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

CLERKJohnson thus alters the analy sis which m ust be applied to G overnor Perry ' s Issues II and VII(A), which a ddress the v agueness of the statutor y s c h e me upon which Count II is prem ised (i.e., Section 36.03 (a)(1), given the d ef inition of coercion c ontained in Section 1

. 0 7 ( a ) ( 9 ) ( F ) )

. S i g n i ficantly
, the Suprem e Court' s v a g u e n e s s j u r i s p r u d e n c e n o w u

n m i s t a k a b l y rejects the State' s reliance upon Bynum v. S tate , 767 S .W .2d 767, 774 (Tex. Crim

. App. 1989) f or the p roposition that "[ w ]hen a statute does not im plicate constitutionally protected conduct, a reviewing court should sustain the v a gueness challenge o nly i f the statute is im p erm issibly v ague in all its applications." S tate' s Brief at 2 3-24 & n.58. Of course, Section 3 6.03(a)(1) does im plicate "constitutionally protected conduct," but Johnson m akes clear that statutes c an and m ust be invalidated even when som e application of a vague statute

m ight be clearly perm issible – as with the statute a b out "annoy i ng" conduct in Coates that the Suprem e Court ref

erenced in Johnson

. Respectf ully subm itted,

/s/ David L. Botsf

ord

cc: Mr. Michael McCrum Via Em a il Only

Mr. David Gonzalez Via Em a il Only

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