### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00500
- CR

Steven Elmer Hinds , Appellant

v. The State of Texas , Appellee

FROM THE COUNTY COURT OF LAMPASAS COUNTY NO. 21,045 , THE HONORABLE RANDALL J. HOYER , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant Steven Elmer Hinds gui lty of the C lass C misdeme an or offense of attending a n exhibition of cockfighting as a spec tator. See Tex. Penal Code § 4 2.105(b)(6). A ppellant , acting pro se , seeks to have the charg e s a ga inst him dismissed on the ground that sectio n 42.105 , particularly subs ection (b)(6) , of the Texas Penal Code is

unconst itutional

. Id. For the following reason s, we affirm the county court ’ s judgment
of conv iction

.

B ACKGROUND 1

A jury in justice c o urt found appellant guilty of the C lass C misdeme anor offe nse
of att ending a n exhibition of cockfi ghting as a spectator , and t he j ust ice of the p eace a ss essed a

1 Becau se the parties are familiar with the evid ence adduced at trial and appellant does not challenge t he sufficiency of the evidenc e to support his conviction , we do not reci t e the evidence in our an al ysis. See Tex. R. App. P. 47.1.2

fine of $500 and payment of court costs as a ppellant ’ s pu n ish ment

. See id. § § 12.23 (stat ing t hat individual adjudged gui lty of Class C misdem e anor shall be punished by fine not to exceed $500), 42.105 (g) (stating that offense under subsection (b)(6) is C lass C misdeme anor )

.

Appellant appealed t o the county court a nd f iled four motions to dismi ss the
State ’ s case agai nst him ch allenging the cons titutiona lity of crimin alizing co ck fighting

. Before

t rial, the county cour t denied his motions to dis miss . The jury found him guilty , and t he county

cour t assessed the same punishment that the justice c ou r t did

. This ap peal followed.

ANALYSIS
As a preliminary matter, we observe that a ppellant asks this Court “to re nder a decision on each of the arguments presented in all four of [his] duly f iled motion s ” to dismiss that he filed with the county cou rt

. He also st ates that hi s brief “ shall present only the First Amendment arguments however the s eparate M otions t o dismiss are included in this Appeal. ”

Although w e constru e pro se b riefs li berally, we hol d pro se liti ga nts to the same
standards as lic ens ed at torneys and require the m to comply with applicable rules of procedure. Griffis v. State , 441 S.W.3d 599, 612 (Tex. App.

— Sa n Antonio 2014, pet. ref ’ d ); Kindley

v. State , 879 S.W. 2d 261, 264 (Tex. App.

— Hou ston [1 4th Dist.] 1994, no pet.) ; see Tex. R . App

. P. 38.9 . The applica bl e rules require appella nt ’ s brief to set for th clear and concise arguments
with a ppropriate citations to a uthorities and the record. Tex. R. App. P. 38.1(i) ; see Wolfe

v. State , 509 S.W.3d 325, 343 (Tex. Crim. App. 201 7 ) (dis cussi n g appella te briefing requir ements); Lucio v. State , 35 1 S.W.3d 87 8 , 8 96

– 97 (Tex. Crim. Ap p. 201 1 ) (same) ; see also
Bierwirth v . State , No. 03

- 17

- 00314

- CR, 2019 Tex. App. L EXIS 1006, at * 11

– 12 (Tex. App.

—3

Au s tin Feb. 13, 2019, pet . ref ’d) (mem. op., no t des i gnated for pub lication) ( st ating standard s for
ad e quate appellate briefing and collecting cases addressing briefing s tandard s )

.

Holding a ppellant to th e applicable standards , we decline his request to “ re nder a decision on each of the arguments p resent e d in all four of these duly f iled motions ” and limit our analysis to his appellate ar gum ent s , which are based on the First Amendment

. See Te x. R. App.
P. 38.1 (stat ing requirements of appellant’s brief)

. We constru e his issue on appea l to be tha t

sect ion 42. 105(b)(6) is facially unconstitutional because it viola tes “ co nstitutionally protected rights of free exer cise of religion , freedom from re lig ion , freedom of association a nd assembly
found in t he First Amendment by and through the Fourteenth A me ndment of the Un ited States
Co nstitution

. ” See U.S. Const. amend s
. I , XIV. 2

S t andard of R eview

“ A facial challenge is an at tack on a statute i t self as opposed to a par ticular application. ” Peraza v. State , 467 S.W.3d 508, 514 (Tex. Crim. App. 201 5). It requ ires establishing “ that no set of circumstances exists under w hic h that statute would be valid. ” Id.

2 Although appellant states in his brief that he is making facial and as applied constitutional challenge s , the substance of his arg ument appears to be a facial challenge. See State ex rel. Lyk os v. Fi ne , 330 S. W.3d 904 , 91 0 (Tex. Crim. App. 20 11) (explaining that “ as ap plied ” challenge con cedes general constitutiona lity of statute but asserts that it is unconstitutional as applied to defendant ’ s partic ular facts and circumstances a nd that “ a li tigant must show t hat, in its operation, the challenged sta tute was unconstitutional ly ap plied to hi m ; that it may be unconstit utional as to others is not sufficient (or even relevant) ” )

. Appe llant also cites art icle I, sections 1, 2, 3, 3a, 4, 5, 6, 7, 8 , 12, 17, 19, 26, 27, 29 , and 34 of the Texas Constitution , but he does not exp lain how his rights under the Texas Constitution were viola ted or differentiate betwe en rights under the Texas Const itution and the ri ghts that he asserts under the First Amend m ent. See Wolfe v. State , 509 S.W.3d 325, 343 (Tex. Crim. App. 2017) (explaining that “ appella te court is not required to make an appellant ’ s ar guments for her ” (citing Lucio v. State , 351 S.W.3d 878, 898 (Tex. Cr im. App. 2011) ) )

. Thus, we limit our a nalys is to his f acial co nstitut ional challenge based on the First Amendment. See id. ; see also Tex. R. App. P. 38.1

.4

Whether a criminal statute is facially constitutional is a question of law that we revi ew d e novo. Ex parte L o , 424 S.W.3d 10, 14 (Tex. Crim . App. 2013)

. “ Statutes are presumed to be
constitut ional until it is determined otherwise. ” Karenev v. State , 281 S.W.3d 428, 434 (Tex. Crim. App. 2009)

. A person challenging the constitutionality of a statute generally has the burden of establishing i ts unconstit utionality. Peraza , 467 S.W.3d at 514

.
Challenge to Section 42.10 5 (b)( 6 ) The gist of a ppellant ’ s argum ents on appeal is that section 42.105 (b)( 6 ) , as well as
the entirety of section 42. 105 , is unco nstitutional because it violates the F irst Amendment ri ghts
of “ gamecock farmer s ” in their role as propert y owners of chickens

. He explains that his

“ argument focuses on a soc ially disadvantaged group of chicken farmers also called gamecock
fa rmers (cockfighters), and t heir attenda nce at an e vent on private p roperty , ” complains about

“ the excuse of protecting chi cken s ” against the farmer ’ s “ pr ivate property rights , ” an d argue s
that “ [t] he judge in this case has determin ed that chicken s take pre cedence above human rights and are a justified exc use to end anger t he life o f and violate the indi vidual freedoms, protections
and guarantees enshrined in the Constitution of the United States and the Constitution of the
State of Texas to enforce this un co nstitutional law protecting chickens from the farm ers that own
the chi ckens. ” 3

3 Appellant further elaborates : (i ) “ [t] hese laws usurp Ch ristian beli ef s and deprive gamecock farme rs of the free e xer cise of religion and th us freedom to exer c ise th e ‘ dominion ’ (control and rule) which God ga ve man over the an imals, fish and fowl the individual farmer owns all pro perty rights .

. . while simultaneously forcing gamecock farmer s into the relig ious practices of respecting Pagani sm and ani mal worship ” an d (ii) the freedom of religion for Christian s “includes exer cising the dominion of man (control and rule) over the earth, ani mal s, fish and fowl, and the Constitution is written to ensure that each person is equal in the freedom an d exercise of God given r ights as each individual chooses to believe these rights exist. To remove and deny the dominion of the indivi dual over the animals the individual owns is an5 Before we can decide whether section 42.105 and its subsection (b)(6) are
constitut ional, we must first resolve whether appellant has standing to challenge the
constitutiona lity of section 42.105 and subs ection (b)(6)

. See Santikos v. State , 836 S.W. 2 d 631, 633 (Tex. Crim. App. 1992) (ci ti ng Ulster County Court v. Allen , 442 U.S. 140, 154

– 55 (1979)) ;
Meshell v. State , 739 S.W.2d 246, 250 (Tex. Crim. Ap p. 1987)

. To attack the faci al constitutionality of a pe nal statute, a d efenda nt must show that the challenged statute is “ bei ng invoked against him, ” Ex parte Ingram , 533 S.W.3d 887, 892 (Tex. Crim. App. 2017), which generally means that the challenger “ was convicted or charged unde r that portion of the s tatut e
the constituti onalit y of which he questions. ” See State ex rel. Lykos v. Fi ne , 330 S.W.3d 904,
9 09 (Tex. Crim. App. 20 11) (qu oting Ex parte Usener , 391 S.W. 2 d 735, 736 (Tex. Crim. App. 1965))

. A defendant also ordinarily lac ks standing to challenge a statute on the g r ound t hat it may be unconstitutionally applied to the conduct of others. State v. Johnson , 475 S.W.3d 860, 864 (Tex. Crim. App. 2015).

The State ’ s case against appellant and his conviction w ere not based on ap pellant being a farmer who owned game fowl b ut on h is attend anc e as a spectator at an exhibition of cockfighting . Thus, h e h as no t established his st anding to chal lenge other sub s ections o f
section 42.105 , see Lykos , 330 S.W.3d at 9 09 , or to challenge s ub section (b)(6) on the ground
that it may be unconst itutionally applied to farmers who own or breed game fowl , s ee Johnson , 475 S.W.3d at 864

. H is standing is limited to challenging sec tion 42.105(b)(6) in his role as a

s pec tator , and other than summarily stat ing that his First Amendment rights have been violated,

attempt to remove God as the source of rights and force the owner into po li cies and beliefs rooted in the animal worshiping religious beliefs of Paganism based on majoritarism [sic] which is prohibited by t he Const itutions of the United States and Texas

. ”

.6

h e has not cited auth ority that would support his position or explained how his F irst Amendment rights have been violated by his conviction for being a spectator at a n ex hib ition of cockfighting

. Th us, we conclude that his arguments have n ot overcome the p re sumption that section 42.105(b)( 6) is con s t itutional

. See Peraza , 467 S.W.3d at 514

. On this ba sis, we overrule his
issue on appeal

. 4

C ONCLUSION

Having overru led his issue , we affirm the county court ’ s judg ment o f conviction.

__________________ ______ __________________ Melissa Goodwin , Justice
Before Justices Goodwin, Kelly, and Smith
Aff irmed
Filed: July 8, 2021
Do Not Publish

4 To the extent app e llant raise s new ar guments in his reply brief, we d o not cons ider them. Se e Tex. R. App. P. 38.3 (stating that appellant may file reply brief addressing any matter in appell ee ’ s brief) ; Barrios v. State , 27 S.W.3d 313, 322

– 23 (Tex. App.

— Houston [1st Dist. ] 2000, pet. ref ’ d) ( concluding ar gument raised in reply brie f went beyond scope of Tex. R. App. P. 38.3)

.