                                                                                           PD-0761-15
                                                                       COURT OF CRIMINAL APPEALS
                                                                                        AUSTIN, TEXAS
                                                                       Transmitted 12/1/2015 4:32:18 PM
                                                                         Accepted 12/1/2015 4:47:59 PM
                                    No. PD-0761-15                                       ABEL ACOSTA
                                                                                                 CLERK

                   IN THE COURT OF CRIMINAL APPEALS OF TEXAS

                              PATRICK MARCEL BROWN
                                      Appellant

                                            v.
December 1, 2015
                                 THE STATE OF TEXAS
                                         Appellee


                    On Petition for Discretionary Review from
                Cause No. 14-13-00839-CR, affirming the decision in
      Cause No. 1391739, in the 262nd Judicial District Court of Harris County, Texas


                              MOTION FOR REHEARING


  SECTION 38.122 MUST BE INVALIDATED FOR THE THREAT IT PRESENTS TO THE
                            FIRST AMENDMENT

 A. Initial Request to Review the Oral Argument in the Fourteenth Court of
    Appeals

       Appellant humbly requests that the Court of Criminal Appeals listen to the oral

 argument in Appellant’s case if it has not done so already. There is a stark contrast

 between the posture of the Court of Appeals at argument, where the Court of

 Appeals acknowledges the impact of Section 38.122 on the valid practice of law, and

 the Court of Appeals’s published opinion, which glosses over the issue of the statute’s

 overbreadth.   The Court of Appeals’s opinion gives an incomplete and limited

 perspective of the important issues decided in Appellant’s case.
B. Section 38.122 as interpreted by this Court and the Fourteenth Court of
   Appeals is particularly dangerous from a policy standpoint

       Incrementally, this Court and the Fourteenth Court of Appeals have broadened

the definitions applicable to Section 38.122 to the point where they apply in

unreasonable contexts. In Celis, this Court made several important holdings: 1) that

the “mental-state requirement [is limited] to the economic-benefit element,” 2) that

“good standing” requirement applies regardless of whether a lawyer is licensed in

another state, and 3) Section 38.122 applies unless certain requirements are met. Celis

v. State, 416 S.W.3d 419, 428 (Tex. Crim. App. 2013). But Section 38.122 has no “truth

defense” and has no nexus to the practice of law within Texas. Under this Court’s

definition, an out-of-state lawyer violates the law whether the lawyer truthfully

represents her status as a lawyer (“licensed in Illinois”), conditions payment and

representation upon obtaining permission to appear before Texas courts pro hac vice in

the future, or offers to represent a client in matters outside of Texas state law. Section

38.122 prohibits speech that is neither misleading nor proposes an unlawful

transaction. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 528 (1996) (Even

where speech is purely commercial, where “the speech at issue concerns lawful

activity and is not misleading, and […] the asserted governmental interest is

substantial[, … the Court] must decide whether the regulation directly advances the

governmental interest asserted, and whether it is not more extensive than is necessary

to serve that interest.”).
      The Fourteenth Court of Appeals ups the ante by concluding that a person can

“hold oneself out as a lawyer” if the person “acts like a lawyer,” even if that person

never actually claims to be a lawyer. Brown v. State, 468 S.W.3d 158, 166 (Tex. App.-

Houston [14th Dist.] 2015, pet. ref’d). The example posed at trial and considered by

the Court of Appeals is telling: if a person performs electrical work in a person’s

house, in the Court of Appeals’s eyes, that person ceases to be an honest handyman

and is transformed by subjective belief into a charlatan electrician. Id. at 164–166.

However, as criminal law must be clear in its meaning and application, it must avoid

being founded upon a subjective basis. See e.g. Michigan v. Bryant, 562 U.S. 344, 360 n. 7

(2011) (criminal law disfavors subjective inquiry). The transformation of the

requirement of “holding oneself out a lawyer” into criminalizing merely permitting

oneself to be perceived as a lawyer threatens lawful professions including legal

paraprofessionals, tax advisors, licensed advocates practicing before agencies, and

negotiators.

      Section 38.122 is open to an even broader interpretation, and may be applied to

a number of unwitting people who could be said to be “holding themselves out to be

lawyers” for compensation. Law professors, who might not be licensed to practice

law, provide legal education for compensation. Actors frequently pretend to be

lawyers in paid acting jobs. See Brown v. Perez, 25 S.W. 980, 983 (Tex. Civ. App. 1894)

(defining “pretend” as “[t]o hold out as true that which is false; to feign; to

simulate.”). Similarly, satirists and comedians pretend to be lawyers as part of paid
creative works. None of these people should face the expense, emotional strain, and

threat of wrongful incarceration posed by the possibility of prosecution under Section

38.122 for lawful activities.

C. The licensing and good standing exceptions to Section 38.122 are
  insufficient to protect the innocent or to satisfy First Amendment

       In Stevens, the Government asserted that the clause “exempt[ing] from

prohibition any depiction that has serious religious, political, scientific, educational,

journalistic, historical, or artistic value” from the federal law banning depictions of

cruelty to animals sufficiently narrowed the statute’s reach. United States v. Stevens, 559

U.S. at 477-478. But the Supreme Court concluded that the exceptions did not go far

enough. First, the law limited its protection to speech of “serious value,” which was

not broad enough to save the statute Id. at 478. Second, the law did not protect

speech which lacked religious, political, scientific, educational, journalistic, historical,

or artistic value but was still afforded protection by the First Amendment. Id. at 478-

80.

       Section 38.122 suffers from similar problems as the law considered in Stevens.

First, the exceptions to prosecution are not broad enough to save the statute, as they

narrowly exempt only lawyers in good standing with both the Texas bar and any

other bar organizations the person belongs to from prosecution. TEX. CODE CRIM.

PROC., ART. 38.122(a). But what of lawyers licensed by the Texas Bar who decide to

let other bar memberships lapse in other jurisdictions? What of licensed lawyers who
do not practice Texas law but who are fully credentialed to provide any services they

hold themselves out to provide? Second, the law provides no defense where a

person’s statements are truthful and not misleading. What happens to an unlicensed

or out-of-jurisdiction lawyer embarking upon a non-legal career? Or to the licensed

out-of-jurisdiction lawyer practicing out of state law from a summer home in Texas?

Section 38.122(a) is a poorly drafted statute that must be invalidated so that the

legislature can address the law’s glaring flaws.

D. Courts have the obligation to strike down statutes which unconstitutionally
   infringe upon civil liberties

       As Texas’s jurisprudence has slowly digested and interpreted Jackson v. Virginia,

Texas courts have established increasingly rigorous appellate standards and have

expressed an increased reluctance to overturn a trial court’s verdict. Brooks v. State, 323

S.W.3d 893, 894–895 (Tex. Crim. App. 2010) (rejecting the factual sufficiency

standard); Karenev v. State, 281 S.W.3d 428, 433–434 (Tex. Crim. App. 2009) (adopting

an increasingly rigid preservation standard to even purely legal challenges in case). At

the same time, Texas jurisprudence has generally (with few prominent exceptions)

retreated from drawing clear legal boundaries or interpreting unclear or unwise

statutes in a manner lenient to those who may face prosecution. Seals v. State, 187

S.W.3d 417, 422 (Tex. Crim. App. 2005) (“It is not our place within the judiciary,

however, to construe a statute based on our notions of what is rational or what makes

good common sense.”). As a consequence, any desire for the rational application of
Texas criminal law increasingly relies upon the discretion and the “noblesse oblige” of

the prosecution. See United States v. Stevens, 559 U.S. at 480. But constitutional rights

and fundamental liberty interests cannot not hang in the balance, subject to self-

imposed limits upon prosecutorial discretion. Id. Correspondingly, Courts have a duty

to see that laws “must be invalidated [when they] function[…] to suppress” the

exercise of protected rights and freedoms. Church of the Lukumi Babalu Aye, Inc. v. City

of Hialeah, 508 U.S. 520, 540 (1993).

E. A facially invalid statute must be invalidated even before a pattern of
   unconstitutional applications arises from its use

      The mere fact that the government has not yet applied a facially

unconstitutional statute in a patently unconstitutional way does not save the statute

from invalidation. Though no Texas resident was prosecuted for electronically

sending “Lolita,” “50 Shades of Grey,” “Lady Chatterley's Lover,” or Shakespeare's

“Troilus and Cressida” to a minor, a subsection of Texas’s Online Solicitation of a

Minor statute was declared unconstitutional. Ex parte Lo, 424 S.W.3d 10, 20 (Tex.

Crim. App. 2013), reh'g denied (Mar. 19, 2014). Although the United States

Government refrained from prosecuting production studios who filmed hunting

videos, journalists who wrote articles about animal cruelty, and photographers who

took pictures of bullfights, federal law prohibiting certain depictions of animal cruelty

was similarly declared unconstitutional. United States v. Stevens, 559 U.S. at 477-478.

Statutes which unconstitutionally limit expression must be invalided even when
applied to conduct which may be prohibited, as the very existence of unconstitutional

statutes poses a “significant threat to the public interest, infringing as it does upon

rights accorded the highest degree of protection under the First Amendment.” Wilson

v. Stocker, 819 F.2d 943, 952 (10th Cir. 1987). A Court cannot “uphold an

unconstitutional statute merely because the Government [so far has used the law]

responsibly.” Id. at 480.

                                        PRAYER

       Appellant prays that this Court grant discretionary review in Appellant’s case.

                                               Respectfully submitted,

                                               ALEXANDER BUNIN
                                               Chief Public Defender
                                               Harris County Texas


                                               /s/ Nicolas Hughes
                                               NICOLAS HUGHES
                                               Assistant Public Defender
                                               Harris County Texas
                                               1201 Franklin Street, 13th Floor
                                               Houston Texas 77002
                                               (713) 368-0016
                                               (713) 386-9278 fax
                                               TBA No. 24059981
                                               nicolas.hughes@pdo.hctx.net
                              CERTIFICATE OF SERVICE

      I certify that a copy of this Motion for Rehearing has been served upon the Harris

County District Attorney's Office — Appellate Section and upon the State Prosecuting

Attorney on December 1, 2015 by electronic service.


                                                      /s/ Nicolas Hughes
                                                      NICOLAS HUGHES
                                                      Assistant Public Defender


                           CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of Tex. R. App. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the page

and word count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains

1,474 words excluding portions not to be counted under Tex. R. App. P. 9.4(i)(1).


                                                      /s/ Nicolas Hughes
                                                      NICOLAS HUGHES
                                                      Assistant Public Defender


             CERTIFICATION REGARDING GROUNDS FOR REHEARING

      “A motion for rehearing an order that refuses a petition for discretionary

review may be grounded only on substantial intervening circumstances or on other

significant circumstances which are specified in the motion.” TEX. R. APP. P. R. 79.2.

Counsel for Appellant certifies that this motion is made in good faith, not made for
delay, and is made for the following reasons. 1) Counsel for Appellant believes that

Section 38.122 punishes speech that is neither misleading or untruthful and that is not

in any traditional category of unprotected speech. 2) Counsel for Appellate believes

that Section 38.122, as it has been interpreted and applied in this case, is capable of

broader application and reach than even Section 33.021(b), as it can be readily applied

to thousands of unwitting, law abiding citizens including licensed lawyers, para-

professionals, and citizens providing quasi-legal professional services.



                                                       /s/ Nicolas Hughes
                                                       NICOLAS HUGHES
                                                       Assistant Public Defender
