
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-00-00008-CR


The State of Texas, Appellant

v.


Thomas Markovich, Appellee






FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY

NO. 536,254, HONORABLE WILFRED AGUILAR, JUDGE PRESIDING






The State appeals from the county court at law's order granting appellee Thomas
Markovich's motion to quash or set aside the information in this cause.  See Tex. Code Crim.
Proc. Ann. art. 44.01(a)(1) (West Supp. 2000).  The information accuses Markovich of disrupting
a meeting.  See Tex. Penal Code Ann. § 42.05 (West 1994). (1)  At issue is whether section 42.05
is unconstitutionally vague or overbroad.  We will reverse and remand.


Background
The underlying facts were stipulated.  On November 14, 1998, former President
George Bush gave a speech in the House of Representatives chamber of the Texas Capitol. 
During the speech, Markovich stood in the gallery and shouted, "Bullshit."  He then began
shouting other protests, causing President Bush to stop speaking.  Markovich was removed and
arrested by capitol police.
An information was filed alleging that Markovich 

with intent to prevent and disrupt a lawful meeting, to wit: a speech given by
former President George Bush, did then and there obstruct and interfere with said
meeting by physical action and verbal utterance, to wit: the Defendant stood up and
shouted, causing former President George Bush to stop speaking.


At the hearing below, the State was permitted to amend the information to add a concluding clause
stating that "the Defendant's physical acts and verbal utterances substantially impaired the
ordinary conduct of the said lawful meeting."

Overbreadth
Markovich's motion to quash alleged, among other things, that section 42.05 "is
facially overbroad, in violation of the First and Fourteenth Amendments to the United States
Constitution and Article I, Section 8 of the Texas Constitution."  The court granted the motion
to quash on this ground.  The State challenges this ruling in its first point of error.
A statute is impermissibly overbroad if, in addition to proscribing activity which
may be forbidden constitutionally, it sweeps within its coverage a substantial amount of expressive
activity protected by the free speech guarantee of the First Amendment.  See Morehead v. State,
807 S.W.2d 577, 580 (Tex. Crim. App. 1991).  A person whose own expressive activity may
validly be prohibited is permitted to challenge a statute as overbroad because it also threatens
others not before the court.  See id.; see also State v. Eaves, 800 S.W.2d 220, 223-24 (Tex.
Crim. App. 1990) (allegation that penal statute is unconstitutionally vague or overbroad is proper
basis for motion to set aside charging instrument).
The Texas Court of Criminal Appeals specifically addressed the constitutionality
of section 42.05 in Morehead.  The court observed that the purpose of the statute "is to protect
the freedom of persons at meetings to speak and to listen."  Morehead, 807 S.W.2d at 580
(emphasis added).  The court had "no doubt that the State has a legitimate, even compelling,
interest in ensuring that some individuals' unruly assertion of their rights of free expression does
not imperil other citizens' First Amendment freedoms."  Id.  The literal language of the statute,
however, by prohibiting any physical or verbal obstruction or interference with a lawful meeting,
procession, or gathering, "encompass[es] the full range of possible disturbances, from the most
minor to the most significant. . . .  [T]he Constitution does not allow all such disturbances to be
criminalized.  The statute is, therefore, overbroad."  Id. at 581.
Having concluded that section 42.05 was unconstitutionally overbroad on its face,
the court of criminal appeals went on to hold that the statute was "readily subject to a narrowing
construction."  Id.

Given the competing First Amendment freedoms at stake, [section] 42.05 can be
rendered constitutional if it is construed to criminalize only physical acts or verbal
utterances that substantially impair the ordinary conduct of lawful meetings and
thereby curtail the exercise of others' First Amendment rights.  This construction
achieves the apparent legislative purpose while preserving the statutory language
and the delicate balance between competing freedoms.


Id. (citations omitted). 

It is clear from the county court at law's remarks at the time of its ruling that it did
not believe that the constitutional infirmities identified in Morehead were cured by that opinion's
narrowing construction of the statute.  Be that as it may, that court (like this Court) is bound to
follow and apply a pertinent opinion of the court of criminal appeals whatever it may think of the
opinion's wisdom.  The court of criminal appeals squarely held in Morehead that section 42.05,
as construed in that opinion, is not unconstitutionally overbroad.
Markovich argues that section 42.05 remains overbroad, even after Morehead.  He
asserts that despite the narrowing construction given the statute by the court of criminal appeals,
section 42.05 applies to disruptions as to which the State has no legitimate interest and that should
not be subject to a criminal sanction.  He argues that the statute extends its coverage to private
business meetings and family gatherings, and criminalizes disruptions that are expected (e.g.,
"arguing political pundits featured on televised debates"), positive (e.g., "enthusiastic members
of a crowd who continually clap and cheer during a speech"), or necessary under the
circumstances (e.g., an interruption to make an emergency announcement).
Markovich's argument, we believe, fails to acknowledge the effect of the narrowing
construction given the statute in Morehead.  In order to prevent the application of section 42.05
to the common, everyday situations envisioned by Markovich, Morehead requires that the
disruptive act or utterance substantially impair the ordinary conduct of a lawful meeting.  If an
interruption is expected or of a type that is commonly made, it cannot be deemed a substantial
impairment of the ordinary conduct of a meeting.  Interruptions during informal debates or
arguments of the sort cited by Markovich are not extraordinary because they are normal and
expected.  Similarly, applause during a speech is normal and expected; indeed, speakers often
insert "applause lines" specifically intended for that purpose.  Interruptions for emergency
announcements are also normal and expected, and hence do not substantially impair the ordinary
conduct of meetings.
In Morehead, the court of criminal appeals held that section 42.05, as construed
in that opinion, is not unconstitutionally overbroad on its face.  The county court at law erred by
concluding otherwise.  The State's first point of error is sustained.

Vagueness 
In point of error two, the State contends the county court at law erred by dismissing
the information on the ground that section 42.05 is unconstitutionally vague.  Although the court
did not expressly set aside the information on this ground, Markovich urged vagueness in his
motion to quash and it is clear from the court's remarks that it was of the opinion that the statute
does not provide determinate guidelines for law enforcement. (2)
A criminal law must be sufficiently clear in at least three respects:  (1) a person of
ordinary intelligence must be given a reasonable opportunity to know what is prohibited; (2) the
law must establish determinate guidelines for law enforcement; and (3) where First Amendment
freedoms are implicated, the law must be sufficiently definite to avoid chilling protected
expression.  See Long v. State, 931 S.W.2d 285, 287 (Tex. Crim. App. 1996).  When a vagueness
challenge involves First Amendment considerations, a criminal law may be held facially invalid
even though it may not be unconstitutional as applied to the defendant's conduct.  See id. at 288.
The State argues that while the operative words in section 42.05 are not defined,
the statute nevertheless gives police officers and other persons of ordinary intelligence reasonable
notice of what is proscribed.  Terms not defined in a statute are given their plain and ordinary
meaning.  See Floyd v. State, 575 S.W.2d 21, 23 (Tex. Crim. App. 1978).  Words with meanings
so well known as to be understood by a person of ordinary intelligence are not considered vague
and indefinite.  See id.  As the Dallas Court of Appeals noted in its opinion in Morehead, the
words used in section 42.05--"prevent," "disrupt," "obstruct," and "interfere"-- have commonly
understood meanings.  See Morehead v. State, 746 S.W.2d 830, 837 (Tex. App.--Dallas 1988),
rev'd and remanded, 807 S.W.2d 577 (Tex. Crim. App. 1991).  These meanings were further
clarified and narrowed by the court of criminal appeals when it held that the defendant's conduct
must substantially impair the ordinary conduct of the meeting.  See Morehead, 807 S.W.2d at
581; see also Kolender v. Lawson, 461 U.S. 352, 355 n.4 (1983) (when determining whether
statute is too vague or indefinite, statute must be taken as if it read precisely as state's highest
court has interpreted it).
With respect to establishing determinate guidelines for law enforcement, Markovich
argues that the court of criminal appeals' opinion in Morehead aggravated, rather than
ameliorated, section 42.05's vagueness.  He urges that, under the court's construction of the
statute, an officer must make a judgment call as to whether a person's conduct "substantially"
disrupts a meeting.  He compares this to the California statute at issue in Kolender, which
required a person detained by a police officer to provide "credible and reliable" identification
upon request.  The United States Supreme Court held this statute unconstitutionally vague
because, as construed by the California courts, the statute contained no standard for determining
what constituted "credible and reliable" identification, but instead left this to the discretion of the
police officer.  See Kolender, 461 U.S. at 358-60. (3)
Section 42.05, as construed by the court of criminal appeals in Morehead, does not 
confer similar discretion on Texas police officers.  Whether a person's conduct substantially
impairs the ordinary conduct of a meeting is an objective standard that does not acquire its
meaning from a particular officer's determination of what constitutes a "substantial" impairment. 
Of course, a police officer must make an initial determination as to whether the statute has been
violated before making an arrest.  But this is a far cry from making the officer's assessment of
the defendant's conduct the defining element of the offense, as was the case in Kolender.
Markovich also argues that Morehead, by limiting the application of section 42.05
to conduct that curtails the exercise of others' First Amendment rights, forces police officers to
know and apply First Amendment jurisprudence before making an arrest.  See Long, 931 S.W.2d
at 295 (former stalking statute's First Amendment defense did not provide adequate guidelines for
law enforcement).  We believe this argument misconstrues the holding in Morehead.  As
previously noted, the court construed section 42.05 to criminalize "only physical acts or verbal
utterances that substantially impair the ordinary conduct of lawful meetings and thereby curtail
the exercise of others' First Amendment rights."  Morehead, 807 S.W.2d at 581.  We do not
understand the last quoted phrase as making the curtailment of others' First Amendment rights an
element of the offense, but merely as expressing the court's belief that its narrowing construction
properly balances the First Amendment rights of all parties.
Markovich further argues that section 42.05 chills protected expression because
enforcement of the statute "depends upon the unknown sensitivity to criticism of other participants
in the meeting."  This argument mistakenly assumes that a violation of the statute depends on the
subjective reaction of others to the defendant's conduct.  There is nothing in the language of the
statute or in the opinion in Morehead to support this assumption.  Instead, a person violates the
statute if, with intent to prevent or disrupt a lawful meeting, he obstructs or interferes with the
meeting by physical actions or verbal utterances that substantially impair the ordinary conduct of
the meeting.  It is the defendant's conduct, not the reaction of others, that is determinative.
"Condemned to the use of words, we can never expect mathematical certainty from
our language."  Grayned v. City of Rockford, 408 U.S. 104, 110 (1972) (footnote omitted)
(rejecting vagueness challenge to statute prohibiting "willfully mak[ing] or assist[ing] in the
making of any noise or diversion which disrupts or tends to disturb the peace or good order" of
a school).  Section 42.05, as construed in Morehead, is sufficiently clear and understandable to
satisfy the Fourteenth Amendment to the United States Constitution and article I, section 19 of
the Texas Constitution.  The State's second point of error is sustained.

Constitutionality as Applied
Markovich also argues that section 42.05 is unconstitutionally vague and overbroad
as applied to him.  The county court at law properly refused to consider similar arguments below. 
A motion to set aside an indictment or information may be used only for facial challenges on
constitutional grounds.  See State v. Rosenbaum, 910 S.W.2d 934, 946 (Tex. Crim. App. 1994)
(dissenting op. adopted on reh'g).  "An [information] must be facially tested by itself under the
law, as a pleading; it can neither be supported nor defeated as such by what evidence is introduced
on trial.  A fortiori, it can not be supported or defeated by evidence presented at pretrial."  Id. at
948 (citations omitted).  Whether Markovich's conduct actually violated section 42.05 must be
determined at trial.  If convicted, he may argue that the statute was unconstitutionally applied to
him. 
The district court's order is reversed and the cause is remanded for further
proceedings.

 

				Mack Kidd, Justice
Before Chief Justice Aboussie, Justices Kidd and B. A. Smith
Reversed and Remanded
Filed:   October 19, 2000
Publish
1.        "A person commits an offense if, with intent to prevent or disrupt a lawful meeting,
procession, or gathering, he obstructs or interferes with the meeting, procession, or gathering by
physical action or verbal utterance."  Id. § 42.05(a).  
2.        "I'm going to declare the statute unconstitutional as being overbroad . . . in light of the fact
that anyone could decide to stop speaking, and if that were to happen, then police officers could
decide to remove people simply because they were holding up signs, and in their mind, that would
be interrupting a public meeting."
3.        "At oral argument, [counsel for the state] confirmed that a suspect violates [the statute]
unless 'the officer [is] satisfied that the identification is reliable.'" Id. at 360.

 assessment of
the defendant's conduct the defining element of the offense, as was the case in Kolender.
Markovich also argues that Morehead, by limiting the application of section 42.05
to conduct that curtails the exercise of others' First Amendment rights, forces police officers to
know and apply First Amendment jurisprudence before making an arrest.  See Long, 931 S.W.2d
at 295 (former stalking statute's First Amendment defense did not provide adequate guidelines for
law enforcement).  We believe this argument misconstrues the holding in Morehead.  As
previously noted, the court construed section 42.05 to criminalize "only physical acts or verbal
utterances that substantially impair the ordinary conduct of lawful meetings and thereby curtail
the exercise of others' First Amendment rights."  Morehead, 807 S.W.2d at 581.  We do not
understand the last quoted phrase as making the curtailment of others' First Amendment rights an
element of the offense, but merely as expressing the court's belief that its narrowing construction
properly balances the First Amendment rights of all parties.
Markovich further argues that section 42.05 chills protected expression because
enforcement of the statute "depends upon the unknown sensitivity to criticism of other participants
in the meeting."  This argument mistakenly assumes that a violation of the statute depends on the
subjective reaction of others to the defendant's conduct.  There is nothing in the language of the
statute or in the opinion in Morehead to support this assumption.  Instead, a person violates the
statute if, with intent to prevent or disrupt a lawful meeting, he obstructs or interferes with the
meeting by physical actions or verbal utterances that substantially impair the ordinary conduct of
the meeting.  It is the defendant's conduct, not the reaction of others, that is determinative.
"Condemned to the use of words, we can never expect mathematical certainty from
our language."  Grayned v. City of Rockford,