                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


                                                  §
 ALEXANDER C. ETHERIDGE,                                          No. 08-12-00337-CR
                                                  §
                        Appellant,                                    Appeal from
                                                  §
 v.                                                            County Court at Law No. 1
                                                  §
 THE STATE OF TEXAS,                                            of Collin County, Texas
                                                  §
                        Appellee.                                  (TC # 0018702110)
                                                  §

                                           OPINION

       Alexander Etheridge appeals his conviction of evading arrest or detention. He waived his

right to trial by jury and entered a negotiated plea of guilty while reserving the right to appeal the

trial court’s denial of a motion to quash the charging instrument. In accordance with the plea

agreement, the trial court deferred making an adjudication of guilt and placed Appellant on

community supervision for eight months. For the reasons that follow, we affirm.

                                     FACTUAL SUMMARY

       Appellant was charged with the misdemeanor offense of evading arrest or detention. See

TEX.PENAL CODE ANN. § 38.04(a)(West Supp. 2014). The amended information alleged that (1)

Appellant intentionally fled from Chad Hermes, a peace officer who was attempting lawfully to

arrest or detain Appellant, and (2) Appellant knew that Hermes was a peace officer attempting to

arrest or detain him. Appellant filed a motion to quash the information asserting that Section
38.04(a): (1) is unconstitutionally vague because “a person of ordinary circumstances” cannot

tell what conduct is prohibited; (2) is unconstitutionally vague as applied to Appellant because he

cannot determine what conduct is criminally prohibited; (3) is unconstitutionally overbroad

because it has a chilling effect, not only upon acts which are not protected and which the state

may lawfully criminalize, but also upon protected political, religious, or other peaceful opinion

speech or speech activity; and (4) is unconstitutionally overbroad as to Appellant because it

attempts to punish him for lawful activity. At the hearing on the motion to quash, neither party

presented evidence. The trial court denied the motion and Appellant subsequently entered a

guilty plea while reserving his right to appeal the order denying the motion to quash.

                            CONSTITUTIONALITY OF SECTION 38.04

        In his first issue, Appellant complains that the trial court erred by overruling his pretrial

motion to quash because Section 38.04(a) of the Texas Penal Code is unconstitutional on its face

and as applied to him. He argues that the statute is both vague and overbroad.1

                                              Standard of Review

        We review the constitutionality of a criminal statute de novo. Ex parte Lo, 424 S.W.3d

10, 14 (Tex.Crim.App. 2013).             When the constitutionality of a statute is challenged, we

ordinarily begin with the presumption that the statute is valid and the Legislature has not acted

unreasonably or arbitrarily. Ex parte Lo, 424 S.W.3d at 14-15; State v. Rosseau, 396 S.W.3d

550, 557 (Tex.Crim.App. 2013). The burden rests upon the individual who challenges the statute

to establish its unconstitutionality. Ex parte Lo, 424 S.W.3d at 15. This presumption does not

apply when the government seeks to restrict speech based on its content. Id. Content-based

regulations are presumptively invalid, and the government bears the burden to rebut that


1
  Appellant raises this issue in multiple arguments which he designates with the letters “a,” “b,” “c,” and “d.” For
convenience, we will refer to these arguments as Issue One.

                                                       -2-
presumption. Id. It is the burden of the person desiring to engage in allegedly expressive

conduct to demonstrate the First Amendment applies. Clark v. Community For Creative Non-

Violence, 468 U.S. 288, 294 n.5, 104 S.Ct. 3065, 3069 n.5, 82 L.Ed.2d 221 (1984).

       A statute may be challenged as unconstitutional “on its face” or “as applied.” Scott v.

State, 322 S.W.3d 662, 665 n.1 (Tex.Crim.App. 2010). A claim that a statute is unconstitutional

“on its face” is a claim that the statute, by its terms, always operates unconstitutionally. Scott,

322 S.W.3d at 665 n.1, citing Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex.Crim.App.

2006). A claim that a statute is unconstitutional “as applied” is a claim that the statute operates

unconstitutionally with respect to the claimant because of his particular circumstances. Scott,

322 S.W.3d at 665 n.1, citing Gillenwaters, 205 S.W.3d at 536 n.3. Appellant did not present

any evidence at the hearing on his motion to quash. Consequently, his challenge to the statute as

applied to him fails and we will restrict our review to the facial challenge.

                                      Overbreadth Challenge

       When an appellant challenges a statute as both unconstitutionally overbroad and vague,

we address the overbreadth challenge first. Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982); Maloney v.

State, 294 S.W.3d 613, 626 (Tex.App.--Houston [1st Dist.] 2009, pet. ref’d). A statute may be

challenged as overbroad, in violation of the Free Speech Clause of the First Amendment, if, in

addition to proscribing activity that may be constitutionally forbidden, it sweeps within its

coverage a substantial amount of expressive activity that is protected by the First Amendment.

Scott, 322 S.W.3d at 665 n.2, citing Morehead v. State, 807 S.W.2d 577, 580 (Tex.Crim.App.

1991). In a facial challenge to the overbreadth and vagueness of a law, a court’s first task is to

determine whether the enactment reaches a substantial amount of constitutionally protected



                                                -3-
conduct. Village of Hoffman Estate, 455 U.S. at 494, 102 S.Ct. at 1191. If it does not, then the

overbreadth challenge fails.     Id. The Court of Criminal Appeals has admonished that the

overbreadth doctrine is “strong medicine” that should be employed “sparingly” and “only as a

last resort.” See Ex parte Ellis, 309 S.W.3d 71, 91 (Tex.Crim.App. 2010).

       The First Amendment generally protects the free communication and receipt of ideas,

opinions, and information, but the guarantee of free speech is not absolute. See Scott, 322

S.W.3d at 668. Section 38.04(a) of the Penal Code provides that a person commits an offense if

he intentionally flees from a person he knows is a peace officer or federal special investigator

attempting lawfully to arrest or detain him. TEX.PENAL CODE ANN. § 38.04(a)(West Supp.

2014). Thus, the elements of the offense of evading arrest or detention are:

       (1) a person

       (2) intentionally flees

       (3) from a person he knows is a peace officer or federal special investigator

       (4) while the peace officer or federal special investigator is attempting to arrest or detain
       the person, and

       (5) the attempted arrest or detention is lawful.

A person cannot be convicted of evading arrest or detention if the State fails to prove that the

attempted arrest or detention was lawful. Compare TEX.PENAL CODE ANN. § 38.04(a) with

TEX.PENAL CODE ANN. § 38.03(a), (b)(West 2011)(providing it is not a defense to a prosecution

for resisting arrest, search, or transportation that the arrest or search was unlawful).

       Appellant contends that Section 38.04(a) would have a chilling effect on constitutionally

protected conduct because it could be applied to a situation where a police officer attempts to

detain a protestor, a speaker in a proper public forum, or someone praying in public. He argues

that the citizen is put to the choice of either stopping his constitutionally protected activity or

                                                 -4-
being unlawfully arrested or detained.      Section 38.04(a) does not operate in the manner

suggested. The only conduct made criminal by Section 38.04(a) is intentionally fleeing from an

officer who is attempting to lawfully arrest or detain the person. If an officer attempts to

unlawfully arrest or detain a person who is lawfully exercising his first amendment rights by

protesting or speaking in public, and the person intentionally flees from the officer, the person

could not be convicted of evading arrest or detention under Section 38.04(a) because the State

could not prove that the arrest or detention was lawful. Appellant’s overbreadth challenge to

Section 38.04(a) is without merit.

                                      Vagueness Challenge

       We turn now to Appellant’s assertion that the statute is unduly vague. Because Section

38.04(a) does not implicate constitutionally protected conduct, we will sustain Appellant’s

vagueness challenge only if the statute is impermissibly vague in all of its applications. Village

of Hoffman Estates, 455 U.S. at 494-95, 102 S.Ct. at 1191. A person who engaged in some

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

conduct of others. Id., 455 U.S. at 495, 102 S.Ct. at 1191. Thus, a court should first examine the

complainant’s conduct before analyzing other hypothetical applications of the law. Id.

       It was Appellant’s burden to show that Section 38.04(a) was unduly vague as applied to

his own conduct, but he presented no evidence at the hearing and the record is silent with regard

to the specific facts involved in his prosecution for evading arrest or detention. Based on

Appellant’s plea of guilty, the established facts are that Appellant intentionally fled from Chad

Hermes, a peace officer who was attempting to lawfully arrest or detain him, and Appellant

knew that Hermes was a peace officer attempting to lawfully arrest or detain him.

       A statute may be challenged as unduly vague, in violation of the Due Process Clause of



                                              -5-
the Fourteenth Amendment, if it does not: (1) give a person of ordinary intelligence a reasonable

opportunity to know what is prohibited and (2) establish definite guidelines for law enforcement.

Scott, 322 S.W.3d at 665 n.2, citing Bynum v. State, 767 S.W.2d 769, 773 (Tex.Crim.App. 1989).

Appellant argues that Section 38.04(a) requires proof that that the defendant intentionally fled

from a peace officer while knowing that the officer is attempting to lawfully detain or arrest the

defendant. He reasons that the statute is unconstitutionally vague because a citizen is unaware of

the facts known to the police and must guess or speculate whether the arrest or detention is

actually lawful or not. Appellant’s argument is based on a misunderstanding of the statute.

Section 38.04(a) requires proof that the defendant knows the peace officer is attempting to arrest

or detain him, and it requires proof that the attempted arrest or detention is lawful, but it does not

require proof that the defendant knew his arrest or detention was lawful. See Jackson v. State,

718 S.W.2d 724, 726 (Tex.Crim.App. 1986); Hazkell v. State, 616 S.W.2d 204, 205

(Tex.Crim.App. 1981).

       Appellant next argues that the statute is unconstitutionally vague because the terms

“detain,” “lawful,” and “flee” are undefined. A statute is not unconstitutionally vague simply

because its terms are not specifically defined. Tanner v. State, 838 S.W.2d 302, 304 (Tex.App.--

El Paso 1992, no pet.), citing Engelking v. State, 750 S.W.2d 213, 215 (Tex.Crim.App. 1988). A

statute may be given constitutional clarity by applying standard rules of statutory construction.

Id. In construing statutory language, we always begin with the literal text, reading it in context

and construing it according to the rules of grammar and common usage. Baird v. State, 398

S.W.3d 220, 228 (Tex.Crim.App. 2013); 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 assume that every word was meant to serve a discrete



                                                -6-
purpose that should be given effect. Baird, 398 S.W.3d at 228. If a word does not have a

technical meaning or has not been defined in the statute, we may also consult standard

dictionaries to determine the common usage of a word. Id. If a word or phrase has acquired a

technical or particular meaning, whether by legislative definition or otherwise, it must be

construed accordingly. TEX.GOV’T CODE ANN. § 311.011(b).

          Appellant claims that because the words “detain” and “lawful” are undefined, the statute

is vague because it could be construed as permitting a detention which falls short of the Terry

standard for temporary detentions.2 Appellant cites no authority in support of his argument.

Section 38.04(a) requires proof that the officer was attempting to lawfully detain the subject.

While the term “detain” is not defined by the Penal Code, it is a term which has acquired a

technical or particular meaning in the context of a law enforcement officer’s seizure of a person

under the Fourth Amendment. See TEX.GOV’T CODE ANN. § 311.011(b). Thus, the statute must

be construed in light of the technical meaning this term has acquired such that the term “detain”

means a temporary or investigative detention under the Fourth Amendment. Likewise, the term

“lawful” is undefined but when read together with the rest of the statute and the technical

meaning of “detain”, it is apparent that the Legislature intended to prohibit a person’s flight from

a peace officer who was attempting to lawfully conduct an investigative or temporary detention

of the defendant.

          Appellant also maintains that Section 38.04(a) is vague because the term “flee” is

undefined. He asserts that a person could be prosecuted for evading detention for merely

refusing to acquiesce to the officer’s request to stop and talk with the officer. We understand

Appellant to say that a person is subject to prosecution under Section 38.04(a) for merely

walking away from a consensual encounter with a police officer which falls short of a detention
2
    Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968).

                                                        -7-
under the Fourth Amendment. Appellant’s interpretation of Section 38.04(a) is contrary to the

plain language of the statute and well-established Fourth Amendment law. Generally speaking,

there are three distinct types of interactions between police and citizens: (1) consensual

encounters, which require no objective justification; (2) investigatory detentions, which require

reasonable suspicion; and (3) arrests, which require probable cause. State v. Castleberry, 332

S.W.3d 460, 466 (Tex.Crim.App. 2011).                With respect to consensual encounters, a law

enforcement officer is just as free as anyone to stop and question a fellow citizen, and the citizen

is free to terminate the encounter at any time. Id. A person is subject to prosecution under

Section 38.04(a) only when there is proof that he intentionally fled from a person he knows is a

peace officer attempting to lawfully arrest or detain him. We conclude that Section 38.04(a),

when applied to the conduct of Appellant as established by his plea of guilty to the information,

is not unconstitutionally vague.         Consequently, it is unnecessary for us to analyze other

hypothetical applications of the law to determine if the statute is unduly vague.                     Having

determined that Section 38.04(a) is not unconstitutionally overbroad or vague, we overrule Issue

One.

                            FEES OF COURT-APPOINTED COUNSEL

        In his second issue, Appellant contends that the trial court erred by requiring him to pay

the costs of court-appointed counsel because he is indigent.3                The State responds that the

judgment does not require Appellant to pay the fees of court-appointed counsel.

        Article 26.05 of the Code of Criminal Procedure governs compensation of counsel

appointed to represent an indigent criminal defendant. TEX.CODE CRIM.PROC.ANN. art. 26.05

(West Supp. 2014). All payments made under Article 26.05 are paid from the general fund of

3
   Appellant raises two arguments regarding attorney’s fees designated as “d” and “e.” For convenience, we will
refer to these arguments as Issue Two.


                                                     -8-
the county in which the prosecution was instituted and may be included as costs of court.

TEX.CODE CRIM.PROC.ANN. art. 26.05(f). If the trial court determines that a defendant has

financial resources that enable him to offset in part or in whole the costs of the legal services

provided, the court shall order the defendant to pay during the pendency of the charges or, if

convicted, as court costs, the amount that it finds the defendant is able to pay. TEX.CODE

CRIM.PROC.ANN. art. 26.05(g).

       The judgment includes the following recitations:

       It is further ORDERED that the amount paid to the defendant’s appointed counsel
       is taxed against the defendant as costs, in an amount determined by the Court as
       well as a one $25.00 Time Payment Fee, if applicable. To correct a costs bill, the
       County Clerk is granted leave to amend it without further written order that any
       proper but omitted amount is due, even in cases where costs have been previously
       paid.

The judgment reflects that court costs were in the total amount of $282. During the guilty plea,

the trial court expressly waived any requirement that Appellant pay the court-appointed

attorney’s fees.   This determination is also reflected on the court’s docket sheet with the

handwritten notation: “Ct waives ct apted attys fees”. Given that the trial court determined that

Appellant would not be required to pay any portion of his court-appointed attorney’s fees, the

judgment cannot be construed as requiring him to pay. We overrule Issue Two and affirm the

judgment of the trial court.


October 1, 2014
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Rivera, J., not participating)

(Do Not Publish)




                                              -9-
