
per
process
Y.A.P.C.,
152,
greater
is whether
is far
violative of due
ordinary intelligence,
comparable
ju-
who would
son of
than in
statutes in other
risdictions;
law-abiding,
however,
with rea
can determine
matter of
be
is a
precision
solely
Legislature,
it is
what conduct
consideration
sonable
York,
duty
New
v.
not this court.
avoid. Winters
665,
507,
840
92 L.Ed.
333
68
U.S.
S.Ct.
Petrillo,
(1948);
332
determining
States v.
The test for
stat
whether a
1,
1538,
lar
that of the Federal
or as
vague
upon
him a restraint
right
of freedom
which has withstood
Statute5
speech
upon
Joyce
guaranteed by
it.
the First Amend
attack made
and overbroad
128,
U.S.App.D.C.
vague
ment
it was
147
v. United
overbroad.7
universally historically considered holdings jurisdic- diverse in a number of unclean, object and the derision tions in construing cases similar statutes scorn and the reference to which hand; and facts to those in the case at certain tenor often the source of however, position court words, fighting was a clear act of defile- case, supra, ap- Deeds v. and in this flag ment in that the thus dishon- pears be in accord with and not con- ored; that the idea of dishonorment was trary to the of the United decisions States keys question one of the to the of wheth- Court,10 Supreme only court whose flag er the was defiled. We must con- binding cisions are on this court. clude that the use of the word ‘defile’ in subject statute was intended in- is affirmed. public brings clude conduct which shame upon disgrace use for its Opinion approved by the Court. unpatriotic profane purpose. It opinion our of a pants,
on the seat of one’s
the cir-
under
ROBERTS, Judge (concurring).
physical
cumstances
act
*6
Although
I concur
the results the ma-
which defiles the
violation
R.
today,
vigorously
jority reaches
I must
dis-
C.
a use of the
2921.05. Such
agree
precise
with the
manner which
eyes
degrade
cheapen
would
upheld.
statute is
I believe that the court
people,
as defeat the ob-
well
severing
is in
error in
from the statute
ject maintaining
it as
emblem of
summarily holding
term “word” and
power
national
Halter v.
honor.
portion
I
the law unconstitutional.
re-
34,
(1907),
Nebraska
27 S.Ct.
U.S.
main convinced that there are conceivable
419,
Similarly People