Court of Criminal Appeals P.O. BOX 12308, CAPITOL STATION AUSTIN, TEXAS 78711 FILE COPY

ABEL ACOSTA CLERK (512)463-1551

SIAN SCHILHAB GENERAL COUNSEL

(f 13) U.J WW SHARON KELLER

PRESIDING JUDGE

LAWRENCE E. MEYERS CHERYL JOHNSON MIKE KEASLER BARBARA P. HERVEY ELSA ALCALA BERT RICHARDSON KEVIN P. YEARY DAVID NEWELL

JUDGES Rl£DIN COJT 0? A?3L^S i2ir Corf ofAppeals Disra

October 07, 2015 12th Court OfAppeals Clerk Cathy Lusk 1517 W. Front, Room 354 Tyler, TX 75701 * DELIVERED VIA E-MAIL * County Attorney Houston County 100N6th Crockett, TX 75835 Carolyn Rains District Clerk POBox 1186 Crockett, TX 75835 * DELIVERED VIA E-MAIL * Re: STATE vs. JOHNSON, TERENCE CCA No. PD-0228-14 Trial Court Case No. 12-06-00189-CR Joshua Thomas Liles 800 N. Mallard St. Palestine, TX 75801 * DELIVERED VIA E-MAIL * Amber N. Bewley Assistant County Attorney 401 E. Houston Ave., 2nd Floor Crockett, TX 75835 * DELIVERED VIA E-MAIL *

COA No. 12-12-00425-CR
The court has issued an opinion on the above referenced cause number Sincerely,

Abel Acosta, Clerk

Supreme Court Building, 201 West 14th Street, Room 106, Austin, Texas 78701 Website www.txcourts.gov/cca.aspxFILED IN COURT OF APPEALS 12tri Court of Appeals District

OCT 082015

TYLER TEXAS PAM ESTES. CLERK


### IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD-0228-14

THE STATE OF TEXAS

v. TERENCE JOHNSON, Appellee
ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE TWELFTH COURT OF APPEALS HOUSTON COUNTY KELLER, P.J., delivered the opinion of the Court in which JOHNSON, KEASLER, HERVEY, ALCALA, and RICHARDSON, JJ., JOINED. ALCALA, J., filed a concurring opinion. MEYERS, J., filed a dissenting opinion. Yeary, J., filed a dissenting opinion. NEWELL, J., dissents. Twenty-six years ago, the United States Supreme Court held that the prosecution ofGregory Lee Johnson under the Texas flag-desecration statute for burning an American flag violated the First Amendment.1 Texas has since revised and renamed the statute, which now provides in part: A person commits an offense if the person intentionally or knowingly damages,

Texas v. Johnson, 491 U.S. 397 (1989).JOHNSON

— 2 

### defaces, mutilates, orburns the flag of theUnited States orthe State ofTexas.2 We hold that the statute is invalid on its face because it is unconstitutionally overbroad in violation
ofthe First Amendment.
I. BACKGROUND
A. The Incident Video-camera surveillance showed two men and one woman walking on a covered sidewalk 

### next to a building. One man jumped towards a hanging United States flag. Then the second man—appellee—reached andjumped for the flag and caused the flag and its staff to come off its postinto hishand. Appellee thenthrew theflag andits staffintothe street. Atalmost the same time that appellee threw the flag into the street, the other man knocked over flower pots along the sidewalk. Upon approaching the surveillance camera, appellee made various hand gestures and
walked out ofview. In a recorded interview that occurred later, appellee explained that he threw the flag because he was "mad." He claimed that he was upset because of racial remarks made about his mother by

a local merchant. B. Trial Proceedings As a result of this incident, appellee was charged by information with violating the Texas flag-destruction statute, TexasPenal Code§ 42.11. Theinformation allegedthat,on or aboutApril 29,2012, appellee did"[ijntentionallyorknowingly damage, deface,or mutilatea flagoftheUnited States by throwing the flag onto the ground/roadway of Highway 19." The information further 

### alleged that this act was not done in conformity with statutes relating to the proper disposal of

Tex. Penal Code § 42.11(a).JOHNSON

— 3 damaged flags. 

### Appellee filed amotion to dismiss theinformation. Atthehearing onthemotion to dismiss, 

### theparties presented argument ontheconstitutionality of theflag-destruction statute, and the State introduced the surveillance video and the recording ofappellee's interview. 

### The trial judge ultimately granted the motion to dismiss. In her order, the trial judge observed that appellee couldhavebeencharged with criminal mischiefunderTexas Penal Code § 28.03, but, becausehis actions involvedthe United States flag, officers chargedhim under § 42.11. 

### Citing Texas v. Johnson1 and UnitedStates v. Eichman,4 thetrialjudge concluded, "[Statutes which criminalize behaviorbecause it specifically prohibits acts againstthe flag of theUnitedStateshave 

### consistently beenfound to be unconstitutional due to therestriction on the Constitutional rights to free speech and expression." Although Texas amended its statuteafter the United States Supreme Court handed down Texas v. Johnson, the trial judge concluded that the current statute contains 

### language similar to the federal statute in Eichman, in which the Supreme Court found a First Amendmentviolation. The trialjudge alsorejectedthe State's argumentthat thedefendant's actions 

### were not speech. "If an action such as burning the flag is protected speech," the trial judge explained, "the action ofthrowing a flag to the ground canalsobe protected] speech. Non-verbal action is expressive, [and] the government maynot prohibitexpression simplybecause it disagrees with the message or the way it is expressed." While the trial judge found the mistreatment of the United States Flag to be "personallyappalling," she concluded that she was "bound to follow the rulings ofhigher courts."
3Seesupra n.1. 4 496 U.S. 310(1990).JOHNSON — 4 C. Appeal 

### The Stateappealed. It contended thatthe statute was constitutional both on its face and as 

### applied to appellee. Withrespect to appellee's facial challenge, the State contended thatappellee had the burden to establish the statute's unconstitutionality and failed to meet that burden. The State 

### contended that appellee had "not presented any evidence, cases, or arguments establishing [the statute's] unconstitutionality, withthe exception of casesthatneverreachedtheissueofwhether the 

### statute inquestion wasunconstitutional onitsface." With respecttoappellee'sas-applied challenge, the Statecontendedthat appellee's conductwasnot expressivebecauseanyone observing his actions wouldbelievemerely thathe wasvandalizing thehardware storethatdisplayed theflagandbecause 

### nothing suggested that appellee wascommunicating anymessage atall. Partofthereason the State believed appellee's conduct was not expressive was that he told the police that he was angryat a merchant from a different store from the one whose flag he vandalized. The court of appeals rejected appellee's claim that the flag-destruction statute was unconstitutional as applied. It concluded that appellee's conduct was not sufficiently imbuedwith elements ofcommunication so as to implicate theFirstAmendment.5 Butthe courtofappeals found that § 42.11 was unconstitutional on its face because it was overbroad in violation of the First Amendment.6 In arriving at its holding, the court researched cases in Texas and other jurisdictions that were handed down after Texas v. Johnson and United States v. Eichman, and the court "found
5 State v. Johnson, 425 S.W.3d 542, 549 (Tex. App.-Tyler 2014). Judge Yeary's dissent 

### says thatthe"statutemostcertainly wasapplied constitutionally underthecircumstances presented here." For reasons discussed later, we do not think that conclusion is self-evident. But appellee did not file a cross-petition complaining about the court of appeals's disposition of his as-applied challenge, so we have no occasion to resolve that claim. 6 Id. at 550-54.JOHNSON

— 5 no casein which an individual was prosecuted under a flagdesecration statute that was determined to be both constitutional on its face and as applied."7 The court of appeals acknowledged that the lack of authority relating to the prosecution of individuals for flag desecration arguably shows a patternofnon-enforcement, but the courtconcluded that the statutewas"not sufficiently narrow to preventa chillingeffecton the exercise of FirstAmendment freedoms" andthat the court was"not 

### permitted to uphold anunconstitutional statute, even ifthere are promises to use itresponsibly."8

II. ANALYSIS
A. The Overbreadth Doctrine 

### The First Amendment protects, among other things, the freedom of speech.9 The First Amendment right to freedom of speech applies to the states by virtue of the Fourteenth Amendment.10 Withrespectto constitutional provisions otherthanthe FirstAmendment, a facial challenge to the constitutionality of a statute can succeed only when it is shown that the statute is unconstitutional in all of its applications.11 And usually, a defendant does not have standing to

7 Mat 551-52. 8 Id. at 553. 9 U.S. Const, amend. I ("Congress shall make no law . . . abridging the freedom of speech."). 10 West Virginia Boardof Education v. Barnette, 319 U.S. 624, 638-39 (1943). 1' Washington State Grange v. Washington State Republican Party, 552U.S. 442,449 &n.6 (2008); State v. Rosseau, 396 S.W.3d550, 557-58 (Tex. Crim. App. 2013). Seealso United States v. Stevens, 559 U.S. 460, 472-73 (2010).JOHNSON

— 6 

### challenge astatute on the ground that itmaybe unconstitutionally applied to the conduct of others.n But under the First Amendment's "overbreadth" doctrine, a law may be declared unconstitutional 

### on its face, evenif it mayhave some legitimate application and evenif theparties before the court


### were not engaged in activity protected by the First Amendment.13 "Ordinarily, the principal advantage oftheoverbreadth doctrine foralitigant is thatitenables himtobenefit from thestatute's unlawful application to someone else."14 The overbreadth doctrine is "strong medicine" that is used "sparingly and only as a last resort.15 The overbreadth ofa statute must be "substantial, not only in an absolute sense, but also



### 12 County Court ofUlster, N. Y. v. Allen, 442U.S. 140,155 (1979); Broadrickv. Oklahoma, 413U.S. 601,610 (1973). Thisgeneralruleofstanding is not the sameas thejurisdictional "injury

### in-fact" standing requirement of Article LU of the United States Constitution. The injury-in-fact 

### requirement entails a showing that aparty has apersonal stake inthe outcome ofthe controversy by requiring that the party's interest be "concrete and particularized" and "actual orimminent" rather than conjectural orhypothetical. Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334,2341 (2014). 

### A prosecution under an allegedly unconstitutional law—like in this case—clearly satisfies that requirement because appellant has been arrested andprosecuted. Id. at 2342 (observing that "an actual arrest, prosecution, or other enforcement action" is notrequired to establish injury in fact so longasthethreatofsuchis sufficiently imminent); Secretary of Marylandv. Joseph H. Munson Co., 467 U.S. 947, 954-55 (1984) (threatofprosecution was sufficient to establish injury in fact). The 

### principle that parties may not assert the unconstitutionality of a law as to others is a prudential standing requirement. Munson, 467U.S. at955("Inaddition tothelimitations on standing imposed by Art. ILT's case-or-controversy requirement, there are prudential considerations that limit the challenges courts are willing to hear" including that the party"mustassert his ownlegal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties."). The 

### jurisdictional injury-in-fact requirement hasno exceptions in federal court, butprudential standing requirements have been relaxed "where competing considerations outweigh any prudentialrationale against third-party standing" suchas in FirstAmendment overbreadth claims. Id. at 956-58. 13 Stevens, 559 U.S. at 473; Sabriv. United States, 541 U.S. 600, 609-10 (2004). 

### 14 Board ofTrustees v. Fox, 492 U.S. 469, 483 (1989) (emphasis in original). 15 New York State Club Ass 'n v. City ofNew York, 487 U.S. 1, 14 (1988); Broadrick, 413 U.S. at 613. See also Exparte Thompson, 442 S.W.3d 325, 349 (Tex. Crim. App. 2014).JOHNSON

— 7 relative to the statute's plainlylegitimate sweep."16 The statutemustprohibita substantial amount of protected expression,17 and the danger that the statute will be unconstitutionallyapplied must be realistic18 and not based on "fanciful hypotheticals."19 The person challenging the statute must demonstrate from its text and from actual fact "that a substantial number ofinstances exist in which the Law cannot be applied constitutionally."20 The Supreme Court "generally do[es] not applythe 'strong medicine' of overbreadth analysis where the parties fail to describe the instances ofarguable overbreadth of the contested law."21 Moreover, the overbreadth doctrine is concerned with preventingthe chillingof protectedspeechandthatconcern"attenuatesas the otherwiseunprotected 

### behavior thatit forbids the State to sanction moves from 'pure speech' toward conduct."22 "Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct that is necessarily associated with speech (such as picketing or demonstrating)."23 Judge Yeary's dissenting opinion suggests that, as a matter ofstate law, we might be free to refuse to entertain overbreadth claims. We do not agree. The dissent relies upon the United States
16 'UnitedStates v. Williams, 553 U.S. 285, 292 (2008). 17 Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002); Thompson, 442 S.W.3d at 349-50.18 Regan v. Time, 468 U.S. 641, 651 n.8 (1984); Thompson, 442 S.W.3d at 350. 19 Stevens, 559 U.S. at 485. 20 New York State Club Ass 'n, 487 U.S. at 14. 21 Washington State Grange, 552 U.S. at 449-50 n.6. 

### 22 Virginia v. Hicks, 539 U.S. 113, 124(2003). 23 Id.JOHNSON

— 8 Supreme Courtcaseof Virginia v. Hicks24 andthe Utah Supreme CourtcaseofProvo City Corp. v. Willden.25 ButHicks itself recognized that whether the claimed overbreadthis substantial enough to result in facial invalidity involves "not standing, but 'the determination of [a] First Amendment 

### challenge on the merits.'"26 And in Secretary ofMaryland v. Joseph H. Munson Co., the United States SupremeCourt made it clear that the overbreadthdoctrineis in fact a part of substantiveFirst
Amendment law: [T]he Secretary urges that Munson should not have standing to challenge the statute as overbroad because it has not demonstrated that the statute's overbreadth is "substantial." The Secretary raises a point of valid concern. . . . The Secretary's concern, however, is one that is more properly reserved for the determination of Munson's First Amendment challenge on the merits. The requirement that a statute be "substantially overbroad" before it will be struck down on its face is a "standing" question only to the extent that if the plaintiff does not prevail on the merits ofits facial challenge and cannot demonstrate that, as applied to it, the statute is unconstitutional, it has no "standing" to allege that, as applied to others, the statute mightbe unconstitutional.27 Moreover, New York v.Ferber contains what appears to be an explicit statement that state courts are bound to apply the First Amendment overbreadth doctrine: "A state court is not free to avoid a proper facial attack on federal constitutional grounds.
... By the same token, it should not be 

### compelled to entertain anoverbreadth attack when not required to do so bythe Constitution."28

24 539 U.S. 113(2003). 768 P.2d 455 (Utah 1989). 25

26 539 U.S. at 120 (quoting Munson, bracketed material in Hicks).

27 467 U.S. at 958-59 (citations omitted). See also Sabri, 541 U.S. at 610 (citing "Monaghan, Overbreadth, 1981 S. Ct. Rev. 1, 24 (observing that overbreadth is a function of substantive First Amendment law)").

28 458 U.S. 747, 767 (1982) (citing Bigelow v. Virginia, 421 U.S. 809, 817 (1975)).JOHNSON

— 9 The dissent relies on the following passage inHicks for the proposition that states may adopt theirownstanding requirements foroverbreadth challenges: "WhetherVirginia'scourtsshouldhave 

### entertained this overbreadth challenge is entirely a matter of state law."29 But these comments appearto relate to the issue of whethera state is bound to apply the narrow standing requirements that exist in federal court, or whether a state may instead have less stringent standing requirements. The Supreme Courtexplained that "the problem" with the Commonwealth's proposal wasthat the Court was reviewing the decision of a state supreme court and state courts are not bound "by the limitations" ofa case or controversy or other federal rules of justiciability even when they address issues offederal law.30 The cited comments, therefore, seem to be a recognition ofthe unexceptional 

### proposition that states can provide defendants more protection than federal law provides.31 The dissent also relies on a passage from Willden32 that appears, on its face, to support the dissent's position. But in that case, the Utah Supreme Court also seems to suggest that a state's leeway with respect to standing involved whether the state could have less stringent standing 

### requirements than those in federal court.33 Regardless of the ambiguity, the Supreme CourtofUtah

29 539 U.S. at 120 (emphasis in original). 30 Id.

31 See Florida v. Powell, 559 U.S. 50, 59 (2010). 32 768 P.2d at 455-56 ("[T]he federal rules on standing
... are not binding on state courts, and the article HI constitutional restrictions and federalistic prudential considerations that have guidedthe evolution of federal court standing law are not necessarily relevantto the development ofthe standing rules that apply to Utah's state courts.") 33 See id. at 456-57 (remarking on the "rather narrow standing doctrines developed by the federalcourts" andquotingthe SupremeCourt's recognitioninNewYork State ClubAss 'n, 487U.S. at 8 n.2, that state courts may "issue advisory opinions or . . . determine matters that would not satisfythe more stringent requirement in the federal courtsthat an actual 'case' or 'controversy' beJOHNSON —10 

### ultimately applied the overbreadth doctrine and found the statute before it to be facially unconstitutional.34 

### InJaynes v. Commonwealth, theSupreme CourtofVirginia addressed andrejected theexact argument made inJudge Yeary'sdissent.35 TheVirginia courtremarked that,onits face andwithout context, the cited passage from Hicks "appears to support the rule of standing advocated by the Commonwealth. In a nutshell, that rule would be that state courts are not required to apply the same 

### standing requirements to a claimant who raises a FirstAmendment overbreadth challenge to a state statute in a state court as would be accorded a claimant in a federal court considering a similar First Amendment overbreadth claim."36 "However," the court responded, "when viewed in the context 

### of the standing issue actually presented in [Hicks], and the longstanding Fourteenth Amendment jurisprudence by which FirstAmendment rights aremadeapplicable in statecourtproceedings, we 

### disagree with theCommonwealth's arguments."37 Virginia's high court noted this colloquy, which took place in the Hicks case during oral argument beforethe United States Supreme Court: QUESTION: The issue is whether - whether [Virginia] adopted a broader interpretation under State law than Federal law would require. [ANSWER]: That is correct. A - a State may well be able to adopt a broader interpretation of standing than this Court requires, but it cannot adopt a narrower interpretation. Itcannot disregard this Court's direction thatyougive overbreadth standingaccording to theFederal constitutional standards. . . . presented for resolution"). 34 Willden, 768 P.2d at 455, 458-59. 35 276 Va. 443, 454, 666 S.E.2d 303, 308 (2008). 36 Id. at 455, 666 S.E.2d at 309. 37 Id.JOHNSON —11 QUESTION: And if theywere correctabout what our standingrules are, theywould have to follow those standing rules, wouldn't they? They could not apply a narrower

... basis for standing, could they? [ANSWER]: That is absolutely correct, Your Honor. The State supreme court has no discretion to disregard this Court's application ofthe FirstAmendment through its overbreadth doctrine?* The Supreme Courtof Virginiafurther observed thatthe overbreadth doctrine is a matterof substantive First Amendment law, and as such, it is "a constitutional exception to state and federal 

### rules ofstanding that would otherwise limit a party to anas applied challenge to a statute."39 That court also discussedthe facts and proceduralposture ofHicks, and it concludedthat it was clear that in Hicks the Supreme Court addressed the issue of First Amendment standing"only in the context by which that issue was placed before the Court: whethera state's expansion of FirstAmendment 

### standing was subject to review by federal courts."40 Analyzing the passage in Hicks where the Supreme Court stated "[w]hether Virginia's courts should have entertained this overbreadth challengeis entirelya matter of state law," theJaynes court foundthat "the term 'this' plainlylimits the standingissue to what was before the Court in that case: an expansion,not a restriction, of state court standing."41 We agree. Moreover, it is difficult to understand how the overbreadth doctrine could ever be applied byanycourt to invalidatea state law in its entiretyif the doctrineis not itself a federalconstitutional

38 Id. at 456-57, 666 S.E.2d at 310 (quoting Oral Arg. Tr., Virginia v. Hicks,No. 02-371, at 5 (Apr. 30, 2003)) (bracketed material and emphasis in Jaynes). 39 Mat 458, 666 S.E.2d at 310-11. 40 Id. at 457, 666 S.E.2d at 310 (emphasis in Jaynes).
41 Id.JOHNSON

— 12 doctrine that the state courts have to follow.42 This status of overbreadth as a substantive constitutional doctrine is similarinthatrespecttoFourth Amendment expectation-of-privacy issues, 

### which can be characterized as involving "standing," but are more accurately viewed as part of substantive Fourth Amendment law.43 No one would claim, for example, that a state court can decline to entertain the Fourth Amendment claims ofan overnight guest on the ground that overnight 

### guests simply do not have standing in state court under state law.44 Judge Yeary's dissent attempts to draw a distinction between the substantive rule of overbreadth and aprocedural rule ofoverbreadth that accords liberalized standing. Heclaims that hewould notchange the substantive rulebutwould merely restrict which litigants could successfully 

### bring a First Amendment overbreadth claim in state court. But we are not confronted with the question ofwhether a claim confers standing sufficient to allow the individual to appear in court.

42 SeeDickerson v. UnitedStates,530 U.S. 428,438 (2000) (holding that "first and foremost 

### of thefactors" supporting the conclusion that"Miranda is a constitutional decision" isthatthecase 

### applied the rule to "prosecutions arising in state courts"); NAACP v. Button, 371 U.S. 415,432-33 (1961) (recognizing the application of overbreadth doctrine to state laws and explaining that, "[bjecause FirstAmendment freedoms needbreathing space to survive, government mayregulate in the area only with narrow specificity"). 43 SeeRakasv.Illinois,439U.S. 128,139-40(1978)(citationsomitted) (reaffirminggeneral 

### standing principles but stating that "this Court's longhistory ofinsistence thatFourth Amendment 

### rights arepersonal innature has already answered many ofthese traditional standing inquiries, and we think that definition ofthose rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing") (citations omitted); State v. Klima, 934 S.W.2d109, 110 (Tex. Crim.App. 1996) (recognizing that"the application ofFourth Amendment 

### rights arepersonal in nature and are invariably intertwined withthe concept of standing"). 44 See Minnesotav. Olson,495 U.S. 91, 96-97 (1990). See also Jaynes, 276 Va. at 458,666 

### S.E.2d at 311 (TheCommonwealth's view "is an untenable position because the rightto assert the 

### protection oftheFirstAmendment (by overbreadth orotherwise) cannomore berestrictedbya state rule ofstanding thantheexclusionary rule applied to impermissible searches andseizures could be limited by state evidence law.").JOHNSON —13 This is not a civil lawsuit filed by a person seeking to invoke a court's jurisdiction on a First Amendmentclaim.45 This case—a criminalprosecution—is the State'saction. The Statehas already invoked the jurisdiction of the courts, with the flag-destruction statute being the basis for that invocation. As a result, the trial court had authority to decide the case, and authority to review that 

### decision onappeal was conferred byChapter 44ofthe Code ofCriminal Procedure.46 Appellee has simply defended against the State's action by substantivelychallengingthe facial constitutionality ofthe flag-destruction statute. The trial court agreed and dismissed the information, and it is the State that now seeks the intervention of this Court to overturn the trial court's substantive legal decision. Ifaccepting the overbreadth doctrine as a matter ofsubstantive federal constitutional law means anything, it means, at the least, that a criminal defendant can defend himself in a criminal prosecution by challenging the constitutionality of the statute defining the crime with which he is charged. The dissent says that this violates the Separation of Powers clause of the Texas

45 Nor is the present case even a habeas action, which might at least arguably be said to affirmatively invoke a court's jurisdiction, although it might also be characterized as a vehicle for challenging the State's criminal action, especially when invoked at the pretrial stage. See Exparte Rieck, 144 S.W.3d 510,515 (Tex. Crim. App. 2004) (discussing differing ways ofcharacterizing the nature ofhabeas proceedings). 46 See Tex. Code Crim. Proc. arts. 44.01, 44.02. The Supreme Court has recognized that the posture of the case before the court—how the action came before it and which party is complaining—can affect the existence ofstanding. See Hicks, 539 U.S. at 120-21 ("Because it is the Commonwealth ofVirginia, not Hicks, that has invoked the authority ofthe federal courts by petitioning for a writ ofcertiorari, our jurisdiction to review the First Amendment merits question is clear
.... The Commonwealth has suffered, as a consequence ofthe Virginia Supreme Court's 'final judgment altering tangible legal rights,'
... an actual injury in fact—inability to prosecute Hicks for trespass—that is sufficiently 'distinct and palpable' to confer standing under Article HI.

... We accordingly proceed to that merits inquiry, leaving for another day the question whether our ordinary rule that a litigant may not rest a claim to relief on the legal rights or interests of third parties . . . would exclude a case such as this from initiation in federal court.") (emphasis added).JOHNSON —14 Constitution,47 but "[t]he power to determinethe validity of an Act ofthe legislaturerests with the
Courts."48 The dissent also contends that allowing an overbreadth claim by a person who cannot show that the statute is unconstitutional as to him invites us to assume the power to issue advisory opinions and that we are without power to do that. The United States Supreme Court, which recognizes overbreadth claims, is also—under Article HI ofthe United States Constitution—without power to render advisory opinions.49 By holding that overbreadth is an exception to a prudential rule of 

### standing, ratherthanto jurisdictional standing underArticle HI,50 the Supreme Courthaseffectively heldthatthe overbreadth doctrine doesnot giveriseto advisory opinions.51 Evenif we coulddepart from Supreme Court precedent in deciding whether to recognize overbreadth claims, we do not see any reason to construe "advisory opinions" to mean something different under state law than it does in the Supreme Court's jurisprudence. There is nothing advisory or hypothetical about the consequence of a criminal defendant prevailing on an overbreadth challenge to the statute that

47 See Tex. Const, art. H, § 1. 48 ExparteHalsted, 147 Tex. Crim. 453, 457, 182 S.W.2d 479, 482 (1944). 49 See Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 516 (2007) (No justiciable controversy exists under Article ITI of the United States Constitution when the parties ask for an advisory opinion.). See supra n. 12. 50 51 See also Federal Election Commission v. Akins, 524 U.S. 11, 24 (1998) (indicating the injury-in-fact requirement of Article HIprevents advisory opinions); Savagev. Gee, 665 F.3d 732, 740 (6th Cir. 2012) (holding that overbreadth claimant must still show that enforcement of the challengedstatuteagainsthim is actualor imminentand quotingPrime Media v. City of Brentwood, 485 F.3d 343,350 (6th Cir. 2007): "Because overbreadth creates an exception only to the prudential standing inquiry, the Supreme Court has made clear that the injury in fact requirement still applies to overbreadth claims under the First Amendment.").JOHNSON

— 15 defines the charged offense—the case against him is dismissed. B. The State's ArgumentsThe State contends that appellee has failed to meet his burden to show that the flagdestruction statute is substantially overbroad by its text and has a substantial number of unconstitutional applications in actual fact. With respect to the text, the State contends that the statuteis a legitimate content-neutral lawbecause it does not expressly restrict speech and because it punishes any kind of damage or destruction to a United States or Texas flag, regardless of the actor's motive. The State further contends that the amount ofprotected speech covered by § 42.11 is "minimal whencomparedto the non-expressive conductlawfullyprohibited" andthat anyrisk of


### a chilling effect is "dwarfed bythe number oflawful applications" ofthe statute.52 With respectto whetherthe statutehas a substantialnumberofunconstitutional applications in actual fact, the State contendsthat appelleehas failed to "provide examples of actualpeople who have been deterred from engaging in protected speech or conduct." The State further contends that the courtof appealsconcededthat the absenceof evidenceof prosecutionunderthis statutearguably 

### shows a pattern ofnon-enforcement.53 TheStateargues thatthe statute produces no chilling effect because "the average citizen generally understands that burning a flag as part of expressive speech


### or conduct is protected by the United States Constitution."54 The State also contends that appellee's conduct was not protected by the First Amendment
52 At oral argument, the State claimed that "almost all" ofthe conduct the statute covers is outside the First Amendment's protection.

53 See Johnson, 425 S.W.3d at 553. 54 State's brief quoting id. at 552 (quoting Roev. Milligan,A19 F. Supp. 2d 995, 1007(S.D. Iowa 2007)).JOHNSON —16 because it was not expressive: Appellee's conductinsteadconstituted an act of criminalmischiefwithno intent to conveyany particularized message. Indeed, according to appellee, he did not even expectthe flag to come off its staff and into his hand when hejumped and reached 

### forit. Appellee attempted to explain his conductbyclaiming hewasmad [at] alocal merchant. However, in no way did his actions relay that he was angry with a local merchant. In fact, the flag that he threw onto the highway was in front of a different store than the one appellee claimed to be angry with. Further, there was no element of speech in his conduct. The veryway appellee committed his crime was random in nature.55 

### During oral argument, the State suggested that the flag-destruction statute was "reallyjust criminal mischiefin relation to the flag." The State argued that a punishment provision with respect 

### to conduct directed against the flag—similar to current provisions that enhance punishment for damage to churches and public monuments—could have been included in the criminal-mischief statute.56 If the flag-destruction statutesweeps too broadlybypunishing someone whodamageshis
ownflag, the Statefurther argued, the statutecouldbe narrowly construedto applyonlyto situations in which the conduct would actually constitute criminal mischief, i.e. damage to someone else's property.57
C. The Statute
1. The Text "The first step in overbreadth analysis is to construe the challengedstatute; it is impossible

55 Citations omitted, some capitalization changed. 56 See Tex. Penal Code § 28.03(f) (state-jail felony punishment if criminal mischief 

### involves "placeofworship orhuman burial, apublic monument, oracommunity centerthatprovides medical, social, or educational programs"). 57 See id. § 28.03.JOHNSON —17 

### to determine whether a statute reaches toofarwithout firstknowing whatthe statute covers."58 The Texas flag-destruction statute provides: (a) A person commits an offense if the person intentionally or knowingly damages, defaces, mutilates, or burns the flag ofthe United States or the State ofTexas. (b) In this section, "flag" means an emblem, banner, or other standard or a copy of an emblem, standard, or banner that is an official or commonly recognized depiction ofthe flag of the United States or ofthis state and is capable ofbeing flown from a staff of any character or size. The term does not include a representation of a flag on a written or printed document, a periodical, stationery, a painting or photograph, or an article ofclothing or jewelry. (c) It is an exception to the application of this section that the act that would otherwise constitute an offense is done in conformity with statutes of the United 

### States or of this state relating to theproper disposal ofdamaged flags.59 Unlike its predecessor,60 the current statute narrowly defines what is meant by a "flag," and it excludes certain depictions of a flag from its reach. For example, the current statute avoids past controversies regardingtherepresentation of a flagon clothingby explicitlyprovidingthat suchdoes not count as a flag.61 The current statute also differs from its predecessor in that it does not require 

### that the actor be aware of the likely impact of his conduct on others.62

58 Williams, 553 U.S. at 293. 59 Tex. Penal Code § 42.1 l(a)-(c). The statute also provides that the offense is a Class A misdemeanor. Id. § 42.11(d). 60 See Tex. Penal Code § 42.09(a)(3) (West 1988) ("A person commits an offense ifhe intentionally or knowingly desecrates
... a state or national flag.") 61 See Smith v. Goguen, 415 U.S. 566 (1974) (United States flag sewn to the seat of defendant's trousers); Delorme v. State, 488 S.W.2d 808 (Tex. Crim. App. 1973) (same). 62 See Tex. Penal Code § 42.09(b) (West 1988) ("For purposes ofthis section, 'desecrate' means deface,damage,or otherwisephysicallymistreat in a way that the actorknows willseriously offend one or more persons likely to observe or discover his action") (emphasis added).JOHNSON

— 18 The current Texas statute also circumscribes the type of conduct toward a flag that is 

### proscribed. The statute prohibits only physical mistreatment that alters or damages a flag. The 

### statute does not apply to words spoken that are critical ofthe United States or Texas flag,63 nor does the statute apply tophysical acts that do not alter ordamage a flag.64 2. Narrowing Construction? The federal constitution affords the states broad authority to construe a statute narrowly to avoid a constitutional violation.65 At the outset, we will assume that the flag-destruction statute 

### applies only to acts that physically damage a flag.66 The State argues that the statute may be construed to apply only to conduct that would otherwise constitute criminal mischief, that is, conduct that damages someone else's flag (without 

### consent).67 Wedecline to impose sucha narrowing construction because nothing in thelanguage of the statute supports it. Onthecontrary, thetextof thestatute isunambiguously broadinthisrespect, 

### applying to the conduct of intentionally or knowingly damaging any United States or Texas flag, regardless of who owns the flag and whetherthat ownerhas consented to the conduct.

63 See Streetv.New York, 394 U.S. 576 (1969) (holdingunconstitutional, as applied, a statute that punished words that cast contempt on the flag of the United States). 64 See People v. Meyers, 23 111. App. 3d 1044, 1045, 321 N.E.2d 142, 143 (5th Dist. 1974) (defendant seen lying on American flag in a public park). 65 Osborne v. Ohio,495 U.S. 103, 115 n.12, 119-21 (1990); Thompson, 442 S.W.3dat339. 66 Although the currentstatutemakes it an offense to, among otherthings, "deface"a flag, we will assume that the term "deface" can be narrowly construed to not apply to temporary attachments to a flag. See Spence v. Washington, 418 U.S. 405 (1974) (involving a peace symbol made ofremovable black tape attached to a United States flag).

67 See Tex. Penal Code § 28.03(a).JOHNSON —19 Although a Texas court has a duty to employ, if possible, a reasonable narrowing construction to avoid a constitutional violation, such a construction should be employed only ifthe statuteis readilysusceptible to one.68 "We maynot rewrite a statutethat is notreadily subjectto a narrowing construction because such a rewriting constitutes a serious invasion of the legislative domain and would sharply diminish the legislature's incentive to draft a narrowly tailored statute in the first place."69 A law is not readily subject to a narrowing construction if its meaning is unambiguous.70 We should be wary of reading into a statute a narrow meaningnot supportedby its 

### language because such a construction may later be rejected as untenable.71 Moreover, when the statute is unambiguous, the public at large will not necessarily be on notice that the law means something other than exactly what it says. Instead, we should act in accordance with our usual rules ofstatutory construction and construe a statute in accordance with unambiguous language absent a finding ofabsurd results.72 Consequently, weconstruetheflag-destruction statutein accordance with the text's unambiguously broad command against intentionally or knowingly damaging any United

68 Thompson, 442 S.W.3d at 339; Longv. State, 931 S.W.2d 285, 295 (Tex. Crim. App. 1996). See also Stevens, 559 U.S. at 481. 69 Thompson, 442 S.W.3d at 339. See also Long, 931 S.W.2d at 295; Stevens, 559 U.S. at 481. 70 Thompson, 442 S.W.3d at 339; Olvera v. State, 806 S.W.2d 546, 553 (Tex. Crim. App. 1991). 71 See Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014) (disavowing statement in Scott, made in context of First Amendment challenge, that statutory term "repeated" could be narrowly construed to apply only to activity occurring in close enough proximity to properly be termed a single episode). 72 Thompson, 442 S.W.3d at 339-40. See also Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).JOHNSON

— 20 States or Texas flag.73 D. Sweep ofthe Statute under its Text 1. UnconstitutionalApplications 

### TheSupreme Courthasrecognized thattheconduct ofintentionally orknowingly damaging a UnitedStatesflagis not inherently expressive.74 As a result, a statutethatproscribes suchconduct will at least theoreticallyapply to some circumstances that do not implicate the First Amendment. The question is whetherthe applications of such a statute that do implicate (and violate) the First
Amendment are so substantial that the statute must be held invalid on its face. It is clear that the Texas flag-destruction statuteviolatesthe First Amendmentwhen applied to some circumstances. In Texas v. Johnson, the Supreme Court found that the former flagdesecration statute was applied in violation of the First Amendment when the State punished a 

### person who burned aUnited States flag aspart ofaprotest against the Reagan Administration.75 The flag-desecration statute made it an offense to "intentionallyor knowingly desecrate[]
... a state or national flag," with "desecrate" being defined to mean to "deface, damage, or otherwisephysically
73 See also Snider v. City of Cape Girardeau, 752 F.3d 1149, 1158-59 (8th Cir. 2014) (decliningto limit Missouri flag-desecration statuteto non-expressiveconductgiventhe absenceof languageto suggestsuch a limitation); State v. Janssen, 213 Wis. 2d 471,480-82,570 N.W.2d 746, 751 (Ct.App. \991),aff'd, 219Wis. 2d 362, 580N.W.2d260 (1998) (declining to limitWisconsin statuteto non-expressiveconductinpartbecausethe statute' s"plainreadingprohibitsall intentional and public acts of defiling, mutilating, and casting contempt on the flag; it does not distinguish non-expressive conduct"). 74 Johnson, 491 U.S. at 403 n.3 ("A tired person might, for example,drag a flag throughthe mud, knowingthat this conduct is likelyto offendothers,and yethave no thoughtof expressingany idea."), 405 ("We have not automaticallyconcluded,however, that any action taken with respectto our flagis expressive. Instead, incharacterizing suchaction forFirstAmendment purposes, wehave considered the context in which it occurred."); Thompson, 442 S.W.3d at 334. 75 491 U.S. at 399, 418-20.JOHNSON

— 21 mistreat in a way that the actor knows will seriously offend one or more persons likely to observe

or discover his action."76 The Court concluded that whether the defendant's treatment ofthe flag 

### violated Texas law depended on"thelikely communicative impactofhis expressive conduct."77 The Courtfurther concluded that sucha restriction on expression was content based.78 The Court then considered the State's asserted interest in "preserving the flag as a symbol ofnationhood and national unity."79 This interest was found to be insufficientto justify a contentbased restriction because "[i]fthere is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simplybecause societyfinds the idea itself offensive or disagreeable" and the Court has "not recognized an exception to this principle even where our flag has been involved."80 The State argued that, even if the flag's symbolic role does not allow the State to prohibit words or some expressive conduct critical of the flag, it does 

### allow the State "to forbid theoutright destruction of theflag."81 TheCourtrejected this distinction, sayingthat it "is of no moment where the nonverbal conduct is expressive, as it is here, and where 

### the regulation of thatconduct is related to expression, as it is here."82 The State's "focus on the precise nature of the defendant's expression, "missefd] the point" of the Court's prior decisions:

76 See id. at 400 n.l (quoting Tex. Penal Code § 42.09 (1989)). 77 Mat411. 78 Id. at4\2. 79 Mat413. 80 Id. at 414. 81 Mat 416. 82 Id.JOHNSON

— 22 "their enduring lesson, that the government may not prohibit expression simply because it disagrees 

### with its message, isnot dependent onthe particularmode inwhich one chooses toexpress anidea."83 "Ifwe were to hold that a State may forbid flag burning wherever it is likely to endanger the flag's symbolicrole," the Court continued, "but allow it whereverburning a flag promotes that role" then "[w]e would be permitting a State to 'prescribe what shall be orthodox'" in violation of the First Amendment.84 Although the current flag-destruction statute differs somewhat from the flag-desecration
statute considered in Texas v. Johnson, it is similar to the statute considered in United States v. Eichman. In Eichman, the federal flag-protection statute made it a crime if a person "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States" unless the conduct consists of "the disposal of a flag when it has become
worn or soiled."85 The Government relied heavily on the fact that, unlike the statute in Texas v. Johnson, the federal statute did not require the actor to have any intent or knowledge with respect to whetherhis actions wouldseriouslyoffend onlookers.86 The Supreme Court was not persuadedthat this fact made any difference: "Although the Flag Protection Act contains no explicit contentbased limitation on the scope ofthe prohibited conduct, it is nevertheless clear that the Government's 

### asserted interest is related to the suppression offree expression."87 "The Government's interestin

83 Id. 84 Id. at 416-17. 85 496 U.S. at 314. 86 Mat 315. 87 Id. (internal quotation marks omitted)JOHNSON

— 23 protecting the physical integrity of a privately owned flag," the Court explained, "rests upon a 

### perceived need to preserve the flag's status as asymbol ofourNation and certain national ideals."88 Eachof the actsthatwereprohibited bythe statute, withthepossibleexception of"burns," connoted


### a disrespectful treatment of the flag, and the explicit exception for the disposal of soiled flags 

### protected "certain acts traditionally associated with patriotic respect for the flag."89 Consequently, the statute wasan impermissible content-based restriction ofspeech whenapplied to a personwho 

### used the mistreatment of a flag as a method ofexpressing an idea.90 Though the flag-destruction statute before us is not limited solely to expressive conduct, Eichman teaches that, when this type of statute does apply to expressive conduct, it is an 

### impermissible content-based restriction. As in Eichman, the present Texas statute contains an exemption forconduct associated with theproper disposal of a flag. So,as inEichman, thepresent 

### statute distinguishes between disrespectful and respectful conduct that damages aflag.91 And while the Texasstatutedoesnot requirethatthe disrespectful conductbe expressive, suchconductis very 

### likely to be expressive in a given casebecause of the symbolism associated with flags. Flags are 

### "[p]regnant with expressive content," and the United States flag "readily signifies this Nation."92

88 Id. at 315-16. 89 Id. at 317. 90 Id. at 317-19. 

### 91 Judge Yeary's dissenting opinion says that the legislature enacted the flag-destruction statute in its current form after Texas v. Johnson in "an attempt to cure potential constitutional 

### problems with that law." But the Supreme Courtissued its opinion in Eichman after the current statute was enacted, and it is Eichman, more than any other case, that guides our decision today. 92 Johnson, 49\ U.S. at 405.JOHNSON

— 24 The statutory language clearly applies to those who damage a flag ofthe United States or Texas as a means of communicating a message (e.g. of protest against the United States or Texas). The only ascertainable purpose of a law as broadly worded as the present one—which applies even when the actor damages his own flag—is to protect the integrity of the United States flag or Texas flag as a symbol.93 2. Expressive Applications Predominate The State contends that the number of lawful applications of the flag-destruction statute dwarfs its unlawful applications, but, aside from the present case, the State does not attempt to describe the lawful applications to which the statute theoretically applies. We are aware oftwo typesof situations suggested by the caselaw that might involve lawful applications to conduct that is nonexpressive,but the nature of both situations suggeststhat prosecutionsfor them will be uncommon, which in turn suggests that the legitimate reach ofthe statute is narrow. Thefirstis conducttowarda flagthatis hidden or secretive.94 Themorehiddenthe conduct, 

### arguably thelessexpressive it islikelytobe,95 butas conductbecomes more hidden, it alsobecomes

93 See Eichman, 496 U.S. at 315-16. The natural symbolism ofthe flags, the discrimination between respectful and disrespectful treatment ofthe flags, and the fact that the obvious legislative purpose is one that is directed at expression distinguishes the statute at issue here from the disorderly-conduct provisions cited in Judge Yeary's dissenting opinion. See above discussion of Eichman. As will be seen below, the offense of flag destruction also differs from these offenses because prosecutions for flag destruction have typically been directed at expressive activity. 94 See Carpenter v. State, 597 So. 2d 757, 758 (Ala.Crim.App. 1992) (soiledflagwadded up in coat pocket). 95 But see Stanley v. Georgia, 394 U.S. 557 (1969) (First Amendment protects viewing obscenity in the privacy ofthe home).JOHNSON

— 25 

### less likely to be discovered, andthus less likely to be prosecuted.96 If theconduct toward a flag is completely hidden, it will likelybe onlyby unusual happenstance that a prosecuting authority will be alerted to the situation.97 The second type of situation involving potentially non-expressive conduct involves the personwhoacts disrespectfully towarda flagwitha casualor cavalierattitudebutwithoutintending to communicate a message. The hypothetical described by the Supreme Court was that of "a tired 

### person" whomight"draga flagthrough themud, knowing thathisconduct is likely to offend others, and yethaveno thought ofexpressing anyidea."98 TheCourtoffered this hypothetical merely as a "possibility"that mightbe prosecuted underthe formerTexas statutethat was analyzed in Texas v. 

### Johnson." We agree with other courts that this scenario is anunlikely one.100 Most conduct that falls within the provisions of the statute and that would come to the

96 See Wayte v. United States, 470 U.S. 598,612-14 (1985) (discussing passive-enforcement policy of prosecuting those who report their refusal to register for selective service or who are reported and recognizing that Government can more easily prosecute those who openly and obviously violate the law). 97 See Carpenter, 597 So. 2d at 758 (soiled flag wadded up in coat pocket discovered after defendant was arrested for littering and desecrating a Post Office). 98 Johnson, 491 U.S. at 403 n.3. 99 Id. The Court declined to address the constitutionality ofsuch a prosecution because it could decide the case before it on narrower grounds. Id. 100 Snider, 752 F.3d at 1158 (calling it an "unlikely hypothetical" and holding the Missouri flag-desecration statuteunconstitutionallyoverbroad); Commonwealth v. Bricker, 542Pa. 234,246, 666 A.2d 257, 263 (1995) (citing footnote 3 ofJohnson and stating, "We hold open the possibility that there are narrow categories in which the flag is used in a non-expressive manner and, in this regard, the United States Supreme Court agrees.").JOHNSON

— 26 attention ofthe authorities wouldconstitute protected expression.101 Theassessment of Wisconsin's 

### highcourtregarding itsownflag-desecration statute seems to apply equally to the statute before us: "Although theremaybe constitutionally permissible applications^]
... thenumber ofinstances in which the law couldbe applied to unprotected behavior is small in comparison to the number of 

### instances in which itmay be applied to expression protected bythe First Amendment."102 3. Criminal Mischief Not Relevant 

### The Stateargues that the flag-destruction statute essentially penalizes criminal mischiefin relationto the flag, but we disagree. Criminal mischief, as defined in Texas, occurs when a person 

### intentionally orknowingly damages, destroys, tampers with, ormakes markings onproperty "without the effective consent ofthe owner."103 As we have already explained, the flag-destruction statute 

### applies even when someone damages his own flag.104
101 Judge Yeary's dissenting opinion contends that this conclusion is not a proper consideration in an overbreadth analysis because the doctrine "as it is currently enforced by the 

### Supreme Court, requires an examination of the statute itself, and not merely the potential or hypothetical FirstAmendment uses" of the conduct proscribed by the statute. But, as the dissent seems to concede, an examination of the statute and ofthe possible uses of the conduct proscribed 

### bythestatute arenotmutually exclusive inquiries. Asweexplained earlier, theoverbreadth doctrine contemplates a showing, fromthe text and fromactualfact, "that a substantial numberofinstances exist in which the Law cannot be applied constitutionally." New York State Club Ass 'n, 487 U.S. at 14. Examining the probable First Amendment uses of conduct proscribed by the statute is a necessary step in answering such an inquiry. 102 State v. Janssen, 219 Wis. 2d 362, 387, 580 N.W.2d 260, 270 (1998). Although the Wisconsin statute was broader than the current Texas statute, the Supreme Court of Wisconsin found it to beunconstitutionally overbroad evenwhennarrowed to reachonlyconductthatdefiledthe flag through purely physical acts. Id. at 382, 580 N.W.2d at 268.

103 Tex. Penal Code § 28.03(a). 104 It is indisputably true that a person who damages someone else's flag without consent 

### could validly bepunished undera general criminal mischief statute such as Penal Code § 28.03. See Johnson, 491 U.S. at 412 n.8 ("[N]othing in our opinion should be taken to suggestthat one is freeJOHNSON

— 27 Furthermore, when considering the possible legitimate applications ofthe flag-destruction statute, there are two reasons that we should not count cases that amount to criminal mischief: the flag-destruction statutedoesnotrequiretheStateto showthattheperson's conducttowarda flagwas an act ofcriminalmischief,105 and nothing preventsthe State from prosecutinga person under both

to steal a flag so long as one later uses it to communicatean idea."). Some of the Supreme Court's cases arguably supporta conclusion that the Statecould validlyenhance punishment for someone who commits criminal mischief on the basis that the property damaged was a United States flag because damage to suchproperlyis an especially egregious form ofcriminal mischief, involving a greaterharmto the flag's ownerthan its monetary valuewouldindicate. See Virginia v. Black, 538 U.S. 343, 363 (2003) ("The First Amendment permits Virginiato outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. 

### Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence."); Wisconsin v. Mitchell, 508U.S.476,487-88 (1993) (Statute doesnotviolate First Amendment when it "singles out for enhancement bias-inspired [assaultive] conduct because this conduct is thought to inflict greater individual and societal harm."). In any event, the Supreme Court has explicitly recognized the government's power to protect publicly owned flags. Eichman, 496 U.S. at 316 n.5 ("Today's decision does not affect the extent to whichtheGovernment's interest in protecting publiclyowned flags mightjustify specialmeasures on their behalf."); Spence, 418 U.S. at 409 ("We have no doubt that the State or National Governments constitutionally may forbid anyone from mishandling in any manner a flag that is public property."). It is primarily for this reasonthat we find Judge Meyers's "mockingbird" analogy unpersuasive. A mockingbird (like a bald eagle) is a wild animal that belongs to the public. It is a finite natural resource, and a government may choose to protect it. See State v. Bartee, 894 S.W.2d 34,41 (Tex. App.-San Antonio 1994, no pet.) (unanimous panel op. by John F. Onion, Jr.) ("History reveals a long recognition of common ownership in game and wild animals and its developing subjectivity to governmental authority."). To the extent that a mockingbird or bald eagle can be analogized to a flag at all, they would be analogous to a public flag. A statute that punished the destruction of a depiction ofa mockingbird or bald eagle might, however, raise First Amendment

concerns. 105 See Johnson, 491 U.S. at 412 n.8 ("There was no evidence that Johnson himselfstole the flagheburned... nor did the prosecution or the arguments in supportof it depend on thetheorythat the flag was stolen
.... We also emphasize that Johnson was prosecuted only for flag desecration—not for trespass, disorderly conduct, or arson.").JOHNSON

— 28 

### the flag-destruction andcriminal-mischief statutes.106 The criminal-mischiefaspect of an actor's conductis a red herring in a constitutional analysis of the flag-destruction statute: by allowing for


### a separate prosecution and penalty in addition to that authorized for criminal mischief, the flag

### destruction statute enables the State to separately penalize the actor's expression.107 However,even if we assumedthat the flag-destruction statute could legitimatelybe applied

106 See Cullen v. State, 832 S.W.2d 788, 791-92 (Tex. App.-Austin 1992, pet. refd) (in 

### prosecution for the poisoning of the historic Treaty Oak in Austin, rejecting claim that the desecration-of-venerated-object and criminal-mischief statutes must be read in pari materia to 

### require prosecution onlyunder the former). Cullen addressed the predecessor to the current flagdestructionstatute,but itsreasoningis equallyapplicableto the present statute.The flag-destruction and criminal-mischiefoffenses are not the same underthe Blockburger same-elements test, and other factors do not suggest that the legislature intended the offenses proscribed by those statutes to be treated as the same. See id. at 792 ("These two statutes are contained in different legislative acts, address differingsituations,require different elements ofproof, and serve differentobjectives. We believethe legislature intendedto definetwo separate offenses withdifferent elements anddifferent levels ofpunishment. It follows that section42.09 is not a special subset of the general offenseof criminal mischief."); Blockburger v. United States, 284 U.S. 299, 304 (1932) ("[W]here the same act or transaction constitutes a violation oftwo distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."); Exparte Ervin, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999) ("TheBlockburger test is a useful tool for ascertaining legislative intent,but it is not the only tool. Other . . . considerations [are] relevant to determining whether the Legislature intended multiple punishments ...."). We further note that the predecessor statute at issue in Cullen also penalized the desecration ofpublic monuments and places ofworship or burial. See Cullen, 832 S.W.2d at 792; Tex. Penal Code § 42.09 (West 1988). Those portions ofthe statute were later moved to the criminal mischief statute to enhance the level of the offense. See Tex. Penal Code § 28.03(f) (current). The legislature has not, however, codifieda criminal-mischiefenhancement basedon destruction of the flag. See Tex. Penal Code § 28.03, passim. 107 SeeR.A. V. v. City of St. Paul, 505 U.S. 377,385 (1992) ("The proposition that a particular instance of speech can be proscribable on the basis of one feature (e. g., obscenity) but not on the basis ofanother(e.g., oppositionto the citygovernment) is commonplaceandhas foundapplication in manycontexts.We have long held, for example,that nonverbalexpressiveactivitycan be banned because ofthe action it entails, but not because ofthe ideas it expresses—so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation ofan ordinance against dishonoring the flag is not.").JOHNSON

— 29 to conduct that amounted to criminal mischief (whether expressive or not), the statute would still cover a wide swath ofexpressive conduct that does not amount to criminal mischief. Even under that assumption, then, the unconstitutional applications of the statute would, by its text, be substantial in relation to its plainly legitimate sweep. E. Sweep ofthe Statute in Actual Fact As for whether the application of the flag-destruction statute to expressive activity is significant in actual fact, we need look only to the numerous prosecutions of flag desecration 

### involving physical alteration ordamage to a flag that are documented by judicial decisions.108 By
108 See Snider, 752 F.3d at 1154-55 (plaintiff attempted to set fire to flag in his front yard, then shredded it and threw it into the street; officer conceded he violated plaintiffs First Amendment rights); Janssen, 219 Wis. 2d at 367-68, 580 N.W.2dat 262 (defecating on a flag and leavingit on the stepsto a golfcourseclubhouse); Eichman, 496U.S. at 312 (settingfireto several UnitedStates flags on the stepsof theUnitedStatesCapitol whileprotesting variousaspects of the Government's domestic and foreign policy); United States v. Cary, 897 F.2d 917, 919-21 (8th Cir.), vacated, 498 U.S. 916 (1990) (at protest ofthe decision of the United States Government to send 3,200 troops to Honduras, an unidentified woman came up to defendant, handed him a flag, and told him to light it, which he did); United States v. Haggerty, 731 F. Supp. 415, 416 (W.D. Wash.), aff'd sub nom., Eichman, 496 U.S. 310 (1990) (flag burned at a political demonstration in front of a post office to protestthe Flag Protection Act of 1989); Johnson, 491 U.S. at 399 (burning flag as part of protest against Reagan administration); Bowlesv. Jones, 758 F.2d 1479-80 (11th Cir. 1985)(burning flag at Communistrally as a protest againstU.S. imperialism); Monroe v. State Court of Fulton County, 739 F.2d 568, 570-71 (11th Cir. 1984) (flag burned at protest against U.S. involvement in Iranian affairs); People v. Sutherland, 9 111. App. 3d 824, 826, 292 N.E.2d 746, 747 (1973) (flag burned to protestagainst the invasion of Cambodia and the death of the four students at Kent State); State v. Farrell, 209 N.W.2d 103, 104 (Iowa 1973) (flag burned at protest ofthe Indo-China War and the presenceofR.O.T.C. on the campus); United States v. Crosson, 462 F.2d 96,98 (9th Cir. 1972)(flag burned by war protestors in R.O.T.C. building); Joycev. United States, 454 F.2d 971, 977-80 (D.C. Cir. 1971) (flag torn by person in group of protestors at Inauguration Day Parade); Deeds v. State, 474 S.W.2d 718, 719-20 (Tex. Crim. App. 1971) (flag burned at crowded public park in Dallas); 

### People v. Burton, 27 N.Y.2d 198, 201, 265 N.E.2d 66, 66 (Ct. App. 1970) (After affixing a flagto a vacantbuildingand settingit on fire, the defendant said, "I am goingto burnJohnson, Humphrey and Wallacejust as I am going to burnthis flag."); State v. Turner, 78 Wash. 2d 276, 277-78, 283- 84; 474 p.2d 91, 93,96 (1970) (flagburnedat gatheringby organizationhaving to do with the social and economic rehabilitation of a large economically depressed area of Seattle); United States v. 

### Ferguson, 302 F. Supp. 1111,1112 (N.D. Cal. 1969) (flagburned at rally on the front steps of aJOHNSON

— 30 

### contrast, prosecutions involving evenarguably non-expressive conduct appear from the cases to be uncommon as a historical matter.109 Even prosecutions that involve expressive activity that also 

### constitutes criminal mischief appear to be a small proportion of the cases.110 In fact, we are not
aware of a single case since Eichman thathasresulted in a final conviction under a flag destruction statute. Such prosecutions havebeenterminated inthedefendant's favor because the statute violated the constitution in one way or another111 or, in one case, becausethe court declined to address the 

### constitutionality ofthe statute after finding the evidence insufficient to support the conviction.112
F. Pattern ofNon-Enforcement We turn now to the State's contention that the Texas flag-destruction statute will not be

United States District Courthouse). Seealso State v. Jimenez, 828 S.W.2d 455 (Tex. App.-El Paso 

### 1992) (notsetting outthealleged conductbutruling Texas flag-destruction statute unconstitutional). 109 See Commonwealth v. Forrey, 108A.3d 895, 897 (Pa. Super. 2015) (troopersdiscovered 

### large debris trail—which included a United States flag—extending from defendant's truck to a wooded area,flag-desecration chargedismissed pretrial); Bricker, 542Pa.at 237-38,244,666 A.2d at 259, 262 (dirtyand wrinkled flag being used at entranceto home as artistic decoration, holding statuteunconstitutional as appliedbecause artistic expression isprotected bytheFirstAmendment); 

### Carpenter, 597 So. 2d at 758 (soiled flag wadded up in pocket, acquittal on appeal because desecration was not in public); Meyers, 23 111. App. 3d at 1045,321 N.E.2d at 143 (person lying on 

### flag inpublic park, acquittal on appeal because he didnot "trample" the flag); Cincinnati v. Bunch, 32 Ohio App. 2d 161, 161-62, 288 N.E.2d 854, 855 (1971) (defendant "spread the flag out on the 

### ground andplaced his personal property on topof it," conviction fordefiling theflag upheld). The last two cases would not appear to be prosecutable under the current Texas statute, and it is not entirely clear whether the first three cases could be. 110 See Janssen, 219 Wis. 2d at 367, 580 N.W.2d at 262 (flag stolen from a golfcourse); 

### Haggerty, 731 F. Supp. at416 (burned flag belonging to the United Sates Postal Service). 111 See supra nn.108-10; infra n.l 19. The State cites Milligan, a federal district court 

### opinion, which found no FirstAmendment violation, butthe opinion held thatthe statute was void for vagueness in violationof the Fourteenth Amendment. 479 F. Supp. 2d at 1008-14. 112 Carpenter, 597 So. 2d at 758.JOHNSON

— 31 unconstitutionally applied in a significant number ofinstances because there is currently a pattern ofnon-enforcement. Essentially,the State's argument is that the Supreme Court's opinions in Texas v. Johnson and United States v. Eichman have deterred and will continue to deter prosecutors from bringing flag-destruction prosecutionsthat would violatetheFirstAmendment. Concomitantly, the State contends, these cases have caused the average citizen to understand that the United States Constitutionprotectsthe rightto burnthe UnitedStatesflagto expressan idea,sothe averagecitizen 

### willnotfeel constrained bythestatute from engaging in such conduct."3 Itis no doubt truethatthe Supreme Court's decisions in Johnson and Eichman have deterred prosecutions for flag desecration114 and that those decisions have raised awareness among members ofthe general public that certain disrespectful conduct toward the United States flag is protected by the United States Constitution. But we are not persuaded that the deterrent effect and popular understanding of Supreme Court decisions are valid factors in determining whether a statute is unconstitutionally
overbroad. The State's argument involves a sort ofbootstrapping. In effect, the State is arguing that

113 See Milligan,479 F. Supp. 2d at 1007 (contending that "[i]t is reasonable to believe that the average citizen generally understands that burning a flag as part ofexpressive speech or conduct is protectedby the United States Constitution"and such generalknowledge"would be sufficientto dispel any possible chilling effect"). 114 See Winsness v. Yocom, 433 F.3d 727, 736 (10th Cir. 2006) ("In this case, Mr. Blaylock has foresworn any intention to bring criminal charges against indivdiuals who alter the flag for expressivepurposes. His superior,Mr. Yocom, has gone further, categorically announcingthat his office will bring no prosecutions under the statute."); Lawson v. Hill, 368 F.3d 955,956-57 (7th Cir. 2004) ("At some point [the prosecutor] learned about the demonstrations and told both the police chiefofGoshen, and the county's sheriff, not to investigate whether the students had violated the flag-desecration statute. We do not know when anyonewas last prosecutedunder the statute. We know only that [the prosecutor] has never prosecuted anyone under it and is unaware of any prosecutions in other counties.").JOHNSON

— 32 

### certain applications oftheflag-destruction statute areso obviously unconstitutional thatprosecutors will steer clear ofthem, and because ofthat, the actual unconstitutional applications ofthe statute will not be substantial in relation to the statute's legitimate sweep. The State also suggests that there 

### willbenochilling effect from theseunconstitutional applications because thepublic understands that the courts will not enforcethem. The State's argument is somewhat like an argumentadvanced in


### a capital murder appeal a decade ago. Thedefense argued thatthe courtshould find the evidence to be insufficientto show future dangerousness because the defendant was so obviouslydangerous 

### that the prison authorities would place him in lockdown to prevent him from hurting anyone.115 Although we found that defendant's argument to be "ingenious," werejected it because "it would 

### stand the capital punishment scheme on its head, giving reliefto the most dangerous offenders."116 Likewise, the State's argumentwould seem to stand First Amendmentjurisprudenceon its head, 

### upholding a statute onthebasis thatits unconstitutional applications areso glaringly obvious that prosecutors will avoid them and speech will not be chilled by them. Moreover, the Supreme Court has clearly stated that it will not uphold a statute "merely 

### because theGovernment promised touseitresponsibly."117 "TheFirstAmendmentprotects against the Government; it doesnot leaveus at the mercy ofnoblesse oblige."u% And so longas a statute remains on the books, the threat of "irresponsible" use remains, because a prosecutor or police 

### officer may be insufficiently instructed on the issue, because the authorities (wrongly) perceive the

115 Masterson v. State, 155 S.W.3d 167, 172-74 (Tex. Crim. App. 2005). 116 Id. at 174. 117 Steve/w,559U.S.at481. 118 Id.JOHNSON

— 33 conduct to fall outside constitutionalprotection, or becauseof other reasons. The caselaw contains 

### post-Eichman examples of such occurrences with respect to flag-desecration statutes."9 By depending ontheSupreme Court's "as-applied"jurisprudence toreduce theoverbreadth ofa statute, the State shifts to a significantdegree the determinationof constitutionalquestions from the courts to the prosecutors, the police, and the public. But we should not expect persons in those latter positions to be the primary interpreters of the First Amendment: Arguably, people are always "on notice" that constitutionally protected conductis exempt from prosecution, and law enforcement officials could always look to the First Amendment to determine when a law should not be enforced because it would interfere with constitutionally protected activity
.... Because First Amendment 

### 119 SeePhelps v. Powers, 63 F. Supp. 3d943,945-46,952-57 (S.D. Iowa2014) ("According to Petitioners [members ofWestboro Baptist Church], Chief Powers told Elizabeth Phelps that the flag desecration statutes would be enforced against the picketers. As a result of Chief Powers's statement, members of the church refrained from putting the flag on the ground or hanging it from their bodies." The court found the Iowa flag-desecration statute to be unconstitutionally overbroad in violation of the First Amendment.); Snider, 752 F.3d at 1154 (In 2009, the defendant was arrested for flag desecration for shredding an American flag in his front yard and held in jail for 

### approximately eight hours because boththe arresting officer andtheprosecutor "wereunaware of the United States Supreme Court decisions in Texas v. Johnson and United States v. Eichman." 

### Uponbeinginformed ofJohnson by a localreporter, theprosecutor dismissed the case.); Gooding v. Ketcher, 838F. Supp. 2d 1231,1234-35 (N.D. Okla. 2012)(In2009,a UnitedStates flagwasused 

### by the plaintiffas a prop during a bandperformance, the plaintiffwas arrested and imprisoned for thirteen hours until he posted bond, formal charges were never filed, and the sheriff commented in supportof arrest, "I was shocked and disturbed by this that somebody would think they could get by withthat Peoplein thispart of the UnitedStatesareveryproud of the flagand whatit stands for and the men and women who have lost their lives to protect that flag. It's not an object to be stomped on or drug across the floor."); Milligan, 479 F. Supp. 2d at 997 (Two defendants were prosecuted in 2006for flag desecration or disorderly conductwith respectto the flag for flying flag upside-down in protest. One defendant was found not guiltyby a magistrate on the basis that the statute was unconstitutional as applied. The other defendant's case was dismissed one day before trial.);Janssen, 219 Wis. 2d at 367-68,580N.W.2d at 262 (In 1996, the defendant was prosecuted for flag desecration after he defecated on flag belonging to golfcourse. Trial court dismissed the 

### prosecution, and the appellate courts affirmed.); Bricker, 542 Pa. at 237-38, 246-47, 666 A.2d at 258-59, 263 (In 1993, the defendant was prosecuted for flag desecration after a police officer discovered a dirty and wrinkled flag being used in a doorwayinside the home. Trial court quashed the charge, and appellate court affirmed.).JOHNSON

— 34 doctrines are often intricate and/or amorphous, people should not be charged with noticeof FirstAmendmentjurisprudence Moreover, anattemptto chargepeople with notice of First Amendment caselaw would undoubtedly serve to chill free expression.120 

### Further, in explaining whyitbelieves appellee'sconduct in thiscasewasnotexpressive, the State offers rationales that could readilylendthemselves to the harassment of persons engaging in 

### protected expression.121 The State claims that there was "no element of speech" in appellee's conduct because his conduct "was random in nature." But the act ofthrowing down a flag in anger 

### couldeasily be protected expression.122 The Statealso contends that appellee's conduct was nonexpressive because hethrew downa flagthatbelonged to a different storethantheonehewasangry with. Thatconclusion depends on statements madeby appellee to the policeaftertheyconfronted him about his conductin relation to the flag. If the expressivenature of a person's conductdepends 

### upon what helater says when confronted bythe police about it, then individuals who have engaged

120 Long, 931 S.W.2d at 295 (criticizing reliance on language in an affirmative defense that made it a defenseif the actor engagedin activity"in supportofconstitutionally... protectedrights" because suchlanguage wouldrequirecitizens andlaw-enforcementofficials "tobeFirstAmendment 

### scholars"). SeealsoJanssen, 219 Wis. 2d at 382n.13, 580N.W.2d at 268 n.13 ("[A] construction which by its verylanguage limits a statute's application to speech andconduct that is notprotected bythe FirstAmendment is bothimpractical andconstitutionally suspect [I]tsimply exchanges overbreadth for vagueness.") (quoting in part from LaurenceH. Tribe, American Constitutional Law, § 12-29, at 1031 (2d ed. 1988), internal quotation marks omitted). 121 Although the case is before us on a facial challenge to the statute, "we can look to the prosecution beforeus as evidence of the real dangerposed by the statute." Thompson, 442 S.W.3d at 350 (citing Stevens, 559 U.S. at 480). 122 SeeJoyce, 454 F.2d at 980 ("When all this is added to the unexplained tearing which 

### marred, injured, anddisfigured the flag, it was reasonable to conclude thatJoyce intended thereby publicly to show hisdisrespect andscorn fortheflag and thatheesteemed ittobelowandworthless. That is the normal inference from an act of intentionally tearing an article. It is the conclusion that reasonable peoplereachcountless timesa dayin the activities of ordinarylifewhentheyseeaperson rip something apart, throw part of it to the ground and tear the remainder.").JOHNSON

— 35 in expressive flag-damaging conductcannevertheless be subjectto arrestand detention pendingan 

### investigation regarding whether the conduct was infact protected expression.123 The State argues that the public clearly understands that the Constitution protects the right to damage a flag as a meansofexpression, but howeverclear that publicunderstanding maybe, the ruling soughtby the Statetodaywouldcloudthatunderstanding—potentially re-introducing the verychillingeffectthat
the State claims earlier decisions have eliminated.
III. CONCLUSION "The case is made difficult not because the principles ofits decision are obscure but because 

### theflaginvolved is ourown."124 Weconclude thattheTexas flag-destruction statute, byitstextand in actual fact, prohibits a substantial amountof activity that is protectedby the First Amendment, 

### judged in relation to its legitimate sweep. Consequently, we hold that the Texas flag-destruction statute is facially invalid because it is unconstitutionally overbroad in violation of the First Amendment. We affirm the judgments below. Delivered: October 7, 2015 Publish

123 The Supreme Court has suggested that its concerns are amplified when Firstand Fourth Amendments freedoms intersect. See Maryland v. Macon, 472 U.S. 463, 468 (1985) ("The First Amendment imposes special constraints on searches for and seizures of presumptively protected material and requiresthat the Fourth Amendment be applied with 'scrupulous exactitude' in such circumstances."). 124 Barnette, 319 U.S. at 641 (regulationrequiring school children to salute American flag and recitepledge of allegiance violatesFirst and Fourteenth Amendments).