                                                          PD-0893-14 & PD-0894-14
                                                      COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                   Transmitted 3/23/2015 12:56:44 PM
                                                       Accepted 3/25/2015 9:49:51 AM
                                                                        ABEL ACOSTA
        IN THE COURT OF CRIMINAL APPEALS        OF TEXAS                        CLERK




JOEY FAUST, Appellant            §
                                                              March 25, 2015
                                 §
v.                               § NO. PD-0893-14
                                 §
THE STATE OF TEXAS, Appellee     §

RAMON MARROQUIN, Appellant       §
                                 §
v.                               § NO. PD-0894-14
                                 §
THE STATE OF TEXAS, Appellee     §


        ON DISCRETIONARY REVIEW OF CAUSE NUMBERS
              02-13-00222-CR and 02-13-00223-CR IN THE
    COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
__________________________________________________________________

             APPELLANTS’ POST-SUBMISSION BRIEF


                                   J. SHELBY SHARPE
                                   State Bar No. 18123000
                                   utlawman@aol.com
                                   6100 Western Place, Suite 1000
                                   Fort Worth, Texas 76107
                                   (817) 338-4900/Fax (817)332-6818

                                   ATTORNEY FOR APPELLANTS
                                       Table of Contents
Table of Contents ......................................................................................................i

Table of Authorities ................................................................................................ ii

Introduction ..............................................................................................................1
Factual Context for Questions ................................................................................ 1
         Is There a Constitutional Right to Reach the Ears of a Targeted
           Audience?......................................................................................................2
         Was the Skirmish Line Unlawful?................................................................... 4
         Is a Person ever Permitted to Disobey a Police Order and
          Still Bring a Constitutional Challenge? ......................................................... 6
         When Can a Speaker Be Denied Hearing Access to a Particular
           Audience?......................................................................................................6
         Was the Protesting Done at the Beginning as the Parade
           Marched by Sufficient? ................................................................................. 7


Conclusion.................................................................................................................8




                                                             i
                                             Table of Authorities

Cases                                                                                                                 Page

Cohen v. California, 403 U.S. 15, 21 (1971). ............................................................3

Heffron v. International Society for Krishna Consciousness, 452 U.S. 640,655
 (1981)......................................................................................................................2

Kovacs v. Cooper, 336 U.S. 77, 81 (1949) ................................................................2

McCullen v. Coakley, 134 S.Ct. 2518, 2541 ............................................. 3, 4, 5, 6, 7

Rosenberger v. Rector and Visitors of The University of Virginia, 515 U.S. 819,
 828, 829 (1995).......................................................................................................5

Shuttlesworth v. City of Birmingham, 394 U.S. 147, 167 (1969) ..............................6

U.S. v. Baugh, (9th Cir. 1999) 187 F.3d 1037, 1044 ..................................................4

U.S. v. Baugh, 187 F.3d at 1039 ................................................................................8

United States v. Grace, 461 U.S. 171 (1983) ............................................................7

Wood and Savage v. Moss, 134 S.Ct. 2056 (2014)....................................................6




                                                              ii
                                   Introduction

      During oral argument, several questions were asked about other court

opinions related to certain issues raised by this appeal. Each of the questions asked

with the relevant court opinions are set out hereinafter to help the Court. To better

understand the questions, the factual context will be stated first followed by the

questions and court opinion answers.

                          Factual Context for Questions

      The established facts prompting the Court’s questions are:

      (1)    Skirmish line established to prevent only Kingdom Baptist Church

      from going to the festival area after the parade because of what the police

      thought these people might communicate. R.R. 22, 23, 47 , 51, 52.

      (2)    The police were concerned how others might respond to these

      communications. R.R. 38, 48.

      (3)    The police were not concerned that the Kingdom Church people

      would engage “in altercations,” but other “people attending the parade

      might not lash out at them.” R.R. 38.

      (4)    The skirmish line was at “Third and Main Streets. R.R. 8, 13.

      (5)    The audience the Kingdom Church people wanted to communicate

      was in the “eight or nine hundred block of Main.” R.R. 45.




                                          1
       (6)    Arresting officers testified that it was not possible to communicate

       with those in the eight and nine hundred blocks of Main from Third and

       Main. R.R. 29, 45.

       (7)    Faust and Marroquin were not told the line was temporary. R.R. 26,

       27.

                          Is There a Constitutional Right
                     to Reach the Ears of a Targeted Audience?

       “Freedom of speech . . . to communicate information and opinion to others,”

according to the United States Supreme Court, “are all comprehended . . . in the

claimed right of free speech.” 1 The Kovacs opinion goes on to explain that the

“right to speak one’s mind would often be an empty privilege in a place and at a

time beyond the protecting hand of the guardians of public order.” 2

       In a suit factually unlike the cause at bar because it involved restrictions on

selling and soliciting on a fairground, our highest court points out that the “First

Amendment protects the right of every citizen to ‘reach the minds of willing

listeners and to do so there must be opportunity to win their attention.’” 3 In order

to try to reach the minds of listeners for them to become “willing listeners,” it is

obvious that “there must be opportunity to win their attention,” which can only

mean their ears.

1
  Kovacs v. Cooper, 336 U.S. 77, 81 (1949).
2
  336 U.S. at 86.
3
  Heffron v. International Society for Krishna Consciousness, 452 U.S. 640,655 (1981).


                                               2
       “The ability of government, consonant with the Constitution, to shut off

discourse solely to protect others from hearing it is . . . dependent upon a showing

that substantial privacy interest are being invaded [a   person’s    home]    in   an

essentially intolerable manner,” the Supreme Court observes in Cohen v.

California. 4 The court has “consistently stressed that ‘we are often ‘captives’

outside the sanctuary of the home and subject to objectionable speech.’” 5 The

opinion goes on to observe that “[a]ny broader view of this authority would

effectively empower a majority to silence dissidents simply as a matter of personal

predilections.6

       The Court, during oral argument, made note of the Supreme Court’s abortion

opinions where buffer zones were used to separate protestors from ladies entering

abortion clinics. One of these opinions is McCullen v. Coakley. In that opinion,

the court found unconstitutional a Massachusetts criminal statute that created

buffer zones between these groups making meaningful communication

impossible.7      The court reasoned that “while the First Amendment does not

guarantee a speaker the right to any particular form of expression, some forms - -

such as normal conversation and leafleting on a public sidewalk - - have

historically been more closely associated with the transmission of ideas to others . .

4
  403 U.S. 15, 21 (1971).
5
  Id.
6
  Id.
7
  134 S.Ct. 2518, 2541.


                                          3
.. When the government makes it more difficult to engage in these modes of

communication, it imposes an especially significant First Amendment burden.” 8

       Yet, in our case here, there was no opportunity to even try to communicate,

much less have a conversation with the target audience.

       The Ninth Federal Circuit reversed convictions and sentences of individuals

who violated the instruction of National Park Officers not to come within 150

yards of the visitors’ center. 9 The court held that it was unconstitutional for Park

Services to limit protestors to an area 150 to 175 yards away from a visitors’ center

because such “distancing of the demonstrators from the intended audience does not

provide a reasonable alternative means for communication of [the protestors’]

views.”10

       Freedom of speech would become meaningless if the audience the speaker

wanted to reach was protected by law from being reached.

                           Was the Skirmish Line Unlawful?

       How can a skirmish line ever be unlawful? Again, our highest court answers

this question in several opinions by beginning with where the skirmish line was

placed and its purpose.




8
  134 S.Ct. at 2536.
9
  U.S. v. Baugh, (9th Cir. 1999) 187 F.3d 1037, 1044.
10
   Id.


                                                4
       Sidewalks and public ways “occupy a ‘special position in terms of First

Amendment protection’ because of their historic role as sites for discussion and

debate.” 11   Traveling these public ways and sidewalks one “often encounters

speech he might otherwise tune out,” but the First Amendment’s purpose is “ ‘to

preserve an uninhibited marketplace of ideas in which truth will ultimately

prevail:’ ” 12 “As a general rule,” McCullen declares that in such a forum (sidewalk

or public way) the government may not ‘selectively shield the public from some

kinds of speech on the ground that they are more offensive than others.’”13

Government’s ability to restrict speech on public ways and sidewalks is very

limited because the “guiding First Amendment principle that the ‘government has

no power to restrict expression because of its message, its ideas, its subject matter,

or its content’ applies with full force in a traditional public forum.” 14

       The skirmish line was also unlawful because it was established to prevent

“viewpoint-based speech” that the police felt might cause a breach of the peace.

“Any regulation against viewpoint speech ‘is presumed to be unconstitutional’ and

‘[w]hen the government targets . . . particular views . . . the violation of the First

Amendment is all the more blatant.’” 15


11
   McCullen, 134 S.Ct. at 2529.
12
   Id.
13
   134 S.Ct. at 25, 29.
14
   Id.
15
   Rosenberger v. Rector and Visitors of The University of Virginia, 515 U.S. 819, 828, 829
(1995).


                                               5
            Is a Person Ever Permitted to Disobey a Police Order and
                      Still Bring a Constitutional Challenge?

       The answer is “yes.” 16 In Shuttlesworth, people were arrested for violating a

licensing law. The Supreme Court declared emphatically that a person faced with

“such an unconstitutional licensing law may ignore it and engage with impunity in

the exercise of the right of free expression for which the law purports to require a

license.”17 The court went to opine that the “Constitution can hardly be thought to

deny to one subjected to the restraints of such an ordinance the right to attack its

constitutionality, because he has not yielded to its demands.” 18

                          When Can a Speaker Be Denied
                      Hearing Access to a Particular Audience?

       How is the arrest here for disobeying police orders different from the

conduct of Secret Service agents who denied access to the President to

communicate their message, which conduct the Supreme Court upheld? 19 Even

though the Ninth Circuit held that the Secret Service conduct did violate well-

established First Amendment speech law, 20 the high court disagreed. The actions

of the Secret Service and the First Amendment argument of the protestors were

considered solely in a discussion of immunity that served as the basis for reversing



16
   Shuttlesworth v. City of Birmingham, 394 U.S. 147, 167 (1969).
17
   394 U.S. at 167.
18
   394 U.S. at 168.
19
   Wood and Savage v. Moss, 134 S.Ct. 2056 (2014).
20
   134 S.Ct. at 2068.


                                               6
the Ninth Circuit’s judgment and dismissing the case. 21 The Moss opinion is not

analogous for application here.

                          Was the Protesting Done at the
                  Beginning as the Parade Marched by Sufficient?

       Not according to United States v. Grace. 22 There a federal statute prohibited

certain protest activities “in the United States Supreme Court building and on its

grounds.”23 Grace was threatened with arrest if she did not cease such activities on

the sidewalk in front of the court building. 24 She filed suit seeking a declaratory

judgment that the statute was unconstitutional as applied to her on the sidewalk and

the Supreme Court agreed. 25 The argument that the sidewalks across the street or

around the corner was rejected. 26 “We are convinced, however, that the section,

which totally bans the specified communication activity on public sidewalks

around the court grounds, cannot be justified as a reasonable place restriction

primarily because it has not sufficient nexus with any of the public interests that

may be thought to undergird . . . A total ban on that conduct is no more necessary

for the maintenance of peace and tranquility on the public sidewalks surrounding

the building than on any other sidewalks in the city.” 27


21
   134 S.Ct. 1055.
22
   461 U.S. 171 (1983).
23
   461 U.S. at 172.
24
   461 U.S. at 174.
25
   461 U.S. at 183.
26
   461 U.S. at 180.
27
   461 U.S. at 182, 183.


                                           7
                                        Conclusion

          The arrest of Faust and Marroquin was made to prevent them from traveling

a public sidewalk because of speech the police thought they might publish that

might result in a breach of the peace. Accordingly, the skirmish line and the

police order not to cross it constituted a prior restraint on speech that they thought

might occur making the arrests and convictions unconstitutional.          It was the

“application of the regulation [here Section 38.15(a)(1) of the Texas Penal Code]

to the defendants’ First Amendment rights” that makes the arrests and convictions

unconstitutional.28 Respectfully, the judgment of the Court of Appeals should be

affirmed.

                                          Respectfully submitted,


                                          /s/ J. Shelby Sharpe__________________
                                          J. SHELBY SHARPE
                                          State Bar No. 18123000
                                          utlawman@aol.com
                                          6100 Western Place, Suite 1000
                                          Fort Worth, Texas 76107
                                          Telephone: (817) 338-4900
                                          Facsimile: (817) 332-6818

                                          ATTORNEY FOR APPELLANTS
                                          JOEY DARRELL FAUST AND
                                          RAMON MARROQUIN




28
     U.S. v. Baugh, 187 F.3d at 1039.


                                            8
                     CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of TEX. R. APP. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This reply also complies with the word-

count limitations of TEX. R. APP. P. 9.4 (i) because it contains 2,092 words,

excluding any parts exempted by TEX. R. APP. P. 9.4(i)(1), as computed by the

computer software used to prepare the document.


                                             /s/ J. Shelby Sharpe
                                             J. Shelby Sharpe




                        CERTIFICATE OF SERVICE

      A true and correct copy of this reply brief has been served on Charles M.

Mallin, Assistant Tarrant County District Attorney, 401 W. Belknap St., Fort

Worth, Texas 76196-0201, on this 23rd day of March, 2015, via electronic mail.


                                            /s/ J. Shelby Sharpe
                                            J. Shelby Sharpe




                                        9
