Weekly Case Summaries: October 9, 2015

Texas Court of Criminal Appeals

State v. Johnson

No. PD-0228-14                 10/7/15


Is Penal Code §42.11 constitutional?


No. The flag desecration statute is facially invalid because it is overbroad; it prohibits a substantial amount of activity meant to be protected under the First Amendment. Read.

Concurrence (Alcala, J.):

Judge Alcala concurred in the judgment and wrote to express her personal respect for the flag and the ideals it reflects. Read.

Dissent (Meyers, J.):

Judge Meyers dissented in the judgment because the defendant in this case was not engaging in any sort of protected conduct or making a political statement protected by the First Amendment. Read.

Dissent (Yeary, J.):

Judge Yeary disagreed with the Court’s decision to hold the flag desecration statute unconstitutional on its face instead of considering its constitutionality as applied. In his dissent he argues that the Texas Court of Criminal Appeals is not authorized to address challenges to the constitutionality of statutes—even in cases alleging First Amendment overbreadth—when the defendant cannot show that the statute operated unconstitutionally in his own case. Read.


It is doubtful that Texas prosecutors spend a great deal of time charging violations of §42.11 of the Penal Code, so this decision will have little impact on our everyday work. But if you ever need an indication that “conduct” could fall within the scope of “expression” covered by the First Amendment, look no further than this decision. It is extremely thorough and exhaustive in its research. Judge Yeary presents a novel approach to overbreadth jurisprudence, but—based upon the current state of First Amendment law—it is doubtful that his approach will ever capture a majority of the court. If you want to learn a lot about First Amendment law, read this decision. But be forewarned: It is lengthy and very, very detailed.

Ex parte Marascio

No. WR-80,939-01, 939-02, 939-03            10/7/15


Is the defendant entitled to habeas corpus relief on the claim that his multiple convictions for Bail Jumping and Failure to Appear violate double-jeopardy?

Holding (per curium):

No, but the per curium opinion itself did not expound on the reasons for the holding. Read.

Concurrence (Keasler, J.):

Judge Keasler would not grant relief to the defendant and writes to express his view that the Court needs to clarify its procedure in reviewing habeas claims. In general, he supports the idea that if a claim could have been brought on direct appeal, as this double-jeopardy claim could have, then the claim’s merits should not be heard on a habeas petition. Read.

Concurrence (Richardson, J.):

Judge Richardson believes that in some circumstances a double-jeopardy claim may be allowed under an 11.07 application for habeas corpus, but in this case it is not because a violation is not clearly apparent from the face of the record. Read.

Concurrence (Yeary, J.):

He writes to agree with Judge Keasler’s position—and also agrees that the Court must clarify the types of claims that are available for habeas relief. Read.

Dissent (Meyers, J):

Judge Meyers dissents because of his desire to expand access to habeas corpus. He views the new CCP articles 11.072 and 11.073