Affirmed and Opinion filed November 10, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00663-CR

                 EX PARTE MARCOS M. FLORES, Appellant

           On Appeal from the County Criminal Court at Law No. 5
                           Harris County, Texas
                       Trial Court Cause No. 1969753

                                  OPINION

      Appellant Marcos Flores was charged with the offense of unlawfully
carrying a handgun in a vehicle as a member of a criminal street gang. See Tex.
Pen. Code Ann. §§ 46.02(a-1)(2)(C), 71.01(d) (West Supp. 2014). Appellant filed
pre-trial applications for writ of habeas corpus challenging the constitutionality of
the statute. After a hearing, the trial court issued an order denying the applications.
Appellant challenges the trial court’s denial on three grounds.

      In his first issue, appellant argues the statute violates the First Amendment to
the United States Constitution because it is a content-based regulation of
expression that fails to satisfy strict scrutiny and because it restricts freedom of
association. We conclude the statute is not subject to strict scrutiny because it is
justified without reference to the content of any expression and does not infringe
any right of intimate or expressive association. In his second issue, appellant
argues the statute is unconstitutional because the terms “criminal street gang” and
“member” are overbroad.            In his third issue, appellant argues the statute is
unconstitutionally vague and provides law enforcement with unfettered discretion
to arrest individuals. We conclude that appellant’s arguments rely on an incorrect
construction of the statute and that the statute is neither overbroad nor vague when
correctly construed.       We therefore affirm the trial court’s denial of the writ
applications.

                                        BACKGROUND

       Although the charging instrument is not in our record, the parties agree that
appellant was charged by information with the misdemeanor offense of unlawfully
carrying a weapon as a member of a criminal street gang.1 Appellant filed a
pretrial application for writ of habeas corpus and an amended application
challenging the constitutionality of the statute. After a hearing, the trial court
stated that “a reasonable construction may be ascertained from the statute that
renders it constitutional” and denied appellant’s requested relief. This appeal
followed.




       1
          Other appellate courts have affirmed denials of pretrial habeas applications raising
constitutional challenges on the ground that the charging instrument is not in the record, and
therefore the appellant has not carried his burden of demonstrating his entitlement to relief. See
Ex parte Barnett, 424 S.W.3d 809, 811 (Tex. App.—Waco 2014, no pet.); Turner v. State, No.
12-09-00388-CR, 2011 WL 686409, at *2 (Tex. App.—Tyler Feb. 28, 2011, no pet.) (mem. op.,
not designated for publication). We need not address whether a similar disposition is appropriate
here because we conclude for other reasons that the trial court did not err in denying the
applications.

                                                2
                                      ANALYSIS

I.    Appellant may bring his constitutional challenges via pretrial habeas.

      Pretrial habeas corpus proceedings are separate criminal actions, and the
applicant has the right to an immediate appeal before trial begins. Greenwell v.
Court of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 650 (Tex.
Crim. App. 2005). Pretrial habeas, followed by an interlocutory appeal, is an
extraordinary remedy, and we must be careful to ensure that a pretrial writ is not
misused to secure pretrial appellate review of matters that should not be put before
appellate courts at the pretrial stage. Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim.
App. 2010). A claim is cognizable in a pretrial writ of habeas corpus if, resolved
in the defendant’s favor, it would deprive the trial court of the power to proceed
and result in the appellant’s immediate release. Ex parte Smith, 185 S.W.3d 887,
892 (Tex. Crim. App. 2006) (citing Ex Parte Weise, 55 S.W.3d 617, 619 (Tex.
Crim. App. 2001).

      A claim that a statute is unconstitutional on its face may be raised by pretrial
writ of habeas corpus because the invalidity of the statute would render the
charging instrument void. Ex parte Weise, 55 S.W.3d at 620. Although pretrial
habeas can be used to bring a facial challenge to the constitutionality of the statute,
it may not be used to advance an “as applied” challenge. Ex parte Ellis, 309
S.W.3d at 79.

      The State argues that we may not address appellant’s three issues because
they are in fact “as applied” constitutional challenges and thus not cognizable in a
pretrial application for writ of habeas corpus. We disagree. In his three issues,
appellant argues that the statute is facially invalid because it is a content-based
restriction on speech and is both overbroad and vague. If we resolved these
arguments in appellant’s favor, the trial court would be deprived of the power to
                                          3
proceed and appellant would be released. See Ex parte Lo, 424 S.W.3d 10, 16–27
(Tex. Crim. App. 2013) (concluding statute at issue was overbroad, content-based
restriction on speech and remanding case for trial court to dismiss indictment); Ex
parte Ellis, 309 S.W.3d at 86 (noting that “[w]hen a vagueness challenge involves
First Amendment considerations, a criminal law may be held facially invalid even
if the law has some valid application” and addressing appellant’s vagueness
challenges); see also Long v. State, 931 S.W.2d 285, 297 (Tex. Crim. App. 1996)
(holding statutory provision unconstitutionally vague on its face and remanding
case to trial court for order dismissing prosecution).         Accordingly, appellant
properly raised his challenges in pretrial applications for writ of habeas corpus, and
we consider whether the trial court erred in denying the applications.

II.   Section 46.02(a-1)(2)(C) is not subject to strict scrutiny as a speech
      regulation or restriction on freedom of association.
      In his first issue, appellant argues that the statute is facially invalid under the
First Amendment to the United State Constitution because it (1) attaches criminal
sanctions to the otherwise-lawful behavior of displaying a sign or symbol, and (2)
restricts freedom of association.

      A.     Standard of review and applicable law

      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. Le v. State, 300 S.W.3d 324, 327 (Tex. App.—Houston
[14th Dist.] 2009, no pet.). Whether a statute is facially constitutional, however, is
a question of law that we review de novo. Ex parte Lo, 424 S.W.3d at 14.

      We usually begin analyzing a constitutional challenge with the presumption
that the statute is valid and that the Legislature has not acted unreasonably or

                                           4
arbitrarily. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). The
burden to establish the statute’s unconstitutionality rests upon the party mounting
the challenge. Id. The First Amendment’s prohibition of laws “abridging the
freedom of speech,” however, limits the government’s power to regulate speech
based on its substantive content. U.S. Const. amend. I; Reed v. Town of Gilbert,
Ariz., 135 S. Ct. 2218, 2226 (2015). When the government does so, the usual
presumption of constitutionality afforded legislative enactments is reversed.
United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 817 (2000). Content-
based regulations—meaning those that distinguish favored from disfavored speech
based on the idea or message expressed—are presumptively invalid, and the
government bears the burden to rebut that presumption. Ex parte Lo, 424 S.W.3d
at 15.

         Whether the provision is content-neutral or content-based dictates the level
of scrutiny that we will apply. Martinez v. State, 323 S.W.3d 493, 504–05 (Tex.
Crim. App. 2010).         We apply strict scrutiny to regulations that suppress,
disadvantage, or impose differential burdens upon speech because of its content.
Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994). Such a regulation
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 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. E.g.,
Turner Broad. Sys., 512 U.S. at 642; Ward v. Rock Against Racism, 491 U.S. 781,
791 (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. McCullen v. Coakley, 134 S. Ct. 2518, 2534-35 (2014); Ex


                                           5
parte Thompson, 442 S.W.3d 325, 344 (Tex. Crim. App. 2014).

      Although the First Amendment literally protects only speech, courts have
held that conduct may “possess sufficient communicative elements to bring the
First Amendment into play.” Texas v. Johnson, 491 U.S. 397, 404 (1989). 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. Id.

      B.     The statute’s regulation of speech is justified without reference to
             the content of a sign or symbol.
      Section 46.02(a-1)(2)(C) of the Texas Penal Code provides that a person
commits an offense if the person [i] intentionally, knowingly, or recklessly carries
on or about his or her person a handgun [ii] in a motor vehicle or watercraft that is
owned by the person or under the person’s control [iii] at any time in which the
person is a member of a criminal street gang as defined by Texas Penal Code
section 71.01. Tex. Pen. Code Ann. § 46.02(a-1)(2)(C) (West Supp. 2014). Under
section 71.01(d), criminal street gang is defined as “three or more persons having a
common identifying sign or symbol or an identifiable leadership who continuously
or regularly associate in the commission of criminal activities.” Tex. Pen. Code
Ann. § 71.01(d) (West 2011).

      Appellant    contends    section   46.02(a-1)(2)(C)    implicates   the   First
Amendment because it prohibits an individual from carrying a handgun in a
vehicle at any time the individual has an identifying sign or symbol. According to
appellant, the provision regulates expressive conduct based on its subject matter
because a gang’s signs, symbols, and attire are intended to convey the gang’s
existence and presence.     Appellant argues that the statute is a content-based

                                         6
restriction of speech because its application depends on the identifying content of
the sign or symbol displayed. Thus, the statute must satisfy strict scrutiny, which
appellant contends it cannot do because there are less speech-restrictive means of
achieving the State’s asserted safety interests. We conclude, however, that the
statute is subject to intermediate scrutiny.

       As the Supreme Court of the United States has recognized, some regulations
of speech or expressive conduct do not fall neatly into either the content-based or
content-neutral category. See City of Renton v. Playtime Theatres, Inc., 475 U.S.
41, 48 (1986). Typically, “a person possessing a gun has no intent to convey a
particular message, nor is any particular message likely to be understood by those
who view it.” Nordyke v. King, 319 F.3d 1185, 1190 (9th Cir. 2003). Of course,
the group of persons that this statute prohibits from carrying handguns in vehicles
may be defined in part by whether that group has a common identifying sign or
symbol. But it is far from clear that this statute regulates handgun possession in a
vehicle based on the message expressed by this sign or symbol, particularly given
that the sign or symbol need not be used in connection with the gun possession
(and may not be used at all if the group has an identifiable leadership). Nor does
the statute appear to draw a content-based distinction between different categories
of signs or symbols that are sufficiently communicative to be protected by the First
Amendment. Instead, it draws a communication-based distinction, covering any
common (i.e., shared) sign or symbol that is “identifying.”2

       On the other hand, the Court of Criminal Appeals held that an injunction

       2
          Although the content of the sign or symbol might need to be examined to determine
whether it is identifying, such an examination does not violate the First Amendment. See Hill v.
Colorado, 530 U.S. 703, 721–23 (2000) (holding statute prohibiting persons from approaching
within eight feet to engage in protest, education, or counseling was not subject to strict scrutiny
even though cursory examination might be necessary to exclude casual conversation from
statute’s coverage).

                                                7
prohibiting the use of gang hand signs or other symbols that identify membership
in a combination was content-based because it banned the particular message
associated with the signs or symbols. Martinez, 323 S.W.3d at 497, 505. The
court observed, however, that an order “bann[ing] all hand signs” would not be
content-based. Id. at 505.

       Ultimately, we need not determine whether a statute directly regulating
“common identifying” signs or symbols would be content-based. In this case, the
reference to such signs or symbols is part of a criminal statute regulating handgun
possession in vehicles. The Supreme Court has held that “[a] regulation that serves
purposes unrelated to the content of expression is deemed neutral, even if it has an
incidental effect on some speakers or messages but not others.” Ward, 491 U.S. at
791. If the regulation is aimed at the “secondary effects” that tend to accompany
such expression, so that it is “justified without reference to the content” of the
expression, the regulation will be subject to intermediate scrutiny. City of Renton,
475 U.S. at 47–48; see also R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 389–90
(1992); Ex parte Thompson, 442 S.W.3d at 345–46; Barber, 111 S.W.3d at 93–95,
100.

       Section 46.02(a-1)(2)(C) falls into this category because it is regulating not
the direct impact of viewing identifying signs, but the secondary effect of gun
violence by gang members who sometimes use such signs.             The State has a
compelling interest in ensuring the safety of its citizens by eliminating gang
violence and other criminal activities. Martinez, 323 S.W.3d at 505–06. The
justification of controlling such violence is unrelated to any message likely to be
expressed by identifying signs. See Asgeirsson v. Abbott, 696 F.3d 454, 461–62
(5th Cir. 2012) (holding Texas Open Meetings Act’s prohibition on speech
concerning public policy in closed meetings was subject to intermediate scrutiny

                                          8
because its purpose was to control secondary effects of closed meetings—such as
preventing transparency and encouraging corruption—that are unrelated to public
policy messages likely to be expressed in such meetings). Put another way, the
identifying content of a common sign is relevant under the statute not because the
State disagrees with that content, but because the sign identifies those people
whose possession of a handgun in a vehicle is more likely to lead to violent
secondary effects.3 In addition, a person can avoid the statute’s incidental limits on
use of identifying signs or symbols simply by not carrying a handgun in a vehicle,
which confirms that the statute’s focus is not on suppressing expression.4

       For these reasons, we hold appellant’s contention that section 46.02(a-
1)(2)(C) facially abridges freedom of speech is subject to intermediate scrutiny.
Appellant’s brief does not challenge the trial court’s implied finding that the statute
is constitutional under an intermediate scrutiny analysis, so we do not reach that
issue.5

       C.      The statute does not impair freedom of association in a manner
               requiring strict scrutiny.
       Appellant also argues that the statute is subject to strict scrutiny because it
impermissibly restricts the First Amendment right to freedom of association and

       3
          See Asgeirsson, 696 F.3d at 461 (observing that statute’s focus on speech concerning
public policy was relevant because only that speech would have the undesirable secondary
effects).
       4
         See Combs v. Tex. Entm’t Ass’n, 347 S.W.3d 277, 287–88 (Tex. 2011) (holding fee
imposed on certain clubs was not subject to strict scrutiny as content-based regulation of
expression because it was directed at secondary effects of dancing when alcohol is consumed and
could be avoided by not serving alcohol).
       5
          At oral argument, appellant did contend that the statute fails intermediate scrutiny and
also argued for the first time that the term “associate” is unconstitutionally vague because it is
distinct from the term “engage” used in Texas Penal Code section 46.02(a-1)(2)(A). We decline
to address these issues. See Tex. R. App. P. 38.1(f), 39.2; Moore v. State, 165 S.W.3d 118, 121
n.1 (Tex. App.—Fort Worth 2005, no pet.).

                                                9
assembly. We disagree. The First Amendment protects freedom of association in
two distinct contexts, neither of which is implicated here. One line of cases
involves certain “intimate human relationships [that] must be secured against
undue intrusion by the State because of the role of such relationships in
safeguarding the individual freedom that is central to our constitutional scheme.”
Roberts v. United States Jaycees, 468 U.S. 609, 617–18 (1984). These types of
relationships “are those that attend the creation and sustenance of a family.” Id. at
617–20 (discussing freedom of association in this context). Another line of cases
involves “a right to associate for the purpose of engaging in those activities
protected by the First Amendment—speech, assembly, petition for the redress of
grievances, and the exercise of religion.” Id. at 618. “[I]mplicit in the right to
engage in activities protected by the First Amendment [is] a corresponding right to
associate with others in pursuit of a wide variety of political, social, economic,
educational, religious, and cultural ends.” Id. at 622 (citing cases). This right of
“expressive association” does not provide generalized protection for “social
association,” however. City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989).

      Section 46.02(a-1)(2)(C) does not implicate the constitutional right to
freedom of association in either of these senses. The statute does not address
family relationships at all. Nor does it prevent gang members from gathering to
engage in any activities protected by the First Amendment, including the use of
identifying signs or symbols.     Indeed, unlike other statutes, it does not even
prevent them from “associat[ing] in the commission of criminal activities.” Tex.
Penal Code Ann. § 71.01(d). Rather, this statute prevents people from carrying
handguns in their vehicles—an activity that, as explained earlier, does not convey a
particular message—if they also regularly associate in committing criminal
activities. See Tex. Penal Code Ann. §§ 46.02(a-1)(2)(C), 71.01(d).          Because


                                         10
simply carrying a handgun in a vehicle is not, on its face, an expressive activity,
we hold that the statute does not infringe the First Amendment right to freedom of
association in any manner that requires the application of strict scrutiny. See
Osterberg v. Peca, 12 S.W.3d 31, 47 (Tex. 2000) (observing that infringement on
type of freedom to associate “that is instrumental to protecting First Amendment
freedoms” is “subject to the closest scrutiny”); see also Stanglin, 490 U.S. at 25
(applying rational-basis scrutiny under Equal Protection Clause when regulation
did not infringe rights of intimate or expressive association). Again, appellant does
not argue in his brief that the statute fails to withstand a lower level of scrutiny, so
we do not reach that question. We overrule appellant’s first issue.

III.   The statute is neither overbroad nor vague when correctly construed.
       In his second issue, appellant argues that section 46.02(a-1)(2)(C)
incorporates an unconstitutionally overbroad definition of “criminal street gang”
and uses the overbroad term “member” of such a gang in defining who may not
carry a handgun in a vehicle. In his third issue, appellant asserts that the terms
“member” and “criminal street gang” are also unconstitutionally vague.              We
address these issues together.

       A.    Overbreadth

       A statute or ordinance is facially overbroad if it reaches a substantial amount
of constitutionally protected conduct, such as speech or conduct protected by the
First Amendment. Duncantell v. State, 230 S.W.3d 835, 843 (Tex. App.—Houston
[14th Dist.] 2007, pet. ref’d); see Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 494 (1982). The overbreadth doctrine is “strong
medicine” to be employed with hesitation and only as a last resort. Ex parte
Thompson, 442 S.W.3d at 349. A statute will not be invalidated for overbreadth
merely because it is possible to imagine some unconstitutional applications. See

                                          11
Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S.
789, 800–01 (1984). Laws that inhibit the exercise of First Amendment rights will
be held facially invalid only if the impermissible applications of the law are
substantial when judged in relation to the statute’s plainly legitimate sweep.
Broadrick v. Oklahoma, 413 U.S. 601, 612–615 (1973).

      The first step in overbreadth analysis is to construe the challenged statute,
because it is impossible to determine whether a statute reaches too far without first
knowing what the statute covers. United States v. Williams, 553 U.S. 285, 293
(2008). In determining whether a law is unconstitutionally overbroad or vague, we
interpret a statute in accordance with the plain meaning of its language unless the
language is ambiguous or the plain meaning leads to an absurd result. Duncantell,
230 S.W.3d at 842–43. Words and phrases shall be read in context and construed
according to the rules of grammar and usage. Tex. Gov’t Code Ann. § 311.011
(West 2013); Tex. Penal Code Ann. § 1.05(b) (West 2011) (making section
311.011 applicable to the Texas Penal Code). When there are different ways the
statute can be construed, we apply the interpretation that sustains its validity. See
State v. Carmaco, 203 S.W.3d 596, 599 (Tex. App.—Houston [14th Dist.] 2006,
no pet.). The burden rests upon the person challenging the statute to establish its
unconstitutionality. Rodriguez, 93 S.W.3d at 69. We must uphold the statute if we
can determine a reasonable construction that will render it constitutional.
Duncantell, 230 S.W.3d at 843.

      B.     Vagueness

      When First Amendment freedoms are not implicated, a facial vagueness
challenge can succeed only if it is shown that the law is unconstitutionally vague in
all of its applications. Ex parte Ellis, 309 S.W.3d at 80. A statute is vague if
persons of common intelligence are incapable of deciphering what conduct is

                                         12
prohibited. See Watson v. State, 369 S.W.3d 865, 870 (Tex. Crim. App. 2012).

      When a vagueness challenge involves First Amendment considerations, a
criminal law may be held facially invalid even if the law has some valid
applications. Ex parte Ellis, 309 S.W.3d at 86. A criminal law that implicates
First Amendment freedoms must: (1) be sufficiently clear to afford a person of
ordinary intelligence a reasonable opportunity to know what is prohibited, (2)
establish determinate guidelines for law enforcement, and (3) be sufficiently
definite to avoid chilling protected expression.      Id.   The law need not be
mathematically precise; it need only give fair warning in light of common
understanding and be sufficiently definite to avoid the possibility of arbitrary and
erratic enforcement. Kfouri v. State, 312 S.W.3d 89, 92 (Tex. App.—Houston
[14th Dist.] 2010, no pet.).

      C.     Discussion

      When a party challenges a statute as both overbroad and vague, we address
the overbreadth challenge first. See Duncantell, 230 S.W.3d at 843. Appellant
asserts that the statutory definition of the term “criminal street gang,” which
section 46.02(a-1)(2)(C) borrows from section 71.01(d) of the Penal Code, is
overbroad and criminalizes constitutionally protected conduct. Appellant argues
that the term “criminal street gang” means three or more persons having either (1)
a common identifying sign, (2) a common identifying symbol, or (3) an
identifiable leadership who continuously or regularly associate in the commission
of criminal activities. Under appellant’s interpretation, three or more persons
qualify as a criminal street gang so long as they have a common identifying sign or
a common identifying symbol. The three or more persons need not, in appellant’s
view, continuously or regularly associate in the commission of criminal activities.
Appellant therefore submits that the statute “prohibits a wide array of

                                        13
constitutionally protected conduct by prohibiting groups of people from meeting,
congregating, or assembling, and having an identifying sign or symbol.” For
example, according to appellant, this prohibition necessarily applies to members of
the Boy Scouts of America.

       We conclude that appellant’s arguments rely on an incorrect construction of
the statute. Grammatically, the group of words “having a common identifying sign
or symbol or an identifiable leadership” is a participial phrase acting as an
adjective that modifies the noun “persons.” Thus, three or more persons meet the
definition of a criminal street gang only when they—in addition to having a
common identifying sign, a common identifying symbol, or an identifiable
leadership—continuously or regularly associate in the commission of criminal
activities.6 The statute does not apply to three or more persons solely because they
have a common identifying sign or symbol. Furthermore, as explained in Part II,
section 46.02(a-1)(2)(C) does not prohibit gathering with other members of a gang
or displaying any common identifying signs or symbols.

       Appellant argues that this interpretation is improper because it adds
language to the statute. But our interpretation does not add language; it gives the
statute its proper grammatical interpretation. Moreover, appellant’s interpretation
would lead to an absurd and—according to appellant—unconstitutional result. As
appellant acknowledges in his brief, we should not interpret the language of a
statute to lead to such results. Duncantell, 230 S.W.3d at 843. Instead, when a
statute can be construed in different ways, we apply the interpretation that sustains
its validity. See Carmaco, 203 S.W.3d at 599. Unlike appellant’s interpretation,
       6
          Other grammatical cues support this construction. For example, the parallel use of the
articles “a” and “an,” together with the conjunction “or,” suggests that an identifiable leadership
is part of the participial phrase. In addition, leadership is a collective noun that generally would
take a singular verb. But the following verb—associate—is plural, which indicates that it is
referring to association not by leadership but by persons (a plural noun).

                                                14
our construction of the statute both gives effect to its plain language and avoids an
interpretation that would lead to an absurd result.7

       Appellant also argues that even our construction of the term “criminal street
gang” is impermissibly overbroad.            Appellant posits an example involving a
political party with an identifying symbol that engages in voter fraud every other
election. Appellant argues that each element of the statute is satisfied, and thus the
members of the political party that engage in voter fraud qualify as a “criminal
street gang.” Even assuming appellant is correct, he fails to explain why such an
application makes the statute overbroad and cites no authority for the proposition
that voter fraud is constitutionally protected conduct. See Duncantell, 230 S.W.3d
at 844 (“Appellant has cited no authority, and we are aware of none, holding that
conduct, which a person knew or should have known would interrupt, disrupt,
impede, or interfere with a peace officer performing a duty imposed by law, such
as investigating an accident or arresting a criminal suspect, is expressive conduct
protected by the First Amendment. Accordingly, we hold that [such] conduct . . .
is not expressive conduct protected by the First Amendment.”).                       Appellant
therefore has not satisfied his burden of demonstrating that the impermissible
applications of the law, if any, are substantial when judged in relation to the
statute’s plainly legitimate sweep. Broadrick, 413 U.S. at 612–615. We hold the
term “criminal street gang” is not overbroad on its face.

       Next, appellant contends that the term “member” in section 46.02(a-1)(2)(C)

       7
          Appellant also argues the statute is ambiguous and that the rule of lenity resolves the
ambiguity in his favor. Appellant has not addressed what interpretation should result from an
application of the rule of lenity in this case, however, or explained why lenity would not favor
the narrower interpretation we adopt today over the broader interpretation appellant advocates in
other parts of his brief. The State responds that the rule of lenity does not apply in this case
because the Texas Penal Code does not require its provisions to be strictly construed. See Tex.
Pen. Code Ann. § 1.05(a) (West 2011). We need not resolve these arguments because the statute
is not ambiguous.

                                               15
is overbroad because the statute punishes any member of a criminal street gang
who knowingly carries a handgun in his vehicle, regardless of whether the member
knows of the gang’s criminal activities or carries the gun with the specific intent to
further those activities. Appellant argues that if three or more individuals have a
common identifiable leadership that continuously or regularly associates in the
commission of criminal activities, the statute reaches those individuals. According
to appellant, a member of a criminal street gang carrying a handgun in his vehicle
can be punished under the statute even if he participates solely in lawful conduct
by the gang. Furthermore, a member need not even be aware of the gang’s
criminal activities in order to be punished.

      We conclude that the term “member” is not unconstitutionally overbroad.
Appellant’s arguments that a defendant need not be involved in or even aware of
the gang’s criminal activities rely on his incorrect construction of the statute. The
term “member” in section 46.02(a-1)(2)(C) derives its content from the definition
of “criminal street gang” contained in section 71.01(d). Read together, these
provisions indicate that a gang “member” must be one of the three or more persons
who continuously or regularly associate in the commission of criminal activities.
See, e.g., Jackson v. State, 314 S.W.3d 118, 127–28 (Tex. App.—Houston [1st
Dist.] 2010, no pet.) (discussing cases and concluding “specific evidence of crimes
not committed by appellant was of very little probative value, if any, to show
appellant’s mental state to act as part of a criminal street gang” and thus the
evidence should have been excluded under Rule 403). When construed in this
way, appellant has not shown that the statute reaches a substantial amount of
constitutionally protected conduct. Cf. Lucario v. State, 677 S.W.2d 693, 698–99
(Tex. App.—Houston [1st Dist.] 1984, no writ) (holding statute criminalizing
intentional participation in combination that collaborates in carrying on criminal


                                          16
activity did not prohibit constitutionally protected conduct and was not vague).

      Finally, turning to appellant’s vagueness challenge, we conclude that it is
likewise premised upon his incorrect construction of the statute.          Appellant
contends the statute does not specify what conduct makes an individual a
“member” of a criminal street gang, and therefore it does not provide a person of
ordinary intelligence a reasonable opportunity to know what conduct is prohibited.
Appellant argues that the meaning of the term “member” cannot be derived from
the definition of “criminal street gang” under section 71.01(d) because section
46.02(a-1)(2)(C) does not limit its application solely to those members displaying
the gang’s sign or symbol. Rather, the statute also applies to those individuals with
a common identifying leadership where only the leadership—but not the
individuals—continuously or regularly associates in the commission of criminal
activities. In appellant’s view, the statute thus proscribes conduct that lacks any
ascertainable rules or guidelines to govern its enforcement. We conclude that these
arguments fail when the statute is correctly construed.
      To support his arguments, appellant relies on Lanzetta v. State of New
Jersey, 306 U.S. 451 (1939), a case in which the Supreme Court of the United
States addressed the constitutionality of a statute that provided:
      Any person not engaged in any lawful occupation, known to be a
      member of any gang consisting of two or more persons, who has been
      convicted at least three times of being a disorderly person, or who has
      been convicted of any crime, in this or in any other State, is declared
      to be a gangster.

Id. at 452. Appellant points to a portion of Lanzetta in which the Court states that
the expression “known to be a member” is ambiguous. Id. at 458. The Court took
issue with the phrase because the word “known” made it unclear whether “actual
or putative association [was] meant,” and “the statute fail[ed] to indicate what
constitutes membership or how one may join a ‘gang.’” Id.
                                          17
          Lanzetta is not on point because the statute here requires actual membership
in a criminal street gang. In addition, as discussed above, the statute does not
apply to those with a common identifying leadership when only the leadership
continuously or regularly associates in the commission of criminal activities.
Rather, the term “member” refers to one of the three or more persons who—in
addition to having a common identifying sign, a common identifying symbol, or an
identifiable leadership—continuously or regularly associate in the commission of
criminal activities. So understood, the term “member” is not so vague that people
“of common intelligence must necessarily guess at” what conduct is prohibited.
Rodriguez v. State, 47 S.W.3d 86, 92 (Tex. App.—Houston [14th Dist.] 2001, pet.
ref’d).

          Appellant next contends that the statute impermissibly delegates its
application to gang members because they decide what criminal activities to
associate in committing on a continuous or regular basis.8 According to appellant,
“it is the criminal street gang’s decision—and not the Legislature’s—that will
determine, at some time in the indefinite future, the conduct sought to be
prohibited by § 46.02(a-1)(2)(C).” Appellant argues that “[j]ust as a legislative
body may not delegate basic policy decisions to prosecutors and judges, such
matters should similarly not be delegated to the very criminals the penal statute
seeks to restrict.”

          We conclude that these arguments do not provide independent support for
appellant’s vagueness challenge. Every criminal statute, if viewed in the fashion
appellant suggests, would impermissibly delegate legislative policy decisions
          8
          In this portion of his brief, appellant argues in a footnote that the phrase “continuously
or regularly” lacks a “precise definition” because it depends upon the type of criminal activity
engaged in by the criminal street gang. But “perfect clarity and precise guidance have never
been required even of regulations that restrict expressive activity.” Ex parte Ellis, 309 S.W.3d at
86 (citing Williams, 553 U.S. at 304).

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because it is always the criminal’s decision “that will determine, at some time in
the indefinite future,” the statute’s application. A statute criminalizing murder is
not unconstitutional merely because it “delegates” the state’s policy against murder
to “the very criminals the penal statute seeks to restrict.”

      Appellant also argues that ambiguity in the term “criminal street gang,”
together with uncertainty regarding what conduct constitutes gang membership,
impermissibly provides law enforcement with unfettered discretion to arrest
individuals under the statute.       As we have explained, however, a correct
construction of the statute removes any ambiguity in the term “criminal street
gang” and clarifies what conduct makes an individual a “member” of the gang.

      The Court of Criminal Appeals faced a similar issue in Martinez v. State,
323 S.W.3d at 497. The trial court had enjoined the defendant, a member of a
street gang, from engaging in certain activities, including “[u]sing or making
words, phrases, physical gestures, or symbols, commonly known as gang hand
signs or engaging in other forms of communication which the Defendant knows,
describes, refers, or identifies members of the combination, or wearing clothes that
particularly identify membership within the combination.” Id. at 496–97. The
Court of Criminal Appeals “reject[ed] the notion that [this] provision . . . permitted
arbitrary and discriminatory enforcement.” Id. at 507–08. As the court explained,

      we have recognized the ability of law enforcement to know and
      determine gang affiliation by observing an individual’s clothing or
      tattoos. We therefore conclude that, under these circumstances, it is
      reasonable to defer to the district court judge’s determination that law
      enforcement patrolling the defined [area], based on their training and
      experience, would be able to recognize the hand gang signs and
      clothing associated with gangs in the area and to apply the provision
      in a non-arbitrary and non-discriminatory fashion.
Id. at 508 (footnotes omitted).

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      For similar reasons, we conclude that section 46.02(a-1)(2)(C) does not
provide law enforcement with unfettered discretion to arrest individuals or
otherwise authorize and encourage arbitrary and discriminatory enforcement.
Moreover, law enforcement may not arrest a person under this section merely
because they recognize gang signs or symbols. Instead, law enforcement must also
determine whether the person is carrying a handgun in a vehicle and whether he or
she continuously or regularly associates in the commission of criminal activity.
These tasks are well within ordinary law enforcement duties, and the statutory
requirements are sufficiently specific to be applied in a non-arbitrary and non-
discriminatory fashion.

      Appellant relies on City of Chicago v. Morales, 527 U.S. 41 (1999), to
support his vagueness argument. The ordinance at issue in Morales provided:
      Whenever a police officer observes a person whom he reasonably
      believes to be a criminal street gang member loitering in any public
      place with one or more other persons, he shall order all such persons
      to disperse and remove themselves from the area. Any person who
      does not promptly obey such an order is in violation of this section.

Id. at 65. The plurality concluded that the term “loiter”—defined as “to remain in
any one place with no apparent purpose”—was unconstitutionally vague due to the
“uncertainty about . . . what loitering is covered by the ordinance and what is not.”
Id. at 56–57 (plurality op.). In addition, a majority of the Court concluded that the
ordinance did not establish minimal guidelines to govern law enforcement because
it applied to loitering with no harmful purpose and to non-gang members as well as
suspected gang members. Id. at 60, 62–63.

      Appellant argues that like the ordinance in Morales, the statute here gives
law enforcement unfettered discretion because it requires no harmful purpose in
carrying a handgun and sanctions an ambiguous class of people. This argument


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fails under a correct construction of section 46.02(a-1)(2)(C). “Member” derives
its content from the definition of “criminal street gang.” To be a member, an
individual must be one of three or more persons with a common identifying sign,
symbol, or identifiable leadership and must also continuously or regularly associate
in the commission of criminal activities.      Therefore, law enforcement cannot
“decide arbitrarily which members of the public” will be subject to the statute. Id.
at 58 (plurality op.).

       For these reasons, we conclude that even if the statute implicates the First
Amendment, a correct construction demonstrates that the statute (1) is sufficiently
clear to afford a person of ordinary intelligence a reasonable opportunity to know
what is prohibited, (2) establishes determinate guidelines for law enforcement, and
(3) is sufficiently definite to avoid chilling any protected expression. Ex parte
Ellis, 309 S.W.3d at 86. We therefore hold the statute is not unconstitutionally
vague on its face. We overrule appellant’s second and third issues.

                                   CONCLUSION

       Having overruled appellant’s issues, we affirm the order of the trial court
denying appellant’s pretrial applications for writ of habeas corpus.




                                       /s/    J. Brett Busby
                                              Justice




Panel consists of Justices Jamison, Busby, and Brown.
Publish — TEX. R. APP. P. 47.2(b).



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