                                        In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                               ________________
                                NO. 09-17-00036-CR
                               ________________

             EX PARTE STEVEN JOSEPH ERIBARNE III
__________________________________________________________________

                On Appeal from the 258th District Court
                         Polk County, Texas
                        Trial Cause No. 24,764
__________________________________________________________________

                                      OPINION

      Steven Joseph Eribarne III was charged with the offense of retaliation. See

Tex. Penal Code Ann. § 36.06 (West Supp. 2016). Eribarne filed an amended

application for pretrial writ of habeas corpus, in which he contended that the

retaliation statute is facially overbroad and vague under the First Amendment of the

United States Constitution. See id. After conducting a non-evidentiary hearing, the

trial court denied Eribarne’s application. In his sole appellate issue, Eribarne argues

that section 36.06 is unconstitutionally overbroad on its face in violation of the First

Amendment. We affirm the trial court’s order denying habeas relief.



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      Section 36.06 of the Texas Penal Code provides as follows, in pertinent part:

   (a) A person commits an offense if the person intentionally or knowingly harms
       or threatens to harm another by an unlawful act:
       (1) in retaliation for or on account of the service or status of another as a:
           (A)public servant . . . .

Id. The indictment alleged that Eribarne intentionally or knowingly harmed and

threatened to murder the victim “in retaliation for and on account of the service and

status of [the victim] as a public servant[.]” According to Eribarne’s petition for writ

of habeas corpus, the State bore the burden of demonstrating that the statute satisfies

strict scrutiny; that is, “the State must show that the statute is both necessary and

narrowly written to satisfy a compelling state interest.” Eribarne argued that the

statute restricts speech based on content and also restricts protected speech, is not

limited to true threats, and fails to meet the strict scrutiny standard. Eribarne

advances the same arguments on appeal.

      Whether a statute is facially unconstitutional is a question of law that we

review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). In Webb

v. State, 991 S.W.2d 408 (Tex. App.—Houston [14th Dist. 1999], pet. ref’d), our

sister Court of Appeals addressed an overbreadth challenge to section 36.06. Id. at

412.1 The Webb court held that section 36.06 does not abridge constitutionally


      1
       The current version of section 36.06(a)(1) is identical to the text of the statute
as it existed when Webb was decided in 1999. See Tex. Penal Code Ann. §
                                               2
protected speech and that the statute “survives the facial challenges to

overbreadth[.]” Id. at 414-15. The Webb court held that section 36.06 does not

implicate First Amendment protections because “[b]y its terms, the statute punishes

only those individuals who intentionally or knowingly harm or threaten to harm

another person by an unlawful act.” Id. at 415.

      According to the Webb court, the statute only punishes threatening speech and

“does not reach a substantial amount of constitutionally protected conduct.” Id.

Because the statute punishes conduct rather than the content of speech alone and

bears a rational relationship to the State’s legitimate and compelling interest in

protecting public servants from harm, we reject Eribarne’s argument that we must

apply the strict scrutiny standard when analyzing his issue. See Broadrick v.

Oklahoma, 413 U.S. 601, 615 (1973); Ex parte Woodall, 154 S.W.3d 698, 702 (Tex.

App.—El Paso 2004, pet. ref’d); see also Ex parte Lo, 424 S.W.3d at 16-17 (noting

the distinction between regulating speech versus regulating conduct). We therefore

presume that the statute is valid, and that the Legislature did not act arbitrarily or

unreasonably in enacting the statute. Ex parte Lo, 424 S.W.3d at 15.




36.06(a)(1) (West Supp. 2016); Webb v. State, 991 S.W.2d 408, 413 (Tex. App.—
Houston [14th Dist. 1999], pet. ref’d).
                                             3
      We agree with the analysis of our sister Court of Appeals in Webb and

conclude that section 36.06 does not implicate First Amendment protections and is

not unconstitutionally overbroad. See id. at 412-15. Accordingly, we overrule

Eribarne’s sole issue and affirm the trial court’s order denying habeas relief.

      AFFIRMED.



                                              ______________________________
                                                     STEVE McKEITHEN
                                                        Chief Justice


Submitted on May 24, 2017
Opinion Delivered July 19, 2017
Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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