Goyzueta v. State

266 S.W.3d 126

Franco Andre GOYZUETA, Appellant, v. The STATE of Texas, State.

No. 2-07-383-CR.

Court of Appeals of Texas, Fort Worth.

August 26, 2008.

Rickey G. Bunch, Law Office of Rick G. Bunch, Wichita Falls, TX, for Appellant.

Barry L. Macha, Criminal District Attorney, Bryce Perry, Assistant Criminal District Attorney, Benjamin E. Hoover, Assistant Criminal District Attorney, Wichita County Criminal Dist. Atty. Office, Wichita Falls, TX, for Appellee.

PANEL: GARDNER, WALKER, and McCOY, JJ.

OPINION

SUE WALKER, Justice.

I. INTRODUCTION

Appellant Franco Andre Goyzueta appeals his conviction for violation of a permanent injunction under the "gang injunction statute." See TEX. PENAL CODE ANN. § 71.021 (Vernon 2003); TEX. CIV. PRAC. & REM.CODE ANN. § 125.065 (Vernon 2005). Goyzueta pleaded guilty to the offense, and pursuant to a plea bargain agreement with the State, the trial court sentenced him to 300 days' confinement in the Wichita County Jail and a $4,000 fine. In four issues, Goyzueta argues that both section 71.021 of the Texas Penal Code and the permanent injunction's curfew restriction are unconstitutionally vague and overbroad and that section 125.065(a)(2) of the Texas Civil Practice and Remedies Code— authorizing entry of the permanent injunction underlying Goyzueta's conviction—violates the separation of powers doctrine. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

On August 31, 2006, the State filed its "Original Petition for a Temporary Restraining Order, Temporary Injunction, and Permanent Injunction." The petition named twenty-one members of the street gang, Varrio Carnales ("VC"), including Goyzueta, who had allegedly engaged in criminal activity. The petition listed twenty-nine activities the State sought to prohibit the named defendants from engaging in.

Subsequently, the judge of the 89th District Court of Wichita County, Texas entered an order for a permanent injunction under section 125.065 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.CODE ANN. § 125.065. The permanent injunction contained a curfew restriction, prohibiting Goyzueta from "riding about in a public place after 11 p.m. and before 6 a.m. of the immediately following day."¹

A week after the permanent injunction was signed, at approximately 12:43 a.m., Officer Joe R. Esteves, a Wichita Falls police officer, observed a car that failed to signal a left turn. Officer Esteves pulled the car over and saw eighteen-year-old Goyzueta in the car. According to Officer Esteves, he knew that Goyzueta was a VC member and that he was under the gang injunction imposed by the City of Wichita Falls. Officer Esteves consequently arrested Goyzueta for violating the court order enjoining organized criminal activity, namely, "riding about in a public place after 11 p.m. and before 6 a.m. of the immediately following day."

Goyzueta filed a motion to dismiss the charge against him, raising several constitutional challenges to the applicable statutes. Goyzueta did not file any other pretrial motions. After a hearing on his motion to dismiss, Goyzueta and the State reached the above-mentioned plea bargain agreement. Goyzueta now appeals; his appeal is limited by the rules of appellate procedure and by the trial court's certification of his right to appeal, which restrict Goyzueta to re-urging the issues he raised in his motion to dismiss. See TEX.R.APP. P. 25.2(a)(2)(A).

III. THE APPLICABLE STATUTES

Section 125.065 of the civil practice and remedies code outlines when a trial court can enter a temporary or permanent order against a criminal street gang member. See TEX. CIV. PRAC. & REM.CODE ANN. § 125.065. The statute provides:

(a) If the court finds that a combination or criminal street gang constitutes a public nuisance, the court may enter an order:

(1) enjoining a defendant in the suit from engaging in the gang activities of the combination or gang; and

(2) imposing other reasonable requirements to prevent the combination or gang from engaging in future gang activities.

(b) If the court finds that a place is habitually used in a manner that constitutes a public nuisance, the court may include in its order reasonable requirements to prevent the use of the place for gang activity.

Id. Section 71.021 of the penal code describes the offense of violation of a court order enjoining organized criminal activity:

(a) A person commits an offense if the person knowingly violates a temporary or permanent order issued under Section 125.065(a) or (b), Civil Practice and Remedies Code.

(b) If conduct constitutes an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections.

(e) An offense under this section is a Class A misdemeanor.

TEX. PENAL CODE ANN. § 71.021.

IV. CONSTITUTIONALITY OF PENAL CODE SECTION 71.021

In his first and second issues, Goyzueta argues that section 71.021 of the Texas Penal Code is unconstitutionally vague and overbroad.² The parties contend that this is a case of first impression in Texas as no other court has addressed the constitutionality of the gang injunction statute.

The constitutionality of a criminal statute is a question of law which we review de novo. Owens v. State, 19 S.W.3d 480, 483 (Tex.App.-Amarillo 2000, no pet.); State v. Salinas, 982 S.W.2d 9, 10-11 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). Whenever we are confronted with an attack upon the constitutionality of a statute, we presume that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App. 2002); Ex parte Dave, 220 S.W.3d 154, 156 (Tex.App.-Fort Worth 2007, pet. ref'd), cert. denied, ___ U.S. ___, 128 S.Ct. 628, 169 L.Ed.2d 394 (2007). The burden rests upon the individual who challenges the statute to establish its unconstitutionality. Rodriguez, 93 S.W.3d at 69; Ex parte Dave, 220 S.W.3d at 156. In the absence of contrary evidence, we will presume that the legislature acted in a constitutionally sound fashion. Rodriguez, 93 S.W.3d at 69. The statute must be upheld if a reasonable construction can be ascertained that will render the statute constitutional and carry out the legislative intent. Shaffer v. State, 184 S.W.3d 353, 363 (Tex. App.-Fort Worth 2006, pet. ref'd); see also Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim.App. [Panel Op.] 1979).

When an appellant challenges a statute as both unconstitutionally overbroad and vague, we address the overbreadth challenge first. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982); Duncantell v. State, 230 S.W.3d 835, 843 (Tex.App.-Houston [14th Dist.] 2007, pet. ref'd); Byrum v. State, 762 S.W.2d 685, 687 (Tex. App.-Houston [14th Dist.] 1988, no pet.).

A. Overbreadth Challenge

Goyzueta contends that section 71.021 is unconstitutionally overbroad because the statute is open-ended and allows the trial judge to determine what conduct is prohibited.³

An overbreadth attack on a statute is recognized only in the context of a First Amendment challenge. United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). In analyzing a facial overbreadth challenge to a law, we first determine if the statute reaches a substantial amount of constitutionally protected conduct. Village of Hoffman Estates, 455 U.S. at 494, 102 S.Ct. at 1191; State v. Holcombe, 145 S.W.3d 246, 250 (Tex.App.-Fort Worth 2004), aff'd, 187 S.W.3d 496 (Tex.Crim.App.), cert. denied, 549 U.S. 824, 127 S.Ct. 176, 166 L.Ed.2d 41 (2006). A statute will not be invalidated under the overbreadth doctrine merely because it is possible to imagine some unconstitutional applications. Holcombe, 145 S.W.3d at 250 (citing Village of Hoffman Estates, 455 U.S. at 494, 102 S.Ct. at 1191). Rather, the wide-reaching effects of striking down a statute on its face, at the request of one whose own conduct may be punished despite the First Amendment, has caused the Supreme Court to recognize that the "overbreadth doctrine is `strong medicine' and [courts should employ] it with hesitation, and then `only as a last resort.'" New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982); Garcia v. State, 212 S.W.3d 877, 888 (Tex.App.-Austin 2006, no pet.); Holcombe, 145 S.W.3d at 250.

The traditional rule is that "a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court." Los Angeles Police Dept. v. United Reporting Publ'g Corp., 528 U.S. 32, 38, 120 S.Ct. 483, 488, 145 L.Ed.2d 451 (1999). However, an exception to this rule is a First Amendment overbreadth challenge. Ferber, 458 U.S. at 769, 102 S.Ct. at 3361. We will not strike down a statute under the overbreadth doctrine unless there is "a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court." Duncantell, 230 S.W.3d at 843; Garcia, 212 S.W.3d at 888.

Goyzueta argues that section 71.021 is overbroad because it sweeps within its coverage speech or conduct that is protected by the First Amendment. We cannot agree. The purpose of the overbreadth doctrine is to protect First Amendment freedom of expression from laws written so broadly that the fear of punishment might discourage others from taking advantage of that freedom. People v. Reynolds, 302 Ill.App.3d 722, 235 Ill. Dec. 789, 706 N.E.2d 49, 53-54 (1999). Here, section 71.021 forbids a person from "knowingly" violating a temporary or permanent order. TEX. PENAL CODE ANN. § 71.021. As such, the statute has a limited applicability because it applies only to individuals who are subject to a temporary or permanent order and who knowingly violate that order. See Garcia, 212 S.W.3d at...