1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________ NO. 09
- 17
- 00125
- CR



### ____________________ THE STATE OF TEXAS , Appellant

V.
MARC DAVENPORT , Appellee

On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 16
- 06
- 07318
- CR

MEMORANDUM OPINION The State appeals the trial court’s order dismissing the indictment against Appellee Marc Davenport (Davenport or Appellee) for conspiracy to circumvent the Texas Open Meetings Act

. We reverse the trial court’s order dismissing the indictment and remand the cause to the trial court for further proceedings consistent with this opinion.2

On June 24, 2016, a Grand Jury indicted Appellee, Marc Davenport, for Conspiracy to Circumvent the Texas Open Meetings Act under section 551.143 of
the Government Code

. See Tex. Gov’t Code Ann. § 551.143 (West 2017). Although Davenport and the State agree that he was not a member of a “ governmental body, ” Davenport was charged as a party to the conspiracy with language in the indictment tracking Penal Code section 7.02(a)(2). See Tex. Penal Code Ann. § 7.02(a)(2) (West 2011). The indictment alleged that :

. . . Marc Davenport , on or about August 11, 2015 and continuing through August 24, 2 015 and before the presentment of this indictment,

. . . did then and there, with the intent to promote or assist the commission of the offense described herein, solicit, encourage, direct, aid or attempt to aid Jim Clark or Charlie Riley or Craig Doyal who, did then and there as a member of a governmental body, to wit: the Montgomery County Commissioner’s Court, knowingly conspire to circumvent Title 5 Subtitle A Chapter 551 of the Texas Government Code

. . . by meeting in a number less than a quorum for the purpose of secret deliberations in violation of the Te xas Open Meetings Act, to wit: by engaging in a verbal exchange concerning an issue within the jurisdiction of the Montgomery County Commissioners Court, namely, the contents of the potential structure of a November 2015 Montgomery County Road Bond [

. ]
Ri ley and Doyal were indicted in separate indictments. On October 31, 2016, Davenport filed a Motion to Dismiss for Lack of Jurisdiction arguing that Davenport was not a member of a “ g overnmental b ody” and that at no time was he acting as a “public servant ” or “in an official capacity as a public servant.” The trial court denied Davenport’s Motion to Dismiss for L ack of3

J urisdiction. 1 Davenport also opposed the State’s proposal to join or consolidate for trial Davenport’s case with two other cases, State of Texas v. Craig Doyal , No. 16

- 06

- 07315

- CR, and State of Texas v. Charlie Riley , No. 16

- 06

- 07316

- CR. On March 20, 2017, Doyal filed a Motion to Dismiss the Indictment in Doyal’s case . On March 22, 2017, Davenport filed a Motion to Join Defendant Craig Doyal’s Motion to D ismiss the I ndictment. The Doyal motion asserted that section 551.143 of the Government Code must be reviewed under strict scrutiny, is facially unconstitutional because it violates the First Amendment, and is overbroad, vague
and confus ing. 2 The trial cou rt held a hearing on the motion to dismiss . On April 4, 2017, in three separate orders , the trial court dismiss ed the indictment s against Davenport , Doyal, and Riley . The State appealed.
We overturned the trial court’s ruling granting Doyal’s motion to
dismiss. See S tate v. Doyal , No. 09

- 17

- 00123

- CR, slip. op. (Tex. App.

— Beaumont Feb

. 7, 2018, no pet. h. ), available at http://www.search.txcourts.gov/

1 Davenport filed a petition for a writ of mandamus with this Court challenging the trial court’s jurisdiction on the basis that he is not a public servant. See In re Davenport , No. 09

- 17

- 00 0 84

- CR, 2017 Tex. App. LEXIS 2571 (Tex. App.

— B eaumont Mar. 23, 2017) (orig. proceeding). We denied the petition after concluding that Davenport failed to show why a challenge on direct appeal would be an in adequate remedy. Id . at *2.

2 A n appellate court may take judicial notice of its own records, su ch as pleadings, in the same or related proceedings involving the same or nearly same parties. See Turner v. State , 733 S.W.2d 218, 223 (Tex. Crim. App. 1987).4

DocketSrch.aspx?coa=coa09

. And, we overturned the trial court’s ruling granting Riley’s motion to dismiss. See State v. Riley , No. 09

- 17

- 00124

- CR, slip. op. (T e x. App.

— Beaumont Feb. 7, 2 018, no pet. h .), (mem. op.
not d esignated for publication), available at http://www.search.txcourts.gov/ DocketSrch.aspx?coa=coa09

. For the reasons discussed in State v. Doyal and State v. Riley , we also re verse the order dismissing Davenport ’s indictment. In remanding Davenport’s case, we emphasize that the only matter that is currently before us pertains to the facial constitutional challenges that were made in Doyal’s Motion to Dismiss . Davenport did not assert any additional grounds for dismissal in Davenport’s Motion to Join . No other challenges or issues are currently before us in this appeal. We expressly have not ruled upon an “as applied challenge”
nor ha ve we been asked to review the application of the statute to Davenport, a
consultant and someone who alleges he is not a member of a governmental body. While a defendant has the right to seek a dismissal of an indictment based on a claim that the statute under which the defendant was indicted is facially invalid, the bar to succeeding on these types of claims is high. The United States Supreme
Court has e xplained: “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no
set of circumstances exists under which the Act would be valid.” United States v.5

Salerno , 481 U.S. 739, 745 (1987); see also McGruder v. State , 483 S.W.3d 880, 883 (Tex. Crim. App. 2016)

. 3
T he overbreadth doctrine is “strong medicine” that is used “sparingly and only
as a last resort.” State v. Johnson , 475 S.W.3d 860, 865 (Tex. Crim. App. 2015) (citing N

. Y

. State Club Ass’n v. City of New York , 487 U.S. 1, 14 (1988); Broadrick
v. Oklahoma , 413 U.S. 601, 613 (1973); Ex parte Thompson , 442 S.W.3d 325, 349 (Tex. Crim. App. 2014 )). When making a “substantial overbreadth” challenge under
the First Am endment, the challenger must establish that the statute as written “prohibit[s] a substantial amount of protected expression, and the danger that the statute will be unconstitutionally applied must be realistic and not based on ‘fanciful hypotheticals.’” I

d . (footnotes omitted) (quoting United States v. Stevens , 559 U.S. 460, 485 (2010) (Alito, J., dissenting)). Therefore, Davenport had the burden to

3 Courts are directed to avoid sustaining a defendant’s facial challenge to a statute when possible because such challenges, when they are sustained, allow the courts to nullify a legislative act without first requiring that a record be created regarding th e defendant’s conduct

. See Wash

. State Grange v. Wash

. State Republican Party , 552 U.S. 442, 450

- 51 (2008) (noting that facial challenges are disfavored for several reasons, explaining that they often rest on speculation, run contrary to the principles of judicial restraint, and threaten to short circuit the democratic process) ; s ee also King St. Patriots v. Tex. Democratic Party , 521 S.W.3d 729, 737 (Tex. 2017) (“‘It is not the usual judicial practice . . . nor do we consider it generally desir able, to pro ceed to an overbreadth issue unnecessarily

— that is, before it is determined that the statute would be valid as applied.’”) (quoting Bd

. of Trs. of the State Univ. of N.Y. v. Fox , 492 U.S. 469, 485

- 86 (1989)).6

demonstrate “‘that a substantial number of instances exist in which the Law cannot be applied constitutionally.’” See id . (quoting N

. Y

. State Club Ass’n , 487 U.S. at 14). “The Supreme Court ‘ generally does not apply the “ strong medicine ” of overbreadth analysis where the parties fail to describe the instances of arguable overbreadth of
the contested law. ’ ” Id . (quoting Wash

. State Grange v. Wash

. State Republican Party , 552 U.S. 442, 449

- 50 n. 6 (2008)). Based upon the appellate record currently before us, w e conclude that Davenport has failed to establish that the statute in question prohibits a substantial amount of activity that is protected by the First Amendment, judged in relation to its plainly legitimate sweep. We sustain the State’s appellate issues, reverse the trial court’s o rder dismissing Davenport’s indictment, and remand the cause to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.

_________________________ LEANNE JOHNSON Justice

Submitted on January 24, 2018 Opinion Delivered February 7, 2018 Do Not Publish Before McKeithen, C.J., Horton and Johnson, JJ.