1 

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-17-00036-CR 

________________ 

EX PARTE STEVEN JOSEPH ERIBARNE III

__________________________________________________________________

On Appeal from the 258th District Court

Polk County, Texas

Trial Cause No. 24,764

__________________________________________________________________

OPINION 

Steven Joseph Eribarne III was charged with the offense of retaliation. See 

Tex. Penal Code Ann. § 36.06 (West Supp. 2016). Eribarne filed an amended 

application for pretrial writ of habeas corpus, in which he contended that the 

retaliation statute is facially overbroad and vague under the First Amendment of the 

United States Constitution. See id. After conducting a non-evidentiary hearing, the 

trial court denied Eribarne’s application. In his sole appellate issue, Eribarne argues 

that section 36.06 is unconstitutionally overbroad on its face in violation of the First 

Amendment. We affirm the trial court’s order denying habeas relief. 
2 

 Section 36.06 of the Texas Penal Code provides as follows, in pertinent part: 

(a) A person commits an offense if the person intentionally or knowingly harms 

or threatens to harm another by an unlawful act: 

(1)in retaliation for or on account of the service or status of another as a: 

(A)public servant . . . . 

Id. The indictment alleged that Eribarne intentionally or knowingly harmed and 

threatened to murder the victim “in retaliation for and on account of the service and 

status of [the victim] as a public servant[.]” According to Eribarne’s petition for writ 

of habeas corpus, the State bore the burden of demonstrating that the statute satisfies 

strict scrutiny; that is, “the State must show that the statute is both necessary and 

narrowly written to satisfy a compelling state interest.” Eribarne argued that the 

statute restricts speech based on content and also restricts protected speech, is not 

limited to true threats, and fails to meet the strict scrutiny standard. Eribarne 

advances the same arguments on appeal. 

 Whether a statute is facially unconstitutional is a question of law that we 

review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). In Webb 

v. State, 991 S.W.2d 408 (Tex. App.—Houston [14th Dist. 1999], pet. ref’d), our 

sister Court of Appeals addressed an overbreadth challenge to section 36.06. Id. at 

412.1

 The Webb court held that section 36.06 does not abridge constitutionally 

 

1

The current version of section 36.06(a)(1) is identical to the text of the statute 

as it existed when Webb was decided in 1999. See Tex. Penal Code Ann. § 
3 

protected speech and that the statute “survives the facial challenges to 

overbreadth[.]” Id. at 414-15. The Webb court held that section 36.06 does not 

implicate First Amendment protections because “[b]y its terms, the statute punishes 

only those individuals who intentionally or knowingly harm or threaten to harm 

another person by an unlawful act.” Id. at 415. 

According to the Webb court, the statute only punishes threatening speech and 

“does not reach a substantial amount of constitutionally protected conduct.” Id. 

Because the statute punishes conduct rather than the content of speech alone and 

bears a rational relationship to the State’s legitimate and compelling interest in 

protecting public servants from harm, we reject Eribarne’s argument that we must 

apply the strict scrutiny standard when analyzing his issue. See Broadrick v. 

Oklahoma, 413 U.S. 601, 615 (1973); Ex parte Woodall, 154 S.W.3d 698, 702 (Tex. 

App.—El Paso 2004, pet. ref’d); see also Ex parte Lo, 424 S.W.3d at 16-17 (noting 

the distinction between regulating speech versus regulating conduct). We therefore 

presume that the statute is valid, and that the Legislature did not act arbitrarily or 

unreasonably in enacting the statute. Ex parte Lo, 424 S.W.3d at 15. 

 

36.06(a)(1) (West Supp. 2016); Webb v. State, 991 S.W.2d 408, 413 (Tex. App.—

Houston [14th Dist. 1999], pet. ref’d).
4 

 We agree with the analysis of our sister Court of Appeals in Webb and 

conclude that section 36.06 does not implicate First Amendment protections and is 

not unconstitutionally overbroad. See id. at 412-15. Accordingly, we overrule 

Eribarne’s sole issue and affirm the trial court’s order denying habeas relief. 

 AFFIRMED. 

______________________________ 

 STEVE McKEITHEN 

 Chief Justice 

Submitted on May 24, 2017 

Opinion Delivered July 19, 2017 

Publish 

Before McKeithen, C.J., Kreger and Horton, JJ.