      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00669-CR



                                   Ex parte Justin River Carter


     FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
       NO. CR2013-159, THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Justin River Carter was arrested and charged by indictment, in two

paragraphs alleging alterative manner and means, with terroristic threat. See Tex. Penal Code

§ 22.07(a)(4), (5). He filed a pretrial application for writ of habeas corpus challenging the

constitutionality of the subsections of the terroristic threat statute under which he is charged. After

conducting an evidentiary hearing, the trial court denied relief. In two points of error on appeal,

appellant asserts that the trial court erred by not finding the statutory subsections under which he is

charged facially unconstitutional and unconstitutional as applied to him. We affirm the trial court’s

order denying relief.


                                           DISCUSSION

                                          Facial Challenge

               In his first point of error, appellant complains that the trial court abused its discretion

in not finding subsections (a)(4) and (a)(5) of section 22.07 of the Texas Penal Code facially

unconstitutional. He argues that these subsections are facially overbroad and vague in violation of
the First, Fifth, and Fourteenth Amendments to the United States Constitution and Article I of the

Texas Constitution. See U.S. Const. amend. I, XIV; Tex. Const. art. I, §§ 8, 10, 12, 19.1

                A claim that a statute is unconstitutional on its face may be raised by pretrial writ of

habeas corpus because if the statute is facially invalid, then the charging instrument is void. Ex parte

Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001); Ex parte Joyner, 367 S.W.3d 737, 739 (Tex.

App.—Houston [14th Dist.] 2012, no pet.); see Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App.

2010). We generally review a trial court’s decision to grant or deny an application for writ of habeas

corpus under an abuse of discretion standard. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim.

App. 2006); Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.—Austin 2012, pet. ref’d). A trial court

abuses its discretion when it acts without reference to any guiding rules or principles or when it acts

arbitrarily or unreasonably. Ex parte Ali, 368 S.W.3d at 830. However, when the trial court’s ruling

and determination of the ultimate issue turns on the constitutionality of a statute, we review the trial

court’s ruling de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled

in part on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007); Ex parte

Perusquia, 336 S.W.3d 270, 275 (Tex. App.—San Antonio 2010, pet. ref’d). A facial attack upon

a penal statute is solely and entirely a legal question subject to de novo review. Ex parte Lo,




       1
           In his argument, appellant provides authority only regarding the United States Constitution
and does not provide separate authority or argument for his state constitutional claim. Because
appellant does not argue that the Texas Constitution provides more protection than the United States
Constitution, nor explain how it would, we properly resolve this claim pursuant to the United States
Constitution. See Gilley v. State, 418 S.W.3d 114, 120 n.23 (Tex. Crim. App. 2014), cert. denied,
135 S. Ct. 57 (2014); Flores v. State, 319 S.W.3d 697, 702 n.8 (Tex. Crim. App. 2010); Muniz
v. State, 851 S.W.2d 238, 251 (Tex. Crim. App. 1993); Jessop v. State, 368 S.W.3d 653, 681 (Tex.
App.—Austin 2012, no pet.).

                                                   2
424 S.W.3d 10, 14 (Tex. Crim. App. 2013); Karenev v. State, 281 S.W.3d 428, 435 (Tex. Crim.

App. 2009).

               Whenever we are confronted with an attack upon the constitutionality of a statute, we

generally presume that the statute is valid and that the legislature did not act unreasonably

or arbitrarily.2 Ex parte Lo, 424 S.W.3d at 14–15; State v. Rosseau, 396 S.W.3d 550, 557 (Tex.

Crim. App. 2013); Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Webb v. State,

109 S.W.3d 580, 582 (Tex. App.—Fort Worth 2003, no pet.); Ex parte Dave, 220 S.W.3d 154, 156

(Tex. App.—Fort Worth 2007, pet. ref’d). The burden rests upon the person who challenges the

statute to establish its unconstitutionality. Rousseau, 396 S.W.3d at 557; Rodriguez, 93 S.W.3d at

69; Garcia v. State, 212 S.W.3d 877, 887 (Tex. App.—Austin 2006, no pet.). We must uphold a

statute if we can determine a reasonable construction that will render it constitutional and carry out

legislative intent. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979); Garcia, 212 S.W.3d

at 887.

               To prevail on a facial challenge to the constitutionality of a statute, a party generally

must show the statute always operates unconstitutionally, in all possible circumstances. Rosseau,

396 S.W.3d at 557; State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011); see

Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992) (“A facial challenge to a statute is

the most difficult challenge to mount successfully because the challenger must establish that no set


          2
          We note that the usual presumption of constitutionality is reversed when the government
seeks to restrict and punish speech based on its content. Ex parte Lo, 424 S.W.3d 10, 14–15 (Tex.
Crim. App. 2013). “Content-based regulations (those laws that distinguish favored from disfavored
speech based on the ideas expressed) are presumptively invalid, and the government bears the burden
to rebut that presumption.” Id. (internal citations omitted).

                                                  3
of circumstances exists under which the statute will be valid.”). In a facial challenge to a statute’s

constitutionality, courts consider the statute only as it is written, not how it operates in practice.

Salinas v. State, ___ S.W.3d ___, No. PD-0419-14, 2015 WL 3988955, at *3 (Tex. Crim. App.

July 1, 2015); State ex rel. Lykos, 330 S.W.3d at 908.

               The Penal Code provisions at issue here provide:


       (a)     A person commits an offense if he threatens to commit any offense involving
               violence to any person or property with intent to:
               ...

               (4)     cause impairment or interruption of public communications, public
                       transportation, public water, gas, or power supply or other public
                       services;

               (5)     place the public or a substantial group of the public in fear of serious
                       bodily injury; . . . .


Tex. Penal Code § 22.07(a)(4), (5).

               Appellant contends that the above statutory subsections of the terroristic threat statute

are unconstitutionally overbroad on their face because they criminalize “a vast amount of

constitutionally protected speech” in violation of the First Amendment to the United States

Constitution. He also asserts that they are unconstitutionally vague because they fail to provide

adequate notice of the prohibited conduct.

               A statute is impermissibly overbroad if it sweeps within its coverage “a substantial

amount of” speech or other conduct protected by the First Amendment as compared to any activity

it proscribes. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,

494 (1982); Bynum v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989); Clark v. State,

                                                  4
665 S.W.2d 476, 482 (Tex. Crim. App. 1984); Garcia, 212 S.W.3d at 887. Because of the

wide-reaching effects of striking down a statute on its face, at the request of one whose own conduct

may be punished despite the First Amendment, the United States Supreme Court has recognized that

“the overbreadth doctrine is ‘strong medicine’ and [courts should employ] it with hesitation, and then

‘only as a last resort.’” Goyzueta v. State, 266 S.W.3d 126, 131 (Tex. App.—Fort Worth 2008, no

pet.) (quoting New York v. Ferber, 458 U.S. 747, 769 (1982)); see Garcia, 212 S.W.3d at 887–88.

Thus, we will not strike down a statute for overbreadth unless there is “a realistic danger that the

statute itself will significantly compromise recognized First Amendment protections of parties not

before the Court.” Garcia, 212 S.W.3d at 888 (quoting Members of City Council v. Taxpayers for

Vincent, 466 U.S. 789, 800–01 (1984)).

               The First Amendment guarantees freedom of speech, affording protection to symbolic

or expressive conduct as well as to actual speech. See U.S. Const. amend. I; Virginia v. Black,

538 U.S. 343, 358 (2003). Free speech protections of the First Amendment are implicated when

the government seeks to regulate protected speech or expressive conduct. See Scott v. State,

322 S.W.3d 662, 668–69 (Tex. Crim. App. 2010), overruled in part on other grounds by Wilson

v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014); Ex parte Thompson, 414 S.W.3d 872, 876 (Tex.

App.—San Antonio 2013), aff’d, 442 S.W.3d 325 (Tex. Crim. App. 2014). The protections afforded

by the First Amendment, however, are not absolute, and courts have long recognized that the

government may regulate certain categories of expression consistent with the Constitution. Black,

538 U.S. at 358; Walker v. State, 327 S.W.3d 790, 796 (Tex. App.—Fort Worth 2010, no pet.);

Coggin v. State, 123 S.W.3d 82, 87 (Tex. App.—Austin 2003, pet. ref’d). The First Amendment



                                                  5
permits “restrictions upon the content of speech in a few limited areas, which are ‘of such slight

social value as a step to truth that any benefit that may be derived from them is clearly outweighed

by the social interest in order and morality.’” Black, 538 U.S. at 358–59; see Walker, 327 S.W.3d

at 796; see, e.g., Black, 538 U.S. at 358–59 (listing types of words such as “fighting words” as

generally outside First Amendment” and noting that First Amendment “permits a State to ban a ‘true

threat’”); R. A. V. v. City of St. Paul, 505 U.S. 377, 388 (1992) (concluding that threats of violence

are outside the First Amendment).

               In analyzing a facial challenge to the overbreadth and vagueness of a statute, courts

must first determine whether the statute reaches “a substantial amount of constitutionally protected

conduct.” Village of Hoffman Estates, 455 U.S. at 494; Garcia, 212 S.W.3d at 887. In analyzing

the text of the terroristic threat statute and making this determination here, we note the narrow

applicability of the statute. By its terms, the statute punishes only those individuals who threaten to

commit a crime involving violence to persons or property. See Tex. Penal Code § 22.07(a). This

type of threat is not entitled to First Amendment protections. See Black, 538 U.S. at 359 (explaining

that “‘[t]rue threats’ encompass those statements where the speaker means to communicate a

serious expression of an intent to commit an act of unlawful violence”); Watts v. United States,

394 U.S. 705, 707 (1969) (recognizing distinction between threats and constitutionally protected

speech: “What is a threat must be distinguished from what is constitutionally protected speech.”);

Walker, 327 S.W.3d at 796 (“The First Amendment permits a State to ban a ‘true threat.’”); Webb

v. State, 991 S.W.2d 408, 415 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (concluding that

retaliation statute does not infringe into area of constitutionally protected freedoms because



                                                  6
it regulates only threatening speech: “A threat is not protected speech.”); Jacobs v. State,

903 S.W.2d 848, 851 (Tex. App.—Texarkana 1995, pet. ref’d) (“Threats, however, are not

constitutionally protected.”); see, e.g., Webb, 109 S.W.3d at 583 (“[B]ecause pornography produced

with real children is not a category of speech protected by the First Amendment, the statute’s

prohibition of these materials does not violate the First Amendment.”); Ex parte Dave, 220 S.W.3d

at 156 (noting that “obscene material itself . . . is not protected by the First Amendment”); Puckett

v. State, 801 S.W.2d 188, 194 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d) (holding

appellant’s threats to police officer were not entitled to constitutional protection).

               Because the statute is limited to threats of violence and falls outside the protections

of the First Amendment, we conclude that it does not reach “a substantial amount of constitutionally

protected conduct.” Accordingly, we overrule appellant’s overbreadth challenge. See Village of

Hoffman Estates, 455 U.S. at 494 (if statute does not reach “a substantial amount of constitutionally

protected conduct,” overbreadth challenge fails); Bynum, 767 S.W.2d at 772–73 (overbreadth

doctrine limited in context to First Amendment issues); Goyzueta, 266 S.W.3d at 131 (“An

overbreadth attack on a statute is recognized only in the context of a First Amendment

challenge.”) (citing United States v. Salerno, 481 U.S. 739 (1987)); see, e.g., Duncantell v. State,

230 S.W.3d 835, 843 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (concluding that because

interference with public duties statute does not restrict substantial amount of constitutionally

protected conduct, it is not unconstitutionally overbroad).

               Also in his first point of error, appellant argues that the statutory subsections of the

terroristic threat statute under which he is charged are unconstitutionally vague—that is, they fail to



                                                  7
give adequate notice of the prohibited conduct—because they fail to define certain terms. In

particular, he contends that subsection (a)(4) of the statute is unconstitutionally vague because it does

not define the phrase “other public services” and that subsection (a)(5) is unconstitutionally vague

because it does not define what constitutes “the public” or “a substantial group of the public.”

                A vagueness challenge is applicable to all criminal laws, not just those that regulate

speech. Bynum, 767 S.W.2d at 773; Duncantell, 230 S.W.3d at 844; Webb, 991 S.W.2d at 416. If,

as we have concluded in this case, a statute does not substantially implicate constitutionally protected

speech or conduct, a facial vagueness challenge is sustained only if the challenging party shows the

statute to be unconstitutionally vague in all of its applications.3 Ex parte Ellis, 309 S.W.3d at 80;

Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007); Duncantell, 230 S.W.3d at 845;

see Watson v. State, 369 S.W.3d 865, 870 (Tex. Crim. App. 2012) (“In a facial challenge to the

vagueness of a law, the appellant must show that the law is impermissibly vague in all of

its applications.”).

                A penal statute is void for vagueness if its prohibitions are not clearly defined.

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); State v. Holcombe, 187 S.W.3d 496, 499

(Tex. Crim. App. 2006); Garcia, 212 S.W.3d at 889. A law must give a person of ordinary

intelligence a reasonable opportunity to know what is prohibited and must provide explicit standards

to those who enforce and apply it. Grayned, 408 U.S. at 108; see Watson, 369 S.W.3d at 870 (“Laws




        3
         In contrast, the vagueness doctrine “demands a greater degree of specificity than in other
contexts” when a statute is capable of reaching First Amendment freedoms. See Long v. State,
931 S.W.2d 285, 287–88 (Tex. Crim. App. 1996); Ex parte Perry, No. 03-15-00063-CR,
___ S.W.3d ___, 2015 Tex. App. LEXIS 7662, at *51 (Tex. App.—Austin July 24, 2015, no pet. h.).

                                                   8
cannot be vague or arbitrary; they must inform a person of ordinary intelligence of what is prohibited

by the law so that he may act accordingly and must provide explicit standards to those who enforce

them.”); Lawrence, 240 S.W.3d at 915 (“A statute is void for vagueness if it fails to define the

criminal offense ‘with sufficient definiteness that ordinary people can understand what conduct is

prohibited and in a manner that does not permit arbitrary and discriminatory enforcement.’”)

(quoting Holcombe, 187 S.W.3d at 499). A vague law “impermissibly delegates basic policy matters

to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant

dangers of arbitrary and discriminatory application.” Grayned, 408 U.S. at 108–09.

                When considering claims of vagueness, courts have frequently referenced conducting

a two-part inquiry in the examination of a criminal statute for vagueness. See, e.g., Duncantell,

230 S.W.3d at 844; Coggin, 123 S.W.3d at 87; see also Grayned, 408 U.S. at 108. This examination

is not necessarily a two-part test, but rather one inquiry encompassing two considerations: (1) clarity

for the sake of providing notice to individuals of what constitutes prohibited criminal conduct, and

(2) clarity for the sake of establishing standards to avoid arbitrary or improperly selective application

of the statute by law enforcement. These two considerations are, in reality, two sides of the

same coin.

                The first side of the coin (or consideration of the inquiry) is whether an ordinary,

law-abiding person receives sufficient information from the statute that his conduct risks violating

the criminal law. Duncantell, 230 S.W.3d at 844; Coggin, 123 S.W.3d at 87; see Grayned, 408 U.S.

at 108. All penal laws must give notice to the populace about what activity is made criminal to

provide fair notice to persons before making their activity criminal. Bynum, 767 S.W.2d at 773;



                                                   9
Duncantell, 230 S.W.3d at 844–45. A criminal statute need not be mathematically precise; it need

only give fair warning, in light of common understanding and practices. Bynum, 767 S.W.2d at 773

(citing Grayned, 408 U.S. at 110).

               The second side of the coin (or consideration of the inquiry) is whether the statute is

sufficiently definite to provide standards to law enforcement personnel for consistent unbiased

application when enforcing the statute. See id. A statute must be sufficiently definite to avoid the

possibility of arbitrary and erratic arrests and convictions. See Papachristou v. City of Jacksonville,

405 U.S. 156, 162 (1972); Holcombe, 187 S.W.3d at 499.

               Appellant argues that the failure to define the challenged terms renders the

subsections of the terroristic threat statute under which he is charged vague because they do not

provide adequate notice of the prohibited conduct and they give police officers and prosecutors “too

much room for interpretation” when applying the statute.               However, a statute is not

unconstitutionally vague merely because it fails to define words or phrases. Morgan v. State,

557 S.W.2d 512, 514 (Tex. Crim. App. 1997); Engelking v. State, 750 S.W.2d 213, 215 (Tex. Crim.

App. 1988); Coggin, 123 S.W.3d at 88. Statutory words and phrases are to be “read in context and

construed according to the rules of grammar and common usage.” Tex. Gov’t Code § 311.011(a);

see Tex. Penal Code § 1.05(b) (making section 311.011 applicable to Texas Penal Code). Terms not

defined in a statute are to be given their plain and ordinary meaning; words defined in dictionaries

and with meanings so well known as to be understood by a person of ordinary intelligence are

not to be considered vague and indefinite. Watson, 369 S.W.3d at 870 (citing Floyd v. State,

575 S.W.2d 21, 23 (Tex. Crim. App. 1978)); Ex parte Morales, 212 S.W.3d 483, 499 (Tex.



                                                  10
App.—Austin 2006, pet. ref’d). In the absence of special definitions, statutory language under attack

as vague can be measured by common understanding and practices or construed in the sense

generally understood. Ely, 582 S.W.2d at 419; see Mays v. State, 318 S.W.3d 368, 389 n.77 (Tex.

Crim. App. 2010); Celis v. State, 354 S.W.3d 7, 36 (Tex. App.—Corpus Christi 2011), aff’d,

416 S.W.3d 419 (Tex. Crim. App. 2013); State v. Wofford, 34 S.W.3d 671, 680 (Tex. App.—Austin

2000, no pet.).

                  Here, the term “other public services” in subsection (a)(4) is a phrase easily

understood by persons of common intelligence, particularly when taken in context with the specific

types of public services listed in the subsection. Similarly, the terms “the public” and “a substantial

group of the public” are easily understood by persons of common intelligence. While appellant

argues that one is unable to determine what exact number of people must be placed in fear of serious

bodily injury under subsection (a)(5), no specific quantity is required to communicate the prohibited

conduct. See Grayned, 408 U.S. at 110–12 (statutory provision need not be mathematically precise;

it need only give fair warning, in light of common understanding and practices). When measured

by common understanding and practices and construing the challenged phases as generally

understood, the subsections at issue give a person of ordinary intelligence fair notice of the

prohibited conduct: a person cannot make threats to commit criminal acts of violence against

persons or property with the intent to shut down or disrupt public services or with the intent to

frighten others with significant physical harm. See United States v. Petrillo, 332 U.S. 1, 8 (1947)

(“The language here challenged conveys sufficiently definite warning as to the proscribed conduct

when measured by common understanding and practices. The Constitution requires no more.”).



                                                  11
                Further, because these subsections of the terroristic threat statute adequately detail

the prohibited conduct, the enforcement of the statute is not relegated to the subjective interpretation

of police officers or prosecuting attorneys. See Bynum, 767 S.W.2d at 775; Duncantell, 230 S.W.3d

at 846. The language of the statute provides adequate guidance to law enforcement authorities to

such a degree that the risk of improperly motivated selective enforcement is obviated. See Bynum,

767 S.W.2d at 775; Duncantell, 230 S.W.3d at 846.

                Because subsections (a)(4) and (a)(5) of the terroristic threat statute give a person of

ordinary intelligence a reasonable opportunity to know what is prohibited and provide explicit

standards to those who enforce and apply the statute, we hold that these subsections are not

impermissibly vague. We overrule appellant’s vagueness challenge.

                In conclusion, because the subsections of the terroristic threat statute under which

appellant is charged—sections 22.07(a)(4) and (a)(5)—are neither overbroad nor impermissibly

vague, appellant has failed to meet his burden in demonstrating that the challenged statutory

subsections are facially unconstitutional.4 Accordingly, the trial court did not abuse its discretion




        4
            Appellant contends that the burden is on the State here to prove the validity of the
challenged statutory subsections because the terroristic threat statute regulates speech based on
content. See Ex parte Lo, 424 S.W.3d at 15 (“Content-based regulations (those laws that distinguish
favored from disfavored speech based on the ideas expressed) are presumptively invalid, and the
government bears the burden to rebut that presumption.”) (internal citations omitted). However, the
presumption-of-invalidity standard of review applies to “First Amendment, content-based statutes.”
See id. at 16. Because we conclude the challenged subsections of the terroristic threat statute do not
regulate First Amendment protected speech or conduct, we apply the usual standard of review,
including the presumption of the statute’s validity and the challenger’s burden to demonstrate
the contrary.

                                                  12
in denying appellant’s pretrial application for writ of habeas corpus on that ground. We overrule

appellant’s first point of error.


                                       As Applied Challenge

                In his second point of error, appellant asserts that the trial court erred by not finding

Penal Code sections 22.07(a)(4) and (a)(5), the subsections of the terroristic threat statute under

which he is charged, unconstitutional as applied to him. The indictment in this case alleges, in

relevant part, that appellant:


                                           PARAGRAPH I

        did then and there, with the intent to cause impairment or interruption of public
        communications, public transportation, public water, gas or public supply, or other
        public service, threaten to commit any offense involving violence to any person or
        property, to wit: by threatening to “shoot up a kindergarten, watch the blood rain
        down and eat the beating heart out of one of them.”

                                           PARAGRAPH II

        did then and there, with the intent to place the public or a substantial group of the
        public in fear of serious bodily injury, threaten to commit any offense involving
        violence to any person or property, to-wit: by threatening to “shoot up a kindergarten,
        watch the blood rain down and eat the beating heart out of one of them.”


According to the record, these allegations are based on statements appellant allegedly made on the

online social networking service, Facebook.5 Appellant claims that, when considered in context, his


        5
           The record contains a screenshot purportedly from appellant’s Facebook page, which
reflects a series of three statements attributed to appellant:

        I’m f****d in the head alright. I think I’ma SHOOT UP A KINDERGARTEN


                                                   13
comments on his Facebook post were “sarcastic, hyperbolic[,] and conditional” and do not constitute

a “true threat.”

                   Pretrial habeas, followed by an interlocutory appeal, is an “extraordinary remedy,”

and appellate courts should be careful to ensure that it 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 at 79 (citing Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010)). Under

clear Texas Court of Criminal Appeals precedent, a pretrial writ of habeas corpus may not be used

to advance an “as applied” challenge to the constitutionality of the statute.           Id.; Ex parte

Weise, 55 S.W.3d at 620–21; cf. Ex parte Perry, No. 03-15-00063-CR, ___ S.W.3d ___,

2015 Tex. App. LEXIS 7662, at *22–25 (Tex. App.—Austin July 24, 2015, no pet. h.) (discussing

Ex parte Boetscher, 812 S.W.2d 600 (Tex. Crim. App. 1991), one case in which the Texas Court of

Criminal Appeals seemingly entertained a pretrial habeas of an “‘as-applied-to-the-indictment’”

challenge, not relevant to the challenge before us). A claim that a statute is unconstitutional “as

applied” is a claim that the statute, although generally constitutional, operates unconstitutionally as

to the claimant because of his particular facts and circumstances. State ex rel. Lykos, 330 S.W.3d

at 910; Gillenwaters v. State, 205 S.W.3d 534, 537 n.3 (Tex. Crim. App. 2006). Consequently, an

“as applied” constitutional challenge may not be resolved pretrial because it depends on development

of the specific facts of the case showing how the statute is being applied to the defendant. State ex



        AND WATCH THE BLOOD OF THE INNOCENT RAIN DOWN

        ...

        AND EAT THE BEATING HEART OF ONE OF THEM

                                                   14
rel. Lykos, 330 S.W.3d at 910; State v. Rosseau, 398 S.W.3d 769, 778 (Tex. App.—San Antonio

2011), aff’d, 396 S.W.3d 550 (Tex. Crim. App. 2013).

                Here, appellant’s claim that his comments, when taken in context, do not suffice to

constitute a “true threat,” clearly raises an “as applied” challenge to the constitutionality of Penal

Code sections 22.07(a)(4) and (a)(5), the resolution of which is dependent on the facts of the

case—which have yet to be developed through trial. See State ex rel. Lykos, 330 S.W.3d 910 (“An

‘as applied’ challenge is brought during or after a trial on the merits, for it is only then that the trial

judge and reviewing courts have the particular facts and circumstances of the case needed to

determine whether the statute or law has been applied in an unconstitutional manner.”); Flores

v. State, 245 S.W.3d 432, 442 (Tex. Crim. App. 2008) (Cochran, J., concurring) (“[A]n attack upon

the constitutionality of a statute as it is applied in the particular case depends upon the specific facts

of that case adduced at trial. Thus, a challenge to the constitutionality of a penal statute ‘as applied’

to the defendant can be made only after all of the evidence is heard.”). Accordingly, we conclude

that appellant’s “as applied” challenge is not cognizable on a pretrial writ. See Ex parte Ellis,

309 S.W.3d at 81–82 (appellate court should not have addressed whether money-laundering statute

applies to checks because claim raised as-applied challenge to statute and was thus not cognizable

in pretrial habeas proceedings); Ex parte Weise, 55 S.W.3d at 621 (claim that illegal-dumping statute

was unconstitutional as applied to the defendant was not cognizable on pretrial writ of habeas

corpus). We overrule appellant’s second point of error.




                                                    15
                                         CONCLUSION

               Having overruled appellant’s two points of error, we affirm the trial court’s order

denying appellant’s pretrial application for writ of habeas corpus.



                                              __________________________________________
                                              Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed

Filed: August 31, 2015

Do Not Publish




                                                16
