                                                                                                          ACCEPTED
                                                                                                      03-15-00063-CR
                                                                                                              5890589
                                                                                           THIRD COURT OF APPEALS
                                                                                                      AUSTIN, TEXAS
                                                                                                 6/30/2015 6:37:47 PM
                                                                                                    JEFFREY D. KYLE
                                                                                                               CLERK
                                          BOTSFORD & ROARK
                                              1307 WEST AVENUE
                                              AUSTIN, TEXAS 78701
                                              www.davidbotsfordlaw.com             FILED IN
                                                                         3rd COURT OF APPEALS
David L. Botsford**                                                           AUSTIN,
                                                                          Brian J. RoarkTEXAS
Telephone: (512) 479-8030                                                 Telephone: (512) 476-1900
Telecopier: (512) 479-8040                                               6/30/2015      6:37:47
                                                                          Telecopier: (512)       PM
                                                                                            479-8040
E-Mail: DBotsford@aol.com                                                   JEFFREY
                                                                          E-Mail:          D. KYLE
                                                                                  Brian@brianroark.com
                                                                                     Clerk
_____________________________
*Board Certified in Criminal Law                                         Frank Maloney, Of Counsel*
**Board Certified in Appellate Criminal Law                              Woody Roark, Of Counsel
Texas Board of Legal Specialization


                                                June 30, 2015


Mr. Jeffrey D. Kyle
Clerk, Third Court of Appeals
P.O. Box 12547
Austin, Texas 78711

Re: Ex parte James Richard "Rick" Perry; No. 03-15-00063-CR

Dear Mr. Kyle:

       Governor Perry submits this letter to bring to the Court's attention a recently decided
U.S. Supreme Court decision that unambiguously repudiates one of the State's essential
theories in this case. That decision, Johnson v. United States, 576 U.S.___ (No. 13-7120,
June 26, 2015), is available at http://www.supremecourt.gov/opinions/14pdf/13-7120_p86b.pdf, and
Governor Perry requests that this letter be circulated to Justices Puryear, Pemberton and
Field.

       In Johnson, as a matter of federal constitutional law, the Supreme Court expressly
repudiated a key argument made by the dissent (and by the State in this case) – that "a statute
is void for vagueness only if it is vague in all its applications." Slip Op. at 11. The Court
recognized some "statements" in prior cases that "could be read to suggest otherwise, [but]
our holdings contradict the theory that a vague provision is constitutional merely because
there is some conduct that clearly falls within the provision's grasp." Slip Op. at 11
(emphasis in original). Analogously, the Court explained, it had "deemed void for vagueness
a law prohibiting people on sidewalks from `conduct[ing] themselves in a manner annoying
to persons passing by' – even though spitting in someone's face would surely be annoying."
Slip Op. at 11 (citing Coates v. City of Cincinnati, 402 U.S. 611 (1971)).
        Johnson thus alters the analysis which must be applied to Governor Perry's Issues II
and VII(A), which address the vagueness of the statutory scheme upon which Count II is
premised (i.e., Section 36.03(a)(1), given the definition of coercion contained in Section
1.07(a)(9)(F)). Significantly, the Supreme Court's vagueness jurisprudence now unmistakably
rejects the State's reliance upon Bynum v. State, 767 S.W.2d 767, 774 (Tex. Crim. App. 1989)
for the proposition that "[w]hen a statute does not implicate constitutionally protected
conduct, a reviewing court should sustain the vagueness challenge only if the statute is
impermissibly vague in all its applications." State's Brief at 23-24 & n.58. Of course,
Section 36.03(a)(1) does implicate "constitutionally protected conduct," but Johnson makes
clear that statutes can and must be invalidated even when some application of a vague statute
might be clearly permissible – as with the statute about "annoying" conduct in Coates that
the Supreme Court referenced in Johnson.

                                                  Respectfully submitted,

                                                  /s/ David L. Botsford

cc:
Mr. Michael McCrum
Via Email Only

Mr. David Gonzalez
Via Email Only




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