Opinion issued August 30, 2018




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-17-00467-CR
                            ———————————
                 EX PARTE CHRISTIAN SAUDER, Appellant



                On Appeal from the County Court at Law No. 1
                          Fort Bend County, Texas
                    Trial Court Case No. 16-CCR-187341


                                   OPINION

      In this appeal from the trial court’s denial of his application for a writ of

habeas corpus, Christian Sauder argues that Texas Penal Code section 37.12,

prohibiting false identification as a peace officer, is facially unconstitutional.1 In

two issues, Sauder asserts that the trial court erred in denying him relief because


1
      See Tex. Penal Code Ann. § 37.12 (West 2016).
section 37.12 is: (1) unconstitutionally overbroad as written and void under the

First Amendment to the United States Constitution; and (2) unconstitutionally

vague in violation of the Fourteenth Amendment.

      We affirm.

                                   Background

      Sauder was charged with the offense of false identification as a peace officer

under Penal Code section 37.12. The charging instrument alleged:

      [O]n or about January 01, 2015, [Christian Sauder] then and there
      intentionally or knowingly possess[ed] a badge bearing an insignia of
      Fort Bend County Sheriff’s Office that identified a person as a peace
      officer, and the defendant knew that he was not commissioned as a
      peace officer as indicated on the badge.

      Sauder subsequently filed a pre-trial application for a writ of habeas corpus,

arguing that section 37.12 was unconstitutional as written on overbreadth and

vagueness grounds. The trial court held a hearing on the motion, but no testimony

was presented and no evidence regarding the facts of the underlying case was

admitted. After considering the application, the arguments of the parties, and the

exhibits attached to Sauder’s application, including photographs of badges, shirts,

and other items bearing an insignia of a law enforcement agency collected from

various sources and locations not associated with Sauder’s case, the trial court

denied Sauder’s request on the merits. This appeal followed.




                                         2
                 Constitutionality of Texas Penal Code section 37.12

         Sauder argues that Penal Code section 37.12 is facially unconstitutional

because it is both (1) overbroad and void under the First Amendment to the United

States Constitution and (2) vague in violation of the Fourteenth Amendment.

A.       Standard of Review

         “In general, we review a trial court’s ruling on an application for writ of

habeas corpus using an abuse-of-discretion standard, and we view any evidence in

the light most favorable to that ruling and defer to implied factual findings

supported by the record.” Ex parte Flores, 483 S.W.3d 632, 638 (Tex. App.—

Houston [14th Dist.] 2015, pet. ref’d). However, 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. 2015); Ex parte Flores, 483 S.W.3d at 638.

         Typically, we must presume “that the statute is valid and that the legislature

has not acted unreasonably or arbitrarily,” and the person challenging the statute

bears the burden of establishing that it is unconstitutional. Ex parte Lo, 424 S.W.3d

at 15.

         Sauder, however, argues that Penal Code section 37.12 is a content-based

restriction on constitutionally protected speech, which would shift both the

presumption of constitutionality and the burden of proof. See id. (holding that

when government seeks to restrict and punish speech based on its content, usual


                                            3
presumption of constitutionality is reversed and government bears burden of

proving constitutionality). This is so because “[t]he First Amendment’s prohibition

of laws ‘abridging the freedom of speech’ . . . limits the government’s power to

regulate speech based on its substantive content.” Ex parte Flores, 483 S.W.3d at

639 (citing U.S. CONST. amend I, and Reed v. Town of Gilbert, — U.S. —, 135 S.

Ct. 2218, 2226 (2015)); see State v. Stubbs, 502 S.W.3d 218, 224 (Tex. App.—

Houston [14th Dist.] 2016, pet. ref’d).

      When the government regulates speech based on its substantive content, the

usual presumption of constitutionality afforded legislative enactments is reversed.

United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 817, 120 S. Ct. 1878,

1888 (2000); Ex parte Flores, 483 S.W.3d at 639. Content-based regulations are

those that “distinguish favored from disfavored speech based on the idea or

message expressed.” Ex parte Lo, 424 S.W.3d at 15; see also Reed, 135 S. Ct. at

2229–30 (stating that content-based restrictions operate to restrict particular

viewpoints or public discussion of an entire topic or subject matter). Such

restrictions are “presumptively invalid, and the government bears the burden to

rebut that presumption.” Ex parte Flores, 483 S.W.3d at 639 (citing Ex parte Lo,

424 S.W.3d at 15).

      We apply strict scrutiny to regulations that suppress, disadvantage, or

impose differential burdens upon speech because of its content, and such


                                          4
regulations may be upheld only if it is necessary to serve a compelling state

interest and employs the least speech-restrictive means to achieve its goal. Ex

parte Flores, 483 S.W.3d at 639 (citing Turner Broad. Sys., Inc. v. F.C.C., 512

U.S. 622, 642, 114 S. Ct. 2445, 2459 (1994) and Ex parte Lo, 424 S.W.3d at 15).

      “Other types of regulations receive intermediate scrutiny, including content-

neutral regulations of the time, place, and manner of speech, as well as regulations

of speech that can be justified without reference to its content.” Id. (citing Turner

Broad. Sys., 512 U.S. at 642, 114 S. Ct. at 2459 and Ward v. Rock Against Racism,

491 U.S. 781, 791, 109 S. Ct. 2746, 2753–54 (1989)). “These regulations are

permissible if they promote a significant governmental interest and do not burden

substantially more speech than necessary to further that interest.” Id. (citing

McCullen v. Coakley, —U.S.—, 134 S. Ct. 2518, 2534–35 (2014) and Ex parte

Thompson, 442 S.W.3d 325, 344 (Tex. Crim. App. 2014)).

      Although the First Amendment literally protects only speech, Texas courts

following the United States Supreme Court have held that the First Amendment

also protects symbolic speech and expressive conduct as well as actual speech. See,

e.g., Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct. 2533, 2539 (1989) (holding

that symbolic or expressive conduct may “possess sufficient communicative

elements to bring the First Amendment into play”); Faust v. State, 491 S.W.3d

733, 745 n.31 (Tex. Crim. App. 2015) (“The First Amendment affords protection


                                         5
to symbolic or expressive conduct as well as to actual speech.”) (citing Virginia v.

Black, 538 U.S. 343, 358, 123 S. Ct. 1536, 1547 (2003)); Ex parte Flores, 483

S.W.3d                                       at                                 639.

https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1989092395&pubN

um=0000708&originatingDoc=I275842f0883811e599acc8b1bd059237&refType=RP&originati

onContext=document&transitionType=DocumentItem&contextData=(sc.History*oc.Search)

However, not all modes of “communication” are protected by the First

Amendment. See United States v. O’Brien, 391 U.S. 367, 376, 88 S. Ct. 1673,

1678 (1968) (rejecting idea that First Amendment protections include “all modes

of ‘communication of ideas by conduct,’” stating, “We cannot accept the view that

an apparently limitless variety of conduct can be labeled as ‘speech’ whenever the

person engaging in the conduct intends thereby to express an idea”); see also

Johnson, 491 U.S. at 404, 109 S. Ct. at 2539 (recognizing O’Brien’s limitation on

protections of symbolic speech).

      In United States v. Alvarez, the United States Supreme Court recognized

several categories of speech that do not fall under the protections of the First

Amendment, including “speech integral to criminal conduct,” “fraud,” and “speech

presenting some grave and imminent threat the government has the power to

prevent.” 567 U.S. 709, 717–18, 132 S. Ct. 2537, 2544 (2012) (citing, e.g.,

Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498–501, 69 S. Ct. 684, 689–

90 (1949), Va. Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S.
                                         6
748, 771, 96 S. Ct. 1817, 1830 (1976), and Near v. Minnesota ex rel. Olson, 283

U.S. 697, 716, 51 S. Ct. 625, 631 (1931)); Ex parte Wheeler, 478 S.W.3d 89, 93–

94 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (concluding that Penal Code

section 33.021(c), prohibiting solicitation of minor to engage in illegal sexual acts,

was not entitled to First Amendment protections because it regulated conduct and

unprotected speech). To determine whether conduct falls within the scope of the

First Amendment, courts consider whether an intent to convey a particularized

message is present, and whether the likelihood is great that the message will be

understood by those who receive it. Johnson, 491 U.S. at 404, 109 S. Ct. at 2539.

      Because the level of scrutiny we will apply depends upon whether the

provision is content-neutral or content-based, we must first construe Penal Code

section 37.12 to determine what type of conduct it covers. See Martinez v. State,

323 S.W.3d 493, 504–05 (Tex. Crim. App. 2010); see also Wagner v. State, 539

S.W.3d 298, 306 (Tex. Crim. App. 2018) (“The first step in overbreadth analysis is

to construe the challenged statute; it is impossible to determine whether a statute

reaches too far without first knowing what the statute covers.”) (citing United

States v. Williams, 553 U.S. 285, 293, 128 S. Ct. 1830, 1838 (2008)).

      To determine the meaning of the statute, we apply rules of statutory

construction to the statutory text. Wagner, 539 S.W.3d at 306. We interpret the

statute “in accordance with the plain meaning of its language unless the language is


                                          7
ambiguous or the plain meaning leads to absurd results that the Legislature could

not possible have intended.” Id. (citing Sanchez v. State, 995 S.W.2d 677, 683

(Tex. Crim. App. 1999)). We must read words and phrases in context and construe

them according to the rules of grammar and usage. Id.; see TEX. GOV’T CODE ANN.

§ 311.011(a) (West 2013) (“Words and phrases shall be read in context and

construed according to the rules of grammar and common usage.”). “We presume

that every word has been used for a purpose and that each word, phrase, clause,

and sentence should be given effect if reasonably possible.” Wagner, 539 S.W.3d

at 306; Arteaga v. State, 521 S.W.3d 329, 334 (Tex. Crim. App. 2017). “If the

language of the statute is plain, we will effectuate that plain language without

resort to extra-textual sources.” Wagner, 539 S.W.3d at 306; Cary v. State, 507

S.W.3d 750, 756 (Tex. Crim. App. 2016).

B.    Construction of Penal Code section 37.12

      We first construe Penal Code section 37.12 to determine the nature of the

conduct addressed by the provision.

      Section    37.12,     titled   “False     Identification    as    Peace     Officer;

Misrepresentation of Property,”2 provides in relevant part:


2
      This provision is distinct from Penal Code section 37.11, which prohibits
      impersonating a public servant “with intent to induce another to submit to his
      pretended official authority or to rely on his pretended official acts” or “knowingly
      purport[ing] to exercise any function of a public servant or of a public office,
      including that of a judge and court, and the position or office through which he
                                            8
     (a) A person commits an offense if:

         (1) the person makes, provides to another person, or possesses a
         card, document, badge, insignia, shoulder emblem, or other item,
         including a vehicle, bearing an insignia of a law enforcement
         agency that identifies a person as a peace officer or a reserve law
         enforcement officer; and

         (2) the person who makes, provides, or possesses the item bearing
         the insignia knows that the person so identified by the item is not
         commissioned as a peace officer or reserve law enforcement
         officer as indicated on the item.

     (b) It is a defense to prosecution under this section that:

         (1) the card, document, badge, insignia, shoulder emblem, or other
         item bearing an insignia of a law enforcement agency clearly
         identifies the person as an honorary or junior peace officer or
         reserve law enforcement officer, or as a member of a junior
         posse; or

         (2) the person identified as a peace officer or reserve law
         enforcement officer by the item bearing the insignia was
         commissioned in that capacity when the item was made.

     (b-1) It is an exception to the application of this section that the item
     was used or intended for use exclusively for decorative purposes or in
     an artistic or dramatic presentation.

TEX. PENAL CODE ANN. § 37.12 (West 2016).3


     purports to exercise a function of a public servant or public office has no lawful
     existence under the constitution or laws of this state or of the United States.” TEX.
     PENAL CODE ANN. § 37.11 (West 2016).
3
     Penal Code section 37.12 was amended, effective September 1, 2017, to add the
     language “including a vehicle” to section (a)(1) and to create section (b-1), which
     renamed a previous defense applicable to an “item . . . used or intended for use
     exclusively for decorative purposes or in an artistic or dramatic presentation” as
     “an exception to the application” of section 37.12. See Act June 15, 2017, 85th
     Leg., R.S., ch. 982, § 3, sec. 3 2017 Tex. Sess. Law Serv. 4001, 4001–02 (West)
                                           9
      Thus, section 37.12 prohibits a person from making, providing, or

possessing an item “bearing an insignia of a law enforcement agency that identifies

a person as a peace officer or a reserve law enforcement officer” when that person

“knows that the person so identified by the item is not commissioned as a peace

officer or reserve law enforcement officer as indicated on the item.” Id.

§ 37.12(a)(2). Under its plain language, the statute does not prohibit making,

providing, or possessing law enforcement identification or other items generally.

Rather, it prohibits the creation, provision, or possession of such an item that

“identifies a person as a peace officer” when the maker, provider, or possessor

knows that the person identified by the item is in fact not a peace officer. Id.

§ 37.12(a); Gatewood v. State, 156 S.W.3d 679, 680–81 (Tex. App.—Amarillo

2005, pet. ref’d) (construing elements of section 37.12); Fallin v. State, 93 S.W.3d

394, 395–97 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (construing

section 37.12 and holding, “A person commits an offense if he knowingly

possesses such a card [bearing law enforcement insignia] identifying him as a

peace officer and he knows he is not a commissioned peace officer”).4



      (to be codified at TEX. PENAL CODE § 37.12). Because these changes are
      immaterial to our analysis here, we use the most current version of the statute.
4
      Other courts have addressed the elements of an offense under Penal Code section
      37.12 in non-published opinions. See Celis v. State, No. 13-10-00659-CR, 2013
      WL 1189007, at *2–4 (Tex. App.—Corpus Christi Mar. 21, 2013, pet. ref’d)
      (mem. op., not designated for publication) (finding evidence legally sufficient to
                                          10
      The statute expressly provides that the offense does not apply to items “used

or intended for use exclusively for decorative purposes or in an artistic or dramatic

presentation.” TEX. PENAL CODE ANN. § 37.12(b-1). The statute also provides that

it is a defense to prosecution if: (1) the item “clearly identifies the person as an

honorary or junior peace officer or reserve law enforcement officer, or as a

member of a junior posse” or (2) “the person identified as a peace officer or

reserve law enforcement officer by the item bearing the insignia was

commissioned in that capacity when the item was made.” Id. § 37.12(b)(1)–(2).




      support appellant’s conviction under section 37.12 when he displayed badge
      identifying him as “a reserve deputy sheriff” of Duval County and intervened in
      police questioning of suspect in another crime); Hudson v. State, No. 12-03-
      00035-CR, 2004 WL 1852965, at *2–3 & n.1 (Tex. App.—Tyler Aug. 18, 2004,
      pet. ref’d) (mem. op., not designated for publication) (holding evidence was
      sufficient under section 37.12 when, in interacting with member of public,
      appellant wore hat with letters “D.P.S.” that constituted insignia identifying him as
      peace officer, and noting that legislature did not intend to criminalize mere
      possession of coffee mug or t-shirt bearing initials or emblem of agency such as
      F.B.I. or D.P.S., and that appellant did not raise defense to prosecution for items
      used exclusively for decorative purposes); Davis v. State, No. 05-95-01499-CR,
      1997 WL 348545, at *2–3 (Tex. App.—Dallas June 25, 1997, no pet.) (mem. op.,
      not designated for publication) (holding that evidence was sufficient to support
      appellant’s conviction for false identification as peace office when he possessed
      identification card identifying him as “police” associated with “the Department of
      Public Safety” but also stated that card was issued by Rio Grande Pacific Railways
      safety organization); Hearn v. State, No. 01-91-00014-CR, 1992 WL 91238, at
      *1–2 (Tex. App.—Houston [1st Dist.] May 7, 1992, no pet.) (mem. op., not
      designated for publication).
                                           11
C.    Section 37.12 Does Not Proscribe Speech Protected by the First
      Amendment

      Sauder argues that section 37.12 is a content-based restriction on

constitutionally protected speech, and, thus, it is subject to stricter scrutiny in our

analysis of its constitutionality. We disagree.

      As discussed above, section 37.12 prohibits the making, providing, or

possessing of “a card, document, badge, insignia, shoulder emblem, or other item

. . . bearing an insignia of a law enforcement agency that identifies a person as a

peace officer” when “the person who makes, provides, or possesses the item

bearing the insignia” does so knowing “that the person so identified by the item is

not commissioned as a peace officer . . . as indicated on the item.” See id.

§ 37.12(a); Gatewood, 156 S.W.3d at 680–81; Fallin, 93 S.W.3d at 395–97.

      Sauder contends that although section 37.12 does not address actual speech,

the conduct outlined in that section is symbolic or expressive conduct that

implicates the First Amendment. See Johnson, 491 U.S. at 404, 109 S. Ct. at 2539.

We consider the conduct addressed under section 37.12 to determine whether an

intent to convey a particularized message is present, and whether the likelihood is

great that the message will be understood by those who receive it. See id. By its

plain language, section 37.12 implicates symbolic or expressive conduct intended

to convey a particularized message that would likely be understood by those who

receive it. Here, the particular message conveyed is that the person identified is

                                          12
commissioned as a peace officer.      A person commits an offense by making,

providing, or possessing an item that falsely communicates a person’s identity as a

peace officer. See TEX. PENAL CODE ANN. § 37.12(a).

      We conclude that the symbolic or expressive conduct proscribed by section

37.12 is not the type of communication protected by the First Amendment. See

Alvarez, 567 U.S. at 717–18, 132 S. Ct. at 2544 (recognizing several categories of

speech that do not fall under First Amendment protections, including fraud and

speech integral to criminal conduct); Johnson, 491 U.S. at 404, 109 S. Ct. at 2539

(recognizing limitation on protections of symbolic speech); O’Brien, 391 U.S. at

376, 88 S. Ct. at 1678 (holding that First Amendment protections do not include all

modes of “communication of ideas by conduct”); Ex parte Wheeler, 478 S.W.3d at

93–94 (recognizing that some types of expressive conduct or speech are not

entitled to First Amendment protections).

      Sauder argues that section 37.12’s restrictions on the making, providing, or

possessing of an item bearing the insignia of a law enforcement agency might

encompass a protester or supporter of a particular agency possessing a sign, item of

clothing, or document bearing the insignia. Thus, to determine whether section

37.12 proscribes conduct involving only unprotected speech, we must consider the

specific types of criminal intent delineated by the statute and the conduct such

intent requirements seek to proscribe. See Ex parte Thomspon, 442 S.W.3d at 337


                                        13
(“[T]he mere existence of an intent element does not by itself eliminate First

Amendment concerns posed by a statute; it is the specific type of intent that

matters.” (internal footnotes omitted)); Stubbs, 502 S.W.3d at 226–27.

      Section 37.12 expressly provides that a person commits an offense when he

“knows” that the person identified by an item bearing an insignia of a law

enforcement agency is not commissioned as a peace officer as indicated on the

item. See TEX. PENAL CODE ANN. § 37.12(a). By prohibiting a person from

knowingly and falsely identifying a person as a peace officer by “making,”

“providing,” or “possessing” an item bearing the insignia of a law enforcement

agency, section 37.12 regulates only false or fraudulent communicative conduct.

See id. The government may restrict speech “made to effect a fraud or secure

moneys or other valuable considerations . . . without affronting the First

Amendment.” Alvarez, 567 U.S. at 723, 132 S. Ct. at 2547; Stubbs, 502 S.W.3d at

227 (holding that First Amendment permits regulation of conduct involving

fraudulent speech) (citing United States v. Stevens, 559 U.S. 460, 468, 130 S. Ct.

1577, 1584 (2010)).

      Sauder’s argument ignores the provisions of the statute requiring that, to

commit an offense, a person must “make[], provide[] to another person, or

possess[] a card . . . or other item . . . bearing an insignia of a law enforcement

agency that identifies a person as a peace officer” and must do so knowing “that


                                        14
the person so identified by the item is not commissioned as a peace officer . . . as

indicated on the item.” TEX. PENAL CODE ANN. § 37.12(a) (emphasis added).

Thus, someone carrying a protest sign with a law enforcement insignia or wearing

an item of clothing in support of such an agency is not “bearing an insignia of a

law enforcement agency that identifies [him] as a peace officer.” See id. Section

37.12, by its plain language, applies only to the knowing false identification of

someone as a peace officer by making, providing, or possessing an item bearing

the insignia of a law enforcement agency.

      Accordingly, we reject Sauder’s contention that section 37.12 is a content-

based restriction on constitutionally protected speech and apply the presumption of

constitutionality and place the burden of demonstrating unconstitutionality on

Sauder in our review. See, e.g., Ex parte Wheeler, 478 S.W.3d at 94.

D.    Section 37.12 is not Overbroad on its Face

      In his first issue, Sauder argues that section 37.12 is overbroad under the

First Amendment’s overbreadth doctrine.

      “According to the First Amendment overbreadth doctrine, a statute is

facially invalid if it prohibits a ‘substantial’ amount of protected speech ‘judged in

relation to the statute’s plainly legitimate sweep.’” Id. (quoting Ex parte Lo, 424

S.W.3d at 18 and Virginia v. Hicks, 539 U.S. 113, 118–19, 123 S. Ct. 2191, 2196

(2003)); see Wagner, 539 S.W.3d at 310.           “Thus, the overbreadth doctrine


                                         15
prohibits the government from ‘banning unprotected speech if a substantial amount

of protected speech is prohibited or chilled in the process.’” Wagner, 539 S.W.3d

at 310 (quoting Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255, 122 S. Ct.

1389, 1404 (2002)). The First Amendment overbreadth doctrine “provides an

exception” to the general rule that a facial challenge to the constitutionality of a

statute can succeed only when it is shown that the statute is unconstitutional in all

of its applications. Wagner, 539 S.W.3d at 310 (citing State v. Johnson, 475

S.W.3d 860, 864 (Tex. Crim. App. 2015) and Wash. State Grange v. Wash. State

Republican Party, 552 U.S. 442, 449 n.6, 128 S. Ct. 1184, 1190 (2008)).

However, “[t]he overbreadth doctrine is ‘strong medicine’ to be employed with

hesitation and only as a last resort.” Id. (quoting Ex parte Thompson, 442 S.W.3d

at 349). Stated another way, “a statute should not be invalidated for overbreadth

merely because it is possible to imagine some unconstitutional application.” Ex

parte Wheeler, 478 S.W.3d at 94.

      Considering whether section 37.12 “prohibits a ‘substantial’ amount of

protected speech” judged “‘in relation to the statute’s plainly legitimate sweep,’”

we conclude that it is not overbroad. See Wagner, 539 S.W.3d at 310; Ex parte

Wheeler, 478 S.W.3d at 94.         Section 37.12 prohibits conduct—i.e., making,

providing, or possessing items that identify someone as a peace officer when the

maker, provider, or possessor knows that the person so identified is not a peace


                                         16
officer. It is narrowly tailored to include making, providing, or possessing an item

with knowledge that it misidentifies the bearer of the item as a peace officer, and

the statute itself excludes certain types of conduct, such as possessing such an item

for decorative or artistic purposes. See TEX. PENAL CODE ANN. § 37.12(a)–(b). As

discussed above, to the extent that section 37.12 could be used to curb some forms

of symbolic speech, such speech—i.e., using symbolic communication to

knowingly misidentify oneself or another as a peace officer—is speech incident to

criminal conduct or fraud and is not protected speech. See Alvarez, 567 U.S. at

717–18, 132 S. Ct. at 2544. Thus, such a restriction does not reach a substantial

amount of constitutionally protected speech or conduct. See Wagner, 539 S.W.3d

at 310; Ex parte Wheeler, 478 S.W.3d at 94.

      Furthermore, by criminalizing conduct that falsely identifies a person as a

peace officer, the legislature acted with a “plainly legitimate” concern to protect

the public from being deceived by people who wrongly identify themselves as

peace officers and to preserve “the general good repute and dignity of the

[government] service itself.” See United States v. Lepowitch, 318 U.S. 702, 704,

63 S. Ct. 914, 916 (1943); Wagner, 539 S.W.3d at 310; Ex parte Wheeler, 478

S.W.3d at 94.

      We conclude that section 37.12 does not prohibit protected speech,

especially when judged “‘in relation to the statute’s plainly legitimate sweep.’” See


                                         17
Wagner, 539 S.W.3d at 310; Ex parte Wheeler, 478 S.W.3d at 94. Rather, the only

speech or expressive conduct that it prohibits is not protected by the First

Amendment. See Alvarez, 567 U.S. at 717–18, 132 S. Ct. at 2544 (recognizing

several categories of speech that do not fall under First Amendment protections,

including fraud and speech integral to criminal conduct); Ex parte Wheeler, 478

S.W.3d at 93–94 (recognizing that some types of expressive conduct or speech are

not entitled to First Amendment protections).

      Sauder argues, however, that the statute is nevertheless overbroad because it

“criminalizes the mere ‘possession’ of an item bearing the insignia of a law

enforcement agency that identifies a person as a peace officer when the person

knows they are not a peace officer”; and he illustrates his argument by pointing out

that people might possess badges or other items bearing the insignia of a law

enforcement agency as part of a collection, for research or academic purposes, or

for purposes of either supporting or protesting a particular agency. However, the

language of the statute does not encompass “mere possession” but rather knowingly

possessing an item that misidentifies the bearer as a peace officer. As the State

points out in its briefing, badges, certificates, and other items contained within a

collection or used for academic purposes do not “identif[y] a person as a peace

officer or a reserve law enforcement officer,” and the provision contains a clear

intent element in that the misidentification through making, providing, or


                                        18
possessing an item bearing the insignia of a law enforcement agency must be done

knowingly. See TEX. PENAL CODE ANN. § 37.12(a).

         We are also mindful that “[t]he overbreadth doctrine is ‘strong medicine’ to

be employed with hesitation and only as a last resort.” Wagner, 539 S.W.3d at 310.

We will not invalidate section 37.12 for overbreadth “merely because it is possible

to imagine some unconstitutional application.” See Ex parte Wheeler, 478 S.W.3d

at 94.

         We overrule Sauder’s first issue.

E.       Section 37.12 is not Unconstitutionally Vague on its Face

         In his second issue, Sauder argues that Penal Code section 37.12 is void for

vagueness under the Fourteenth Amendment to the United States Constitution.

         “Under the void-for-vagueness doctrine, a statute will be invalidated if it

fails to give a person of ordinary intelligence a reasonable opportunity to know

what conduct is prohibited.” Id. at 96 (citing State v. Holcombe, 187 S.W.3d 496,

499 (Tex. Crim. App. 2006)); see also Wagner, 539 S.W.3d at 313 (“A conviction

fails to comport with due process if the statute under which it is obtained fails to

provide a person of ordinary intelligence fair notice of what is prohibited, or is so

standardless     that   it   authorizes   or        encourages   seriously   discriminatory

enforcement.”). “Perfect clarity” and “precise guidance” are not required, even

when      regulations restrict    expressive activity, and          “[a] statute is not


                                               19
unconstitutionally vague merely because the words or terms used are not

specifically defined.” Wagner, 539 S.W.3d at 314; see Ex parte Wheeler, 478

S.W.3d at 96.

      “Rather, ‘the words or phrase[s] must be read in the context in which they

are used,’ and ordinarily the statute must then be construed according to the rules

of grammar and common usage.” Wagner, 539 S.W.3d at 314 (quoting Bynum v.

State, 767 S.W.2d 769, 774 (Tex. Crim. App. 1989)). “A statute satisfies

vagueness requirements if the statutory language ‘conveys sufficiently definite

warning as to the proscribed conduct when measured by common understanding

and practices.’” Id. (quoting Jordan v. De George, 341 U.S. 223, 231–32, 71 S. Ct.

703, 707–08 (1951)).

      Penal Code section 37.12 prohibits a person from making, providing, or

possessing an item “bearing an insignia of a law enforcement agency that identifies

a person as a peace officer or a reserve law enforcement officer” when the maker,

provider, or possessor “knows that the person so identified by the item is not

commissioned as a peace officer or reserve law enforcement officer as indicated on

the item.” TEX. PENAL CODE ANN. § 37.12(a). The section is entitled, “False

Identification as Peace Officer; Misrepresentation of Property,” and it is in the

chapter of the Penal Code addressing “Perjury and Other Falsification.” See id.

Considering the language of the statute in context and giving the words their


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general meaning, a person of ordinary intelligence would understand that he is

prohibited from knowingly making, providing, or possessing an item bearing a law

enforcement insignia that misidentifies its bearer as a peace officer. See Wagner,

539 S.W.3d at 314; Ex parte Wheeler, 478 S.W.3d at 96; see also TEX. PENAL

CODE ANN. § 37.12(a) (setting out offense of false identification as peace officer);

Gatewood, 156 S.W.3d at 679–81 (discussing elements of section 37.12).

      Sauder argues that section 37.12 is unconstitutionally vague on its face

because “there is no intent to harm, or defraud listed in the statute.” However, this

argument ignores the clear language in the statute requiring that a person act

knowingly in making, providing, or possessing an item that misidentifies someone

as a peace officer. See TEX. PENAL CODE ANN. § 37.12(a)(2). Furthermore, section

37.12 does not apply vaguely to “mere possession”; the statute specifies that the

item must “identif[y] a person as a peace officer or a reserve law enforcement

officer.” See id. § 37.12(a)(1).

      Sauder also argues that Gatewood demonstrates the vagueness of section

37.12, specifically the provision’s failure to define particular terms such as “law

enforcement agency,” in that it permitted Gatewood to be convicted under section

37.12 for possessing a badge for a nonexistent agency. However, Sauder

misrepresents the court’s reasoning. In Gatewood, the appellant, who was a

member of an organization known as the “Republic of Texas,” was convicted on


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the basis of possessing a metal, star-shaped badge identifying himself as a

“Sheriff” of the “Republic of Texas.” 156 S.W.3d at 679–80. The Amarillo Court

of Appeals acknowledged that the Republic of Texas was not an official law

enforcement agency, but it also observed that the office of “sheriff” is an official

office and that a “sheriff” is recognized under state law as a peace officer who

performs both administrative and law enforcement duties. Id. at 680–81. Thus, the

Amarillo Court held,

      [W]e cannot but conclude that the office of “sheriff” in Texas
      constitutes an “official” law enforcement agency. This, coupled with
      the evidence that the word “sheriff” appeared on the badge appellant
      wore, the badge likened to others utilized by official law enforcement
      agencies in Texas, the badge contained a lone star (our state’s
      emblem), and the word “Texas” appeared in the star, constitutes
      sufficient evidence upon which a fact finder could rationally conclude,
      beyond a reasonable doubt, that appellant possessed an insignia of an
      official law enforcement agency identifying him as a commissioned
      peace officer. And, that the badge may have also contained language
      of an entity falling outside the scope of such an agency does not
      require us to hold otherwise.

Id. at 681. Thus, considering the totality of the court’s reasoning in Gatewood, we

cannot agree with Sauder that the case evidences a lack of clarity regarding the

nature of the conduct prohibited by section 37.12.

      We also observe that, while the statute does not define certain terms such as

“law enforcement agency,” “badge,” “emblem,” “art,” or “décor,” a “statute is not

unconstitutionally vague merely because the words or terms used are not

specifically defined.” See Wagner, 539 S.W.3d at 314 (citing Bynum, 767 S.W.2d

                                        22
at 774). The terms used in section 37.12 can, as discussed above, be clearly

understood according the rules of grammar and common usage. See id. “[P]erfect

clarity and precise guidance have never been required” to prevent a statute from

being void for vagueness. See id.

      We conclude that the statute satisfies the vagueness requirements by

conveying “sufficiently definite warning as to the proscribed conduct when

measured by common understanding and practices.” See id. We overrule Sauder’s

second issue.

                                    Conclusion

      We affirm the trial court’s denial of Sauder’s habeas petition.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Jennings, Keyes, and Higley.

Publish. TEX. R. APP. P. 47.2(b).




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