                                      In The

                                Court of Appeals
                     Ninth District of Texas at Beaumont
                           ____________________
                               NO. 09-17-00125-CR
                           ____________________

                      THE STATE OF TEXAS, Appellant

                                         V.

                        MARC DAVENPORT, Appellee


                     On Appeal from the 221st District Court
                          Montgomery County, Texas
                        Trial Cause No. 16-06-07318-CR


                          MEMORANDUM OPINION

      The State appeals the trial court’s order dismissing the indictment against

Appellee Marc Davenport (Davenport or Appellee) for conspiracy to circumvent the

Texas Open Meetings Act. We reverse the trial court’s order dismissing the

indictment and remand the cause to the trial court for further proceedings consistent

with this opinion.




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      On June 24, 2016, a Grand Jury indicted Appellee, Marc Davenport, for

Conspiracy to Circumvent the Texas Open Meetings Act under section 551.143 of

the Government Code. See Tex. Gov’t Code Ann. § 551.143 (West 2017). Although

Davenport and the State agree that he was not a member of a “governmental body,”

Davenport was charged as a party to the conspiracy with language in the indictment

tracking Penal Code section 7.02(a)(2). See Tex. Penal Code Ann. § 7.02(a)(2) (West

2011). The indictment alleged that:

      . . . Marc Davenport, on or about August 11, 2015 and continuing
      through August 24, 2015 and before the presentment of this indictment,
      . . . did then and there, with the intent to promote or assist the
      commission of the offense described herein, solicit, encourage, direct,
      aid or attempt to aid Jim Clark or Charlie Riley or Craig Doyal who,
      did then and there as a member of a governmental body, to wit: the
      Montgomery County Commissioner’s Court, knowingly conspire to
      circumvent Title 5 Subtitle A Chapter 551 of the Texas Government
      Code . . . by meeting in a number less than a quorum for the purpose of
      secret deliberations in violation of the Texas Open Meetings Act, to
      wit: by engaging in a verbal exchange concerning an issue within the
      jurisdiction of the Montgomery County Commissioners Court, namely,
      the contents of the potential structure of a November 2015 Montgomery
      County Road Bond[.]

Riley and Doyal were indicted in separate indictments.

      On October 31, 2016, Davenport filed a Motion to Dismiss for Lack of

Jurisdiction arguing that Davenport was not a member of a “governmental body”

and that at no time was he acting as a “public servant” or “in an official capacity as

a public servant.” The trial court denied Davenport’s Motion to Dismiss for Lack of
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Jurisdiction.1 Davenport also opposed the State’s proposal to join or consolidate for

trial Davenport’s case with two other cases, State of Texas v. Craig Doyal, No. 16-

06-07315-CR, and State of Texas v. Charlie Riley, No. 16-06-07316-CR.

      On March 20, 2017, Doyal filed a Motion to Dismiss the Indictment in

Doyal’s case. On March 22, 2017, Davenport filed a Motion to Join Defendant Craig

Doyal’s Motion to Dismiss the Indictment. The Doyal motion asserted that section

551.143 of the Government Code must be reviewed under strict scrutiny, is facially

unconstitutional because it violates the First Amendment, and is overbroad, vague

and confusing.2 The trial court held a hearing on the motion to dismiss. On April 4,

2017, in three separate orders, the trial court dismissed the indictments against

Davenport, Doyal, and Riley. The State appealed.

      We overturned       the trial court’s ruling granting Doyal’s motion to

dismiss. See State v. Doyal, No. 09-17-00123-CR, slip. op. (Tex. App.—

Beaumont Feb. 7, 2018, no pet. h.), available at http://www.search.txcourts.gov/


      1
          Davenport filed a petition for a writ of mandamus with this Court
challenging the trial court’s jurisdiction on the basis that he is not a public servant.
See In re Davenport, No. 09-17-00084-CR, 2017 Tex. App. LEXIS 2571 (Tex.
App.—Beaumont Mar. 23, 2017) (orig. proceeding). We denied the petition after
concluding that Davenport failed to show why a challenge on direct appeal would
be an inadequate remedy. Id. at *2.
       2
         An appellate court may take judicial notice of its own records, such as
pleadings, in the same or related proceedings involving the same or nearly same
parties. See Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App. 1987).
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DocketSrch.aspx?coa=coa09. And, we overturned the trial court’s ruling

granting Riley’s motion to dismiss. See State v. Riley, No. 09-17-00124-

CR, slip. op. (Tex. App.—Beaumont Feb. 7, 2018, no pet. h.), (mem. op.

not designated for publication), available at http://www.search.txcourts.gov/

DocketSrch.aspx?coa=coa09. For the reasons discussed in State v. Doyal and State

v. Riley, we also reverse the order dismissing Davenport’s indictment.

      In remanding Davenport’s case, we emphasize that the only matter that is

currently before us pertains to the facial constitutional challenges that were made in

Doyal’s Motion to Dismiss. Davenport did not assert any additional grounds for

dismissal in Davenport’s Motion to Join. No other challenges or issues are currently

before us in this appeal. We expressly have not ruled upon an “as applied challenge”

nor have we been asked to review the application of the statute to Davenport, a

consultant and someone who alleges he is not a member of a governmental body.

      While a defendant has the right to seek a dismissal of an indictment based on

a claim that the statute under which the defendant was indicted is facially invalid,

the bar to succeeding on these types of claims is high. The United States Supreme

Court has explained: “A facial challenge to a legislative Act is, of course, the most

difficult challenge to mount successfully, since the challenger must establish that no

set of circumstances exists under which the Act would be valid.” United States v.

                                          4
Salerno, 481 U.S. 739, 745 (1987); see also McGruder v. State, 483 S.W.3d 880,

883 (Tex. Crim. App. 2016).3

      The overbreadth doctrine is “strong medicine” that is used “sparingly and only

as a last resort.” State v. Johnson, 475 S.W.3d 860, 865 (Tex. Crim. App. 2015)

(citing N.Y. State Club Ass’n v. City of New York, 487 U.S. 1, 14 (1988); Broadrick

v. Oklahoma, 413 U.S. 601, 613 (1973); Ex parte Thompson, 442 S.W.3d 325, 349

(Tex. Crim. App. 2014)). When making a “substantial overbreadth” challenge under

the First Amendment, the challenger must establish that the statute as written

“prohibit[s] a substantial amount of protected expression, and the danger that the

statute will be unconstitutionally applied must be realistic and not based on ‘fanciful

hypotheticals.’” Id. (footnotes omitted) (quoting United States v. Stevens, 559 U.S.

460, 485 (2010) (Alito, J., dissenting)). Therefore, Davenport had the burden to


      3
          Courts are directed to avoid sustaining a defendant’s facial challenge to a
statute when possible because such challenges, when they are sustained, allow the
courts to nullify a legislative act without first requiring that a record be created
regarding the defendant’s conduct. See Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 450-51 (2008) (noting that facial challenges are
disfavored for several reasons, explaining that they often rest on speculation, run
contrary to the principles of judicial restraint, and threaten to short circuit the
democratic process); see also King St. Patriots v. Tex. Democratic Party, 521
S.W.3d 729, 737 (Tex. 2017) (“‘It is not the usual judicial practice . . . nor do we
consider it generally desirable, to proceed to an overbreadth issue unnecessarily—
that is, before it is determined that the statute would be valid as applied.’”) (quoting
Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 485-86 (1989)).

                                           5
demonstrate “‘that a substantial number of instances exist in which the Law cannot

be applied constitutionally.’” See id. (quoting N.Y. State Club Ass’n, 487 U.S. at 14).

“The Supreme Court ‘generally does not apply the “strong medicine” of overbreadth

analysis where the parties fail to describe the instances of arguable overbreadth of

the contested law.’” Id. (quoting Wash. State Grange v. Wash. State Republican

Party, 552 U.S. 442, 449-50 n.6 (2008)). Based upon the appellate record currently

before us, we conclude that Davenport has failed to establish that the statute in

question prohibits a substantial amount of activity that is protected by the First

Amendment, judged in relation to its plainly legitimate sweep.

      We sustain the State’s appellate issues, reverse the trial court’s order

dismissing Davenport’s indictment, and remand the cause to the trial court for

further proceedings consistent with this opinion.

      REVERSED AND REMANDED.

                                                     _________________________
                                                        LEANNE JOHNSON
                                                              Justice


Submitted on January 24, 2018
Opinion Delivered February 7, 2018
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.


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