                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                             NOS. 2-08-070-CR
                                  2-08-071-CR
                                  2-08-072-CR
                                  2-08-073-CR
                                  2-08-074-CR


MARIO RICO MARTINEZ                                         APPELLANT

                                       V.

THE STATE OF TEXAS                                               STATE

                                   ------------

         FROM COUNTY COURT AT LAW NO. 2 OF WICHITA COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

I.   Introduction

     Appellant appeals five convictions under Texas Penal Code section

71.021 for violations of civil injunctions entered under the Texas “gang



     1
         … See Tex. R. App. P. 47.4.
injunction statute.” Tex. Civ. Prac. & Rem. Code Ann. § 125.065 (Vernon

2005).    In four points, he argues that Texas Penal Code section 71.021 is

unconstitutionally overbroad and vague on its face; that Texas Civil Practice

and Remedies Code section 125.065(a)(2) violates the separation of powers

doctrine by allowing district judges to order reasonable restrictions to enforce

section   71.021; and    that individual provisions    of the   injunction   are

unconstitutionally vague and overbroad. We affirm.

II.   Factual and Procedural Background

      Appellant was charged by information in five separate cause numbers

with violations of two gang injunctions: a temporary injunction entered on

September 14, 2006, against twenty-one members of the Varrio Carnales (VC)

street gang and a permanent injunction entered against the same parties on

April 6, 2007, by the 89th District Court of Wichita County, Texas. The court

ordered the injunctions under section 125.065 of the civil and practice remedies

code. Tex. Civ. Prac. & Rem. Code Ann. § 125.065. This section provides

that a trial court can enter a temporary or permanent injunction against a

criminal street gang member based on the finding that gang activity is a public

nuisance. See id. Section 125.065 states,

      (a) If the court finds that a combination or criminal street gang
      constitutes a public nuisance, the court may enter an order:


                                       2
            (1) enjoining a defendant in the suit from engaging in
            the gang activities of the combination or gang; and

            (2) imposing other reasonable requirements to prevent
            the combination or gang from engaging in future gang
            activities.

      (b) If the court finds that a place is habitually used in a manner that
      constitutes a public nuisance, the court may include in its order
      reasonable requirements to prevent the use of the place for gang
      activity.

Id.

      The temporary and permanent injunctions outlined a safety zone

comprising 1.54 square miles called the “VC Safety Zone #1” (Safety Zone) in

an area of Wichita Falls known for its heavy gang activity. The injunctions at

issue prohibited 29 acts by Appellant while he was within the Safety Zone. 2

The lists included illegal acts, such as vandalism and possession of illegal drugs,

but also otherwise-legal activities, such as being seen in public with any other

member of the VC gang and wearing specific clothing denoting gang

membership.

      On December 13, 2006, Wichita Falls police officers Foster and Sanchez

observed Appellant making hand gestures with his middle and ring fingers,

which they believed to be gang signs, a violation of provision 16 of the


      2
       … The temporary injunction prohibited 29 acts, but the permanent
injunction reduced the restrictions to 26 acts.

                                        3
temporary injunction.    On January 2, 2007,       Officers Esteves and Saenz

observed Appellant riding as a passenger in a vehicle driven by another person

named in the temporary injunction, a violation of provision 2 of that injunction.

On February 20, 2007, Officer Smyth observed Appellant, within the Safety

Zone, sitting in a lawn chair on the property of a fellow VC gang member along

with two defendants named in the temporary injunction, a violation of

provisions 2 and 29 of that injunction. On April 25, 2007, Officers Esteves and

Saenz observed Appellant riding in a vehicle with other known gang members,

a violation of provision 2 of the permanent injunction. Finally, on September

6, 2007, Officers Hogan and Montana observed Appellant on the street wearing

clothes that identified him as a member of the VC gang, a violation of provision

15 of the permanent injunction. The officers arrested Appellant based on these

violations, and the State charged him by information, in all five cases, with

knowingly violating the injunction orders, a Class A misdemeanor under Texas

Penal Code Section 71.021. Section 71.021, entitled “Violation of Court Order

Enjoining Organized Criminal Activity,” states,

      (a) A person commits an offense if the person knowingly violates
      a temporary or permanent order issued under Section 125.065(a)
      or (b), Civil Practice and Remedies Code.

      (b) If conduct constituting an offense under this section also
      constitutes an offense under another section of this code, the actor
      may be prosecuted under either section or under both sections.

                                       4
         (c) An offense under this section is a Class A misdemeanor.

Tex. Penal Code Ann. § 71.021 (Vernon 2008).

         Appellant filed a pretrial motion to dismiss, arguing that Texas Penal Code

section 71.021, Texas Civil Practice and Remedies Code Section 125.065, and

the injunctive provisions are unconstitutional. The trial judge overruled the

motion.      Appellant agreed to a plea bargain and pleaded guilty to all five

offenses, which resulted in a sentence of 305 days of confinement and a

$4,000 fine for each offense, punishment running concurrently. The trial court

certified Appellant’s right to appeal matters which were raised by written

motion and ruled on before trial. Appellant now appeals based on this limited

right.

III.     Appellant’s First Three Points

         In his first three points, Appellant argues that section 71.021 is

unconstitutionally overbroad and vague on its face.         Appellant also argues

section 125.065(a)(2) violates the separation of powers doctrine by allowing

district judges to order “reasonable restrictions” by civil injunctions that are

enforced by criminal prosecutions under 71.021 of the penal code, thereby

creating new criminal laws. This court recently rejected identical arguments

with respect to the same statutes. See Goyzueta v. State, 266 S.W.3d 126,


                                          5
130–37 (Tex. App.—Fort Worth, no pet. h.). Goyzueta involved the very same

injunction that Appellant now challenges. Id. at 129. For the same reasons

articulated in our opinion in that case, we reject Appellant’s arguments

regarding the constitutionality of penal code section 71.021 and the alleged

violation of separation of powers in civil practice and remedies code section

125.065. See id. We overrule Appellant’s first, second, and third points.

IV.   Constitutionality of the Injunctive Provisions

      In his fourth point, Appellant argues that the injunctions’ specific

provisions that he was charged with violating are unconstitutionally vague and

overbroad, threatening his freedom of association and speech. We will analyze

each of the relevant provisions in turn.

      A.    Associating with and entering the property of other gang members

      Provision 2 3 of the permanent injunction prohibits Appellant from

“associating, standing, sitting, walking, driving, bicycling, gathering or

appearing anywhere in public view with any other Defendant herein, with any

other individual who the Defendant knows is a member of the VC, or with other




      3
       … Provision 2 of the temporary injunction is substantially similar but has
a textual difference that we will address in a later section.

                                       6
known members of any other street gang.” Provision 29 4 of the temporary

injunction prohibits Appellant from “entering on to the property of another

Defendant who is a party to this lawsuit or any other individual who Defendant

knows is a member of the VC” at any location in Wichita County.

            1.    Overbreadth and right of association

      W e first examine the overbreadth argument. See Village of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S. Ct.

1186, 1191 (1982) (stating that a court’s first task is to determine whether the

enactment reaches a substantial amount of constitutionally protected conduct).

      Appellant argues that provision 2 of both injunctions is overbroad because

of the associational restriction.   He argues that both provisions 2 and 29

broadly sweep over the First and Fourteenth Amendments’ right of association

by preventing him from appearing in public with a gang member for social and

political purposes or even with a gang member relative.

                                Applicable Law

      A law is impermissibly overbroad if, in addition to proscribing activities

that may be constitutionally prohibited, it sweeps within its coverage speech

or conduct protected by the First Amendment. Bynum v. State, 767 S.W.2d


      4
       … Provision 29 of the temporary injunction is identical to Provision 26
of the permanent injunction.

                                       7
769, 772 (Tex. Crim. App. 1989). An overbreadth challenge will succeed if the

law reaches a substantial amount of constitutionally protected conduct. Village

of Hoffman Estates, 455 U.S. at 494, 102 S. Ct. at 1191.

      There are two types of associations entitled to First Amendment

protection: those with intrinsic or “intimate” value and those that are

“instrumental” to forms of political or religious expression or activity.     See

Roberts v. U.S. Jaycees, 468 U.S. 609, 617–18, 104 S. Ct. 3244, 3249–50

(1984).   Intimate associations include those that “attend the creation and

sustenance of a family” such as marriage and childbirth and those that have

“such attributes as relative smallness, a high degree of selectivity in decisions

to begin and maintain the affiliation, and seclusion from others in critical

aspects of the relationship.” Id. at 619-20, 104 S. Ct. at 3250. Instrumental

associations include associating with others “in pursuit of a wide variety of

political, social, economic, educational, religious, and cultural ends.”    Id. at

622, 104 S. Ct. at 3252. The Supreme Court has stated that the Constitution

does not recognize a generalized right of “social association.” City of Dallas v.

Stanglin, 490 U.S. 19, 25, 109 S. Ct. 1591, 1595 (1989). The Court added

that it is possible to find some ”kernel of expression” in many activities,

including “walking down the street or meeting one’s friends at a shopping mall,

but such a kernel is not sufficient to bring the activity within the protection of

                                        8
the First Amendment.” Id., 109 S. Ct. at 1595. Additionally, the Court has

stated that “First Amendment [protection] does not extend to joining with

others for the purpose of depriving third parties of their lawful rights.” Madsen

v. W omen’s Health Ctr., Inc., 512 U.S. 753, 776, 114 S. Ct. 2516, 2530

(1994).

                                    Analysis

      Unlike statutes which are potentially applicable to all persons, gang

injunctions apply only to those creating a “public nuisance.” Section 125.062

states that “a combination or criminal street gang that continuously or regularly

associates in gang activities is a public nuisance.” Tex. Civ. Prac. & Rem. Code

§ 125.062 (Vernon 2005). Thus, those involved in the public nuisance are not

general members of the public but are active participants in a gang. See id. §§

125.062, 125.065(a). Further, gang injunctions are enforceable only against

individuals who “knowingly” violate an injunction provision. Tex. Penal Code

Ann. § 71.021(a).

      Looking at the association prohibited here, the gatherings within the zone

do not fit the category of intimate associations, as VC is a large group that

does not outwardly appear to have family-related motivations. See Roberts,

468 U.S. at 620, 104 S. Ct. at 3250.       The gatherings do not fall into the

instrumental association category, either, as the group does not appear to meet

                                       9
in public for political, economic, educational, religious, or cultural purposes. Cf.

Roberts, 468 U.S. at 622, 104 S. Ct. at 3252 (noting that the Jaycees, a

nonprofit civic organization, fell under the category of an instrumental

association). As to Appellant’s argument that VC gang members meet for

social purposes, the Supreme Court has previously stated that social

associations are not recognized as protected associations under the First

Amendment. See Stanglin, 490 U.S. at 25, 109 S. Ct. at 1595. In this case,

the VC social association rose to the level of a public nuisance, which is why

the injunctions were issued.

      The temporary injunction plainly states that the Safety Zone and

injunctive restrictions are in place to prevent gang-related criminal activity by

VC members. Based on the characteristics of the association at issue, VC

members do not fall within any of the First Amendment’s protected classes of

association. See People ex rel. Gallo v. Acuna, 929 P.2d 596, 613, 615 (Cal.),

cert denied, 521 U.S. 1121 (1997) (rejecting overbreadth challenge to gang

injunction and upholding an injunctive restriction that prohibited appellant from

“standing, sitting, walking, driving, gathering or appearing anywhere in public

view” “with any other known VST [gang] member”).

      Appellant argues that the association prohibition in the injunction does not

take family members into consideration. While it is true that if Appellant has

                                        10
gang member relatives the injunction restricts him from associating with them,

the injunction does clarify that this restriction applies only when the parties are

in public view, and it provides exceptions to the restriction for school

obligations and for minors in the company of a parent or guardian. Creating an

outright exception to the injunction for familial association in the Safety Zone

could make the injunction less effective for dealing with the collective nature

of gang activity.     See People v. Englebrecht, 106 Cal. Rptr. 2d 738, 758

(2001) (holding that “any liberalization of the injunction to try to allow greater

familial contact in the target area would limit the effectiveness of the

injunction”).      Based on the type of association prevented, we hold that

injunctive provision 2 of the temporary and permanent injunctions and provision

29 in the temporary injunction do not restrict a substantial amount of

constitutionally protected conduct.       We overrule Appellant’s overbreadth

challenge regarding those provisions.

              2.     Vagueness of terms

      Appellant argues that provisions 29 and 2 are vague because they violate

the principle that ordinary people must be able to understand what conduct is

prohibited.     He argues that the restricted addresses in provision 29 are too

vague to inform him of the injunction’s boundaries and that provision 2 is vague

regarding persons he cannot appear with in public.

                                        11
                                 Applicable Law

      The void-for-vagueness doctrine states that a law is void 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.” Lawrence v. State, 240 S.W.3d

912, 915 (Tex. Crim. App. 2007). If the law does not substantially implicate

constitutionally protected conduct, it is valid unless it is impermissibly vague in

all applications. Village of Hoffman Estates, 455 U.S. at 495–96, 102 S. Ct.

at 1192. A scienter requirement in a statute alleviates concerns of vagueness.

Gonzales v. Carhart, 127 S. Ct. 1610, 1628 (2007).

                                     Analysis

      Appellant argues that provision 29 is vague due to the lack of a list of

specific addresses that he cannot enter and because the provision’s

geographical scope is “confusing.” But provision 29 prohibits Appellant from

“knowingly” entering property of “another Defendant who is a party to this

lawsuit or any other individual who the Defendant knows is a member of the

VC.” Thus, Appellant will only violate this provision if he has knowledge that

the property is that of a party to the lawsuit or a VC gang member.

      Appellant had notice that he could not knowingly enter the VC gang

member properties because both the temporary injunction listed him as a

                                        12
defendant and specifically listed the other defendants.       Appellant was not

prohibited from entering the Safety Zone itself or various other neighborhoods

within Wichita County; rather, he could not enter the property of specifically

listed defendants and persons known to him as VC gang members. The text

of provision 29 is not so difficult that an ordinary person could not understand

it; it specifies that Appellant could not enter known gang member properties or

properties belonging to specifically listed persons, preventing arbitrary and

discriminatory police enforcement.

      Appellant also argues that provision 2 is vague because it appears to

prohibit Appellant’s entire presence within the Safety Zone without providing

guidelines for his behavior while in that zone. Provision 2 clearly describes

what he cannot do within the Safety Zone and persons he cannot be seen with

in public. The injunctions both state with specificity the outer boundaries of the

Safety Zone, including major street names, block numbers, and distance

included from the curb line. The Safety Zone clearly encompasses the area

where VC members are a public nuisance: the injunction states that “unless

enjoined, the Defendants will continue to use the ‘VC Safety Zone #1‘ for the

purposes of engaging in organized criminal activity as well as other gang related




                                       13
conduct.” The injunction largely proscribes conduct within these boundaries;5

the police therefore had clear guidelines for arrests for injunction violations and

could not arbitrarily arrest Appellant within the Safety Zone. Cf. Chicago v.

Morales, 527 U.S. 41, 64, 119 S. Ct. 1849, 1863 (1999) (holding loitering

ordinance unconstitutionally vague due to the vast police discretion in ordering

dispersal of any person).

      Appellant also argues that provision 2 of the temporary injunction is

unconstitutionally vague because it prevents him from appearing in public within

the Safety Zone with anyone “charged with a criminal offense.” He argues this

clause    is   not   accompanied    with   guidelines   to   prevent   arbitrary   and

discriminatory enforcement.        If Appellant actually had been charged with

violating this clause, we may have been presented with a different question

because the phrase is expansive regarding what persons are off-limits from

public encounters. The phrase could include persons charged with offenses not

known to Appellant, allowing a potential arrest when Appellant had no notice

that he was violating the injunction. However, Appellant was not arrested

under this clause of the injunctive provision. Appellant was arrested twice for




      5
       … Provision 29 of the temporary injunction and 26 of the permanent
injunction prohibit Appellant from entering VC and listed defendants’ properties
within Wichita County.

                                           14
violating provision 2 by appearing in public with other persons named as

defendants in the temporary injunction. This clause was not even included in

the permanent injunction now in place. Thus, Appellant does not have standing

to challenge this clause. See Goyzueta, 266 S.W.3d at 133 (“[I]f there is no

constitutional defect in the application of the statute to a litigant, he does not

have standing to argue that it would be unconstitutional if applied to third

parties in hypothetical situations.”).6

      B.    Using gang hand signs and wearing gang clothing

      Provisions 15 of the permanent injunction and 16 of the temporary

injunction prohibit Appellant from ”[u]sing or making words, phrases, physical

gestures, or symbols, commonly known as gang hand signs or engaging in

other forms of communication which Defendant knows describes, refers, or

identifies members of the combination, or wearing clothes that particularly

identify membership in the combination.”

            1.     Overbreadth and First Amendment Speech Concerns


      6
       … Appellant also argues that provision 2 is vague because it does not
define “gang member.” This argument is flawed because there is a scienter
requirement in the text of the injunction for a violation to occur. Appellant
must know the person is a member of VC or another street gang. The scienter
requirement removes concerns of vagueness. See Gonzalez, 127 S. Ct. at
1628; see also Acuna, 929 P.2d at 613 (1997) (holding with respect to similar
gang injunctions that trial courts should find the requirement of defendant’s
knowledge to be implied in the injunction).

                                          15
                                Gang hand signs

      Appellant argues that provision 16 of the temporary injunction and

provision 15 of the permanent injunction 7 create an unconstitutional restriction

on speech. Appellant first targets the clause that prohibits the use of gang

signs and gestures to identify membership in a gang. Appellant argues these

provisions encompass protected speech, making them overbroad.

                                 Applicable Law

      A law is content-neutral when it is justified without reference to the

content of the regulated speech. Bartnicki v. Vopper, 532 U.S. 514, 526, 121

S. Ct. 1753, 1760 (2001).        The Supreme Court in Madsen pointed out a

significant difference between injunctions and statutes in the context of

protected speech claims. Madsen, 512 U.S. at 762, 114 S. Ct. at 2523. An

injunction can regulate a particular group (or individuals) and its speech because

of the group’s past actions in the context of a specific dispute between real

parties. Id., 114 S. Ct. at 2523. The parties seeking the injunction assert a

violation of their rights, and the court hearing the action is charged with

fashioning a remedy for a specific deprivation, not with the drafting of a statute

addressed to the general public. Id., 114 S. Ct. at 2523. An injunction is




      7
          … Appellant was charged with and convicted of violating both.

                                       16
content-neutral when it does not prohibit a particular message. Id., 114 S. Ct.

at 2523. The persons prohibited may all happen to share the same viewpoint,

but this does not mean that the injunction was created to quash a particular

viewpoint. See id., 114 S. Ct. at 2523.




                                      17
                              Standard of Review

      The standard when evaluating a content-neutral injunction is whether the

challenged provision of the injunction burdens no more speech than necessary

to serve a significant government interest. Id. at 765, 114 S. Ct. at 2525. The

injunction must employ the least restrictive means to accomplish its legitimate

purpose. Id. at 775, 114 S. Ct. at 2530.

                                    Analysis

      This injunction is content-neutral because it did not prohibit any particular

gang sign message; rather, it prohibited the use of all gang signs and gestures

within the delineated zone. See id. at 763, 114 S. Ct. at 2523 (stating the

injunction was content-neutral because none of the restrictions imposed by the

court were directed at the contents of petitioner’s message). In this case, there

were several important government interests in preventing VC members from

using the Safety Zone to engage in criminal activity that endangers those

residing within the zone. The injunction itself says the defendants are enjoined

from gang-related conduct because “[s]uch acts constitute irreparable harm

because they jeopardize the safety and well being of the citizens living in the

‘VC Safety Zone #1.‘” There is an additional implied government interest in

preventing the incitement of violence because, beyond general identification,

the gang signs can also be used as threats or to provoke a violent event. See

                                       18
Saenz v. State, 976 S.W.2d 314, 318 (Tex. App.—Corpus Christi 1998, no

pet.) (describing gang sign language that indicated threats of violence between

gang members).

      The burden on Appellant’s and the listed defendants’ speech is not

beyond the means necessary to maintain a safe area. The provision is not all-

encompassing, as Appellant argues; it narrowly prohibits speech via gang signs

and gestures only. Therefore, Appellant can speak about a wide range of topics

within the Safety Zone without having his speech restrained. The injunction

applies in equal force to all gang signs, not just VC signs, meaning the

injunction does not focus on Appellant’s particularized message. See Madsen,

512 U.S. at 763, 114 S. Ct. at 2523 (stating “none of the restrictions imposed

by the court were directed at the contents of petitioner’s message”); see also

City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 47,106 S. Ct. 925, 929

(1986) (holding that the restriction was content-neutral because it was aimed

at the secondary effects in the surrounding community, not at a particular

message). Therefore, the provision burdens no more speech than necessary to

protect the safety of the neighborhood. See Madsen, 512 U.S. at 776, 114 S.

Ct. at 2530 (holding that buffer zone and noise restrictions burdened no more

speech than necessary to eliminate the unlawful conduct restrained in the state




                                      19
court’s injunction). We overrule Appellant’s overbreadth challenge for these

provisions.

              2.   Vagueness

      Appellant next argues that provision 15 of the permanent injunction and

16 8 of the temporary injunction are unconstitutionally vague. He argues that

there is no definition of “words, phrases, physical gestures or symbols” that are

“commonly known as gang hand signs.”

                         Applicable Law and Analysis

      Based on the previously stated void-for-vagueness doctrine, the provision

appears to define the conduct sufficiently for ordinary people to understand it

and for police officers to enforce the provision nonarbitrarily. See Lawrence,

240 S.W.3d at 915. The language indicates very specific motions and phrases

through limiting the subject matter to hand gestures that identify the person as

a gang member.     The language is specific enough to prevent arbitrary and

discriminatory enforcement because hand gestures used by gangs are

conspicuous and not difficult to determine, especially by trained police officers.

See Aviles v. State, No. 05-07-00477-CR, 2008 WL 1850779, at *4 (Tex.

App.—Dallas Apr. 28, 2008, pet. ref’d) (not designated for publication)


      8
        … The provisions are identical, and Appellant was charged and convicted
for violating both.

                                       20
(discussing Garland’s inclusion of gang hand signs in the multi-factor system

used for identifying potential gang members).        Aside from training and

experience, police officers may even rely on statutory language as a guide, such

as section 71.01(d) of the penal code, which states that “‘criminal street gang’

means three or more persons sharing a common identifying sign or symbol or

an identifiable leadership who continuously or regularly associate in the

commission of criminal activities.” Tex. Penal Code Ann. § 71.01 (Vernon

2003) (emphasis added).

      Appellant also makes a vagueness challenge regarding the gang clothing

restrictions found in provisions 15 of the permanent injunction and 16 of the

temporary injunction are unconstitutionally vague. Based on the previously

stated void-for-vagueness standard, the provisions define the conduct

sufficiently for ordinary people to understand it. The language is also specific

enough to prevent arbitrary and discriminatory enforcement because gang

colors are commonly known in a region, especially by the police. See Beasley

v. State, 902 S.W.2d 452, 454 (Tex. Crim. App. 1995) (discussing officer’s

knowledge of appellant’s gang membership based on specific color of clothing);

Anderson v. State, 901 S.W.2d 946, 948 (Tex. Crim. App. 1995) (discussing

officer’s testimony that he knew defendant was a gang member because he

was in company of gang members and wore a gang T-shirt). The police will not

                                      21
be free to pursue their personal predilections because they will be limited to

stopping named defendants who choose to wear gang-signifying clothing within

the Safety Zone.    We overrule Appellant’s vagueness challenge to these

provisions, and we overrule Appellant’s fourth point.

V.    Conclusion

      Having overruled all four of Appellant’s points, we affirm the judgment.


                                          PER CURIAM

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 12, 2009




                                     22
