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 charge d 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 an d vague under the First Amendment of the United States Constitution. See id . After conducting a non-evid entiary hearing, the trial court denied Eribarne’s application. In his sole appellate i ssue, Eribarne argues that section 36.06 is unconstitu tionally overbroad on its face in violation of the First Amendment. We affirm the trial c ourt’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 pers on 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 reta liation 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 stat e 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 unconstit utional 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 do es 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 statut e “survives the facial challenges to overbreadth[.]” Id . at 414-15. The Webb court held that section 36.06 does not implicate First Amendment protections beca use “[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 substan tial 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 re ject 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 impli cate First Amendment protections and is not unconstitutiona lly overbroad. See id . at 412-15. Accordingly, we overrule Eribarne’s sole issue and affirm the tr ial 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., Kr eger and Horton, JJ.