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                                                 OPINION

                                             No. 04-08-00546-CR

                                            Michael URDIALES,
                                                 Appellant

                                                      v.

                                            The STATE of Texas,
                                                  Appellee

                            From the County Court at Law No.1, Bexar County, Texas
                                            Trial Court No. 232465
                                 Honorable Brenda Chapman, Judge Presiding1

Opinion by: Phylis J. Speedlin, Justice
Concurring opinion by: Sandee Bryan Marion, Justice

Sitting:              Sandee Bryan Marion, Justice
                      Phylis J. Speedlin, Justice
                      Marialyn Barnard, Justice

Delivered and Filed: July 1, 2009

AFFIRMED

           On appeal, Michael Urdiales asserts that the criminal statute that proscribes “racing on a

highway” is unconstitutionally vague because it can be applied to the innocent conduct of mere

passing on a highway. See TEX . TRANSP . CODE ANN . § 545.420(a)(1) (Vernon Supp. 2008).

Specifically, Urdiales challenges the portion of the statute defining the type of “racing” with which



           1
               … Sitting by assignment.
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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). Because Urdiales

has failed to show how the statute is unconstitutionally vague as applied to his particular conduct,

we overrule his issues on appeal and affirm the trial court’s judgment.

                                  FACTUAL AND PROCEDURAL BACKGROUND

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

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

alleging that Urdiales did “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 . . . .”2 See TEX . TRANSP . CODE ANN . § 545.420(a)(1), (b)(2)(A) (Vernon

Supp. 2008). Urdiales moved to set aside the information on the ground that “both the information

and the statute on which it is based are unconstitutionally vague under both the Texas and United

States Constitutions.” After a hearing, the trial court denied the motion. Urdiales then pled no

contest, and was placed on deferred adjudication community supervision for a term of six months.

The trial court certified his right to appeal the denial of his pretrial motion to set aside the

information.

                                                      ANALYSIS

         In his first two issues on appeal, Urdiales contends the statute creating the offense of racing

on a highway by the manner and means of “outgaining or outdistancing” another vehicle is

unconstitutionally vague as applied to him and on its face, in violation of the Due Process Clauses

of the United States Constitution and the Texas Constitution. See U.S. CONST . amends. V, VI, XIV;


         2
             … The State amended the information to add the culpable mental states of “intentionally and knowingly” to
modify the word “participate.” W e note the statute itself does not refer to such a culpable mental state .

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TEX . CONST . art. I, §§ 10, 19. Specifically, he asserts the statute is impermissibly vague because it

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 discriminatory enforcement. In his

third issue, Urdiales asserts the trial court erred in refusing to set aside the information because it

tracked the language of the unconstitutional statute, and thus failed to meet the sufficiency

requirements of article 21.11 of the Texas Code of Criminal Procedure. See TEX . CODE CRIM . PROC.

ANN . art. 21.11 (Vernon 2009). The State responds that the statute is not unconstitutionally vague

because read as a whole it provides ordinary persons a reasonable opportunity to know what conduct

is prohibited, and establishes determinate guidelines for law enforcement.3 The State also claims

the information was sufficient because it tracked the statutory language.

         Standard of Review: Constitutionality of the Statute – Vagueness

         In determining the constitutionality of a statute, we begin with the presumption that it is valid

and that the legislature did not act arbitrarily or unreasonably in enacting the statute. Rodriguez v.

State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Roberts v. State, 278 S.W.3d 778, 790 (Tex.

App.—San Antonio 2008, pet. filed); Duncantell v. State, 230 S.W.3d 835, 842-43 (Tex.

App.—Houston [14th Dist.] 2007, pet. ref’d). We apply elementary principles of statutory

construction and interpret the statute in accordance with the plain meaning of its language, unless

the language is ambiguous or its plain meaning leads to absurd results. Sanchez v. State, 995 S.W.2d

677, 683 (Tex. Crim. App. 1999); Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991).


         3
          … The State asserts Urdiales waived his state due process claim by failing to present separate authorities and
argument. Although Urdiales alleges that both his state and federal due process rights were violated, his brief presents
no argument or authority that the Texas constitution provides different protection than the federal constitution; therefore,
we will make no distinction between his federal and state claims. Arnold v. State, 873 S.W .2d 27, 33 (Tex. Crim. App.
1993); Sturchio v. State, 136 S.W.3d 21, 23 (Tex. App.— San Antonio 2002, no pet.).



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In determining a statute’s plain meaning, we read the words and phrases in context, and construe

them according to the rules of grammar and common usage. TEX . GOV ’T CODE ANN . § 311.011(a)

(Vernon 2005); Sanchez, 995 S.W.2d at 683. Words and phrases that have acquired a particular

meaning through legislative definition, however, must be construed accordingly. TEX . GOV ’T CODE

ANN . § 311.011(b) (Vernon 2005). We may also consider other offense provisions in the same

statutory section. Long v. State, 931 S.W.2d 285, 291 (Tex. Crim. App. 1996). We must uphold the

statute if we can determine a reasonable construction that will render it constitutional. Roberts, 278

S.W.3d at 790; Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978) (if statute is capable

of two constructions, one of which sustains its validity, court will apply interpretation sustaining

validity). We will declare a criminal statute unconstitutionally vague if its prohibitions are not

clearly defined. Duncantell, 230 S.W.3d at 844.

       The court makes a two-pronged inquiry when evaluating a criminal statute for vagueness

under the Due Process Clause. Sanchez, 995 S.W.2d at 689. First, we determine whether the statute

gives ordinary law-abiding citizens sufficient information to know what conduct is prohibited. Id.;

Roberts, 278 S.W.3d at 791. A criminal statute is only required to give fair warning in light of

common understanding and practice; it is not required to be mathematically precise. Duncantell, 230

S.W.3d at 844-45. A statute is unconstitutionally vague only when “no core of prohibited activity

is defined.” Id. at 845. The second inquiry asks whether the statute provides law enforcement with

sufficient notice of the prohibited conduct to prevent arbitrary or discriminatory enforcement.

Sanchez, 995 S.W.2d at 689; Roberts, 278 S.W.3d at 791. A statute must adequately detail the

prohibited conduct so that enforcement is not relegated to the subjective interpretation of police




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officers on the scene. Duncantell, 230 S.W.3d at 845-46. Either inquiry may form an independent

basis for a vagueness finding. Id.

        Facial challenges to statutes are disfavored because they are often premised on speculation

and impinge on the democratic process. Washington State Grange v. Washington State Republican

Party, 128 S.Ct. 1184, 1191 (2008). A successful facial challenge to the constitutionality of a statute

under the Due Process Clause, that does not implicate the First Amendment,4 requires a showing that

the statute is vague in all of its applications, in other words, that it has no legitimate applications.

Sanchez, 995 S.W.2d at 683; Long, 931 S.W.2d at 295 (citing Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982)). In order for a statute to be held vague in all

its applications, and thus facially unconstitutional, it must necessarily be vague as applied to the

particular defendant; therefore, if the statute is not vague as applied to the defendant’s conduct, the

due process challenge necessarily fails. Sanchez, 995 S.W.2d at 683. A defendant must first show

the statute 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.” Village of Hoffman Estates, 455 U.S. at 495; see 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). Therefore, we must first determine whether Urdiales has

shown that the statute is impermissibly vague as applied to his particular conduct, and only if he has

made such a showing, will we then consider whether the statute is vague in all of its possible

applications.



        4
            … Both sides agree the statute at issue does not implicate any conduct protected by the First Amendment.

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         Is the Statute Impermissibly Vague “As Applied” to Urdiales’ Conduct ?

         Urdiales made no specific argument in his brief, or at oral argument, explaining how the

statute is unconstitutionally vague as applied to his particular conduct; indeed, he has never revealed

to this court what his particular conduct was in this case.5 See TEX . R. APP . P. 38.1(i); see also

DeWillis v. State, 951 S.W.2d 212, 217 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (overruling

vagueness challenge to statute that did not involve First Amendment rights because “appellant has

failed to explain how the harassment statute is unconstitutional as applied to him”); Townsend v.

State, No. 14-96-01571-CR, 1999 WL 1267255, at *2 (Tex. App.—Houston [14th Dist.] Dec. 30,

1999, pet. ref’d) (not designated for publication) (holding that appellant failed to establish that

statute was unconstitutionally vague because he did “not explain how this statute is unconstitutional

as applied to him”); State v. Johns, No. 05-97-00862-CR, 1998 WL 549267, at *3 (Tex. App.—

Dallas Aug. 31, 1998, no pet.) (not designated for publication) (in analyzing vagueness challenge

to harassment statute that did not raise any First Amendment implications, court held the appellee

failed to demonstrate how the statute is unconstitutional as applied to him); Trehern v. State, No. 03-

97-00600-CR, 1998 WL 766736, at *5 (Tex. App.—Austin Nov. 5, 1998, no pet.) (not designated

for publication) (“Because no First Amendment rights are involved, we need only determine whether

[the statute] is impermissibly vague as applied to appellant’s conduct. [internal citation omitted]

Appellant has failed to explain how the harassment statute is unconstitutional as applied to him.”).

Urdiales’ entire argument, in his brief and at oral argument, is that the statute is impermissibly vague

as to everyone—yet he has failed to explain how the law is too vague as applied to his particular


         5
          … See, e.g., Perez v. State, No. 04-08-00263-CR, 2009 W L 1017706 (Tex. App.—San Antonio Apr. 15, 2009,
no pet.) (not designated for publication) (overruling challenge to sufficiency of the evidence and affirming highway
racing conviction by “outgaining or outdistancing” another vehicle where defendant’s vehicle was observed maintaining
a very close proximity with the other vehicle while both traveled at a high rate of speed).

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conduct. Given the absence of an “as applied” argument, we conclude that Urdiales has failed to

show that the highway racing statute is unconstitutionally vague as applied to him; therefore, we do

not reach the issue of whether the statute is unconstitutionally vague on its face.6 Village of Hoffman

Estates, 455 U.S. at 495; Sanchez, 995 S.W.2d at 683; Bynum, 767 S.W.2d at 773-74. Accordingly,

we overrule Urdiales’ first two issues.

         Sufficiency of the Indictment

         In his third issue, Urdiales asserts the information, which tracked the language of the racing

on a highway statute, failed to meet the sufficiency requirements of article 21.11 of the Texas Code

of Criminal Procedure, and the trial court should have granted his motion to set it aside. TEX . CODE

CRIM . PROC. ANN . art. 21.11 (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”); TEX . CODE CRIM . PROC. ANN . art. 21.23 (Vernon

2009) (stating the rules with respect to allegations in an indictment also apply to an information).

Because it is a question of law, we review the sufficiency of an indictment or information de novo.



         6
            … The clerk’s record contains the information, Urdiales’ nolo plea and waiver of his rights, and the trial
court’s admonishments, but because this is a misdemeanor offense the record contains no stipulation of the evidence
against him. The record before us is completely devoid of any evidence showing the particular facts and circumstances
of Urdiales’ conduct that gave rise to the highway racing charge. W e have no evidence regarding the particular conduct
in which Urdiales engaged. It would appear that we would have no basis on which to conduct an “as applied” analysis
of the statute in the absence of such evidence, but the law is somewhat unclear. Compare Gillenwaters v. State, 205
S.W .3d 534, 536 nn. 3-4, 537-38 (Tex. Crim. App. 2006) (noting that because an “as applied” analysis is based on the
claimant’s particular circumstances, and thus is fact specific and “requires a recourse to evidence,” it usually cannot be
properly raised by a pretrial motion to quash the charging instrument; defendant did preserve the issue for appeal by
raising it in a motion for new trial), with Karenev v. State, 281 S.W .3d 428, 441 (Tex. Crim. App. 2009) (Cochran, J.,
concurring) (“The mere fact that appellant relied upon the evidence at trial shows that his complaint is not a facial attack
because that type of attack can and must be made without reference to evidence. It is an attack upon the face of the
statute in isolation.”). W e express no opinion as to which authority this court would follow with regard to this issue.
W e note that, similar to a motion to suppress, Urdiales could have developed the factual basis of his conduct at the
pretrial hearing on his motion to set aside the information.

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State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). We first determine whether the

information gave adequate notice of the alleged criminal conduct. If notice was sufficient, that ends

the inquiry; if not, the court must assess the impact of the deficient notice on the appellant’s ability

to prepare a defense, in light of the record, to determine whether reversal is required. Adams v. State,

707 S.W.2d 900, 903 (Tex. Crim. App. 1986); see also Roberts, 278 S.W.3d at 792.

        Generally, an indictment or information is sufficient if it tracks the language of the statute.

Moff, 154 S.W.3d at 602; Roberts, 278 S.W.3d at 792. An exception exists if the statutory language

is not itself completely descriptive of the offense; then, more particularity is required to be pled.

Evans v. State, 623 S.W.2d 924, 925 (Tex. Crim. App. [Panel Op.] 1981). The defendant has the

right to notice of the “nature and cause” of the allegations against him, and the notice must be

specific enough to enable the defendant to investigate the accusations against him and establish a

defense. Moff, 154 S.W.3d at 602; Garcia v. State, 981 S.W.2d 683, 685 (Tex. Crim. App. 1998).

The State is not required, however, to allege evidentiary facts, or to “lay out its case,” in the charging

instrument. Moff, 154 S.W.3d at 603; State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998).

        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 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.



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     Based on the foregoing reasons, we affirm the trial court’s judgment.



                                                   Phylis J. Speedlin, Justice



PUBLISH




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