BOTSFORD & ROARK

1307 WEST AVENUE 

AUSTIN, TEXAS 78701

www.davidbotsfordlaw.com

David L. Botsford** Brian J. Roark

Telephone: (512) 479-8030 Telephone: (512) 476-1900

Telecopier: (512) 479-8040 Telecopier: (512) 479-8040

E-Mail: DBotsford@aol.com E-Mail: Brian@brianroark.com

_____________________________

*Board Certified in Criminal Law Frank Maloney, Of Counsel*

**Board Certified in Appellate Criminal Law Woody Roark, Of Counsel

Texas Board of Legal Specialization

 

June 30, 2015

Mr. Jeffrey D. Kyle

Clerk, Third Court of Appeals

P.O. Box 12547

Austin, Texas 78711

Re: Ex parte James Richard "Rick" Perry; No. 03-15-00063-CR

Dear Mr. Kyle:

Governor Perry submits this letter to bring to the Court's attention a recently decided

U.S. Supreme Court decision that unambiguously repudiates one of the State's essential

theories in this case. That decision, Johnson v. United States, 576 U.S.___ (No. 13-7120,

June 26, 2015), is available at http://www.supremecourt.gov/opinions/14pdf/13-7120_p86b.pdf, and

Governor Perry requests that this letter be circulated to Justices Puryear, Pemberton and

Field. 

In Johnson, as a matter of federal constitutional law, the Supreme Court expressly

repudiated a key argument made by the dissent (and by the State in this case) – that "a statute

is void for vagueness only if it is vague in all its applications." Slip Op. at 11. The Court

recognized some "statements" in prior cases that "could be read to suggest otherwise, [but]

our holdings contradict the theory that a vague provision is constitutional merely because

there is some conduct that clearly falls within the provision's grasp." Slip Op. at 11

(emphasis in original). Analogously, the Court explained, it had "deemed void for vagueness

a law prohibiting people on sidewalks from `conduct[ing] themselves in a manner annoying

to persons passing by' – even though spitting in someone's face would surely be annoying." 

Slip Op. at 11 (citing Coates v. City of Cincinnati, 402 U.S. 611 (1971)). 

ACCEPTED

03-15-00063-CR

5890589

THIRD COURT OF APPEALS

AUSTIN, TEXAS

6/30/2015 6:37:47 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 6/30/2015 6:37:47 PM JEFFREY D. KYLE Clerk
Johnson thus alters the analysis which must be applied to Governor Perry's Issues II

and VII(A), which address the vagueness of the statutory scheme upon which Count II is

premised (i.e., Section 36.03(a)(1), given the definition of coercion contained in Section

1.07(a)(9)(F)).Significantly, the Supreme Court's vaguenessjurisprudence nowunmistakably

rejects the State's reliance upon Bynum v. State, 767 S.W.2d 767, 774 (Tex. Crim. App. 1989)

for the proposition that "[w]hen a statute does not implicate constitutionally protected

conduct, a reviewing court should sustain the vagueness challenge only if the statute is

impermissibly vague in all its applications." State's Brief at 23-24 & n.58. Of course,

Section 36.03(a)(1) does implicate "constitutionally protected conduct," but Johnson makes

clear that statutes can and must be invalidated even when some application of a vague statute

might be clearly permissible – as with the statute about "annoying" conduct in Coates that

the Supreme Court referenced in Johnson.

Respectfully submitted, 

/s/ David L. Botsford

cc:

Mr. Michael McCrum

Via Email Only

Mr. David Gonzalez

Via Email Only

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