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                                  MEMORANDUM OPINION

                                           No. 04-08-00547-CR

                                      Anthony Joseph HERRERA,
                                               Appellant

                                                      v.

                                          The STATE of Texas,
                                                Appellee

                        From the County Court at Law No.1, Bexar County, Texas
                                        Trial Court No. 232454
                                 Honorable Al Alonso, Judge Presiding1

Opinion by: Karen Angelini, Justice
Concurring opinion by: Sandee Bryan Marion, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: July 29, 2009

AFFIRMED

           Anthony Joseph Herrera was charged by information with the misdemeanor offense of racing

on a highway. After his motion to set aside the information was denied, Herrera entered a plea of

nolo contendere pursuant to a plea-bargain agreement. The trial court deferred finding Herrera guilty,




         … The Honorable Brenda Chapman presided over the motion to set aside the information. The Honorable Al
           1

Alonso signed the judgment.
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placed him on deferred adjudication community supervision for a period of six months, and assessed

a fine, court costs, and community service. On appeal, Herrera argues that the trial court erred in

denying his motion to set aside the information because the offense of racing on a highway is

unconstitutionally vague. We affirm.

                                                   DISCUSSION

         Herrera was charged by information with the Class B misdemeanor offense of racing on a

highway. The amended information, which substantially tracked the statutory language for the

offense, alleged that “on or about the 14th day of October 2007 Anthony Herrera did then and there

intentionally and knowingly participate as the driver and operator of a motor vehicle in a race,

namely: the use of one or more vehicles in an attempt to outgain and outdistance another vehicle.”

See TEX . TRANSP . CODE ANN . § 545.420(a)(1), (b)(2)(A) (Vernon Supp. 2008).

         In his first two issues, Herrera argues that the trial court erred in denying his motion to set

aside the information because the offense of racing on a highway is unconstitutionally vague and

violates his due process rights under the United States Constitution and the Texas Constitution.2

Herrera challenges the portion of the statute defining the type of “racing” with which he was

charged: using one or more vehicles in an attempt to “outgain or outdistance another vehicle.” See

TEX . TRANSP . CODE ANN . § 545.420(b)(2)(A) (Vernon Supp. 2008). He argues that this language

is impermissibly vague and fails to give an ordinary citizen sufficient notice of what conduct is

criminalized, and fails to give sufficient guidance to law enforcement to prevent arbitrary or




         2
             …Herrera does not explain how the Texas Constitution provides more protection than the United States
Constitution. Therefore, to the extent that the Texas Constitution does provide more protection than the United States
Constitution, Herrera has inadequately briefed the issue. See T EX . R. A PP . P. 38.1(i).

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discriminatory enforcement. That is, he argues that this language can encompass the legal act of

passing another vehicle on a highway.

        We first note that Herrera has not made any specific argument in his brief explaining how

the racing statute is unconstitutionally vague as applied to his particular conduct. See Village of

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982) (explaining that to

challenge the vagueness of a law that does not reach constitutionally protected conduct, a person

must first show the law is unconstitutionally vague as applied to him because a person “who engages

in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied

to the conduct of others”); Bynum v. State, 767 S.W.2d 769, 773-74 (Tex. Crim. App. 1989)

(explaining that when First Amendment rights are not implicated, a court must first consider whether

the statute is impermissibly vague as applied to the challenging party’s specific conduct). Indeed,

neither the record nor Herrera’s brief reveals to this court what Herrera’s particular conduct was in

this case.3 Recently, in Urdiales v. State, No. 04-08-00546-CR, 2009 WL 1883932, at *3 (Tex.

App.—San Antonio July 1, 2009, no pet. h.), the appellant, like Herrera, raised the issue of whether

the racing statute was unconstitutionally vague on its face. However, we did not reach the issue

because the appellant had failed to show how the racing statute was unconstitutionally vague as

applied to his conduct. Id. Likewise, here, Herrera argues that the racing statute is impermissibly

vague as to everyone; Herrera wholly fails to explain how the law is too vague as applied to his

particular conduct. See id. In the absence of an “as applied” argument, Herrera has failed to show

that the racing statute is unconstitutionally vague as applied to him; therefore, we do not reach the



        3
            … The clerk’s record contains the information, Herrera’s plea and waiver of his rights, and the trial court’s
admonishments. However, because this case involves a misdemeanor offense, the record contains no stipulation of the
evidence against Herrera.

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issue of whether the statute is unconstitutionally vague on its face. See id. We overrule Herrera’s first

two issues.

        In his third issue, Herrera argues that the trial court erred in denying his motion to set aside

the information because the information failed to meet the requirements of articles 21.11 and 21.23

of the Texas Code of Criminal Procedure. Specifically, he argues that “the offense of racing on a

highway, as charged in the information, failed to enable a person of common understanding to know

what is meant or have notice of the particular offense with which he is charged.” See TEX . CODE

CRIM . PROC. ANN . art. 21.11 (Vernon 2009) (providing that an indictment is sufficient if it charges

an offense in “ordinary and concise language in such a manner as to enable a person of common

understanding to know what is meant, and with that degree of certainty that will give the defendant

notice of the particular offense with which he is charged”); id. art. 21.23 (stating that the rules with

respect to allegations in an indictment and the certainty required also apply to an information). We

review the sufficiency of an indictment or information de novo. State v. Moff, 154 S.W.3d 599, 601

(Tex. Crim. App. 2004).

        Here, the information tracked the language of the racing on a highway statute. Generally, an

indictment or information is sufficient if it tracks the language of the statute. Id. at 602. An exception

exists if the statutory language is not itself completely descriptive of the offense, in which case, more

particularity is required to be pled. Evans v. State, 623 S.W.2d 924, 925 (Tex. Crim. App. [Panel

Op.] 1981). In Urdiales, 2009 WL 1883932, at *4, we addressed this same issue and held that the

information was sufficient:

        Urdiales argues the information is inadequate for the same reasons he asserts the
        statute is unconstitutional–because it fails to adequately notify him of the particular
        conduct that gave rise to the criminal charges. However, in his brief and at argument
        Urdiales did not explain how the alleged lack of notice prevented him from


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        investigating the offense and preparing a defense, other than to state that the statute
        is itself too vague. We must conclude that Urdiales has not fully briefed this issue
        because he has failed to establish in his first two issues that the statute is
        unconstitutionally vague as applied to his particular conduct. Accordingly, because
        the information tracked the statutory language, we hold it was sufficient under article
        21.11.

As in Urdiales, Herrera has not explained how the alleged lack of notice prevented him from

investigating the offense and preparing a defense, other than to state that the statute is itself too

vague. Thus, as in Urdiales, we must conclude that Herrera has not fully briefed this issue because

he has failed to establish in his first two issues that the statute is unconstitutionally vague as applied

to his particular conduct. Applying the reasoning in Urdiales to this case, we likewise hold that

because the information tracked the statutory language, it was sufficient under articles 21.11 and

21.23. We overrule Herrera’s third issue.

                                             CONCLUSION

        We affirm the judgment of the trial court.



                                                         Karen Angelini, Justice

DO NOT PUBLISH




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