                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-116-CR


MAURICE FELTON LAWSON                                              APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

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          FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY

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                                  OPINION

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                                I. Introduction

      In three points, Appellant Maurice Felton Lawson appeals his conviction

for violation of a permanent injunction under the “gang injunction statute.” We

affirm.

                    II. Factual and Procedural Background

      On September 18, 2006, the 89th District Court of Wichita County,

Texas, issued a temporary injunction under section 125.065 of the civil practice
and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 125.065 (Vernon

2005). The injunction named seventeen members of the street gang Varrio

Carnales (“VC”), including Lawson, who had allegedly engaged in criminal

activity.    The State, through the injunction, sought to prohibit the named

defendants from engaging in twenty-nine activities. Subsequently, the trial

court entered an order making the injunction permanent.

      On or about February 20, 2007, Lawson violated the trial court’s order

enjoining organized criminal activity by “[a]ssociating, standing, sitting, walking,

driving, bicycling, gathering or appearing anywhere in public view” with a VC

gang member who was subject to the permanent injunction.1 Lawson pleaded

guilty, and pursuant to a plea bargain agreement with the State, the trial court

sentenced him to 300 days’ confinement and a $4,000 fine. Lawson now

appeals.2

                                  III. Discussion

      In his first two points, Lawson claims that penal code section 71.021 is

facially unconstitutional; in his third point, he argues that it is unconstitutional

as applied to him.



      1
          … See Tex. Penal Code Ann. § 71.021 (Vernon 2003).
      2
        … Lawson’s appeal is limited by the rules of appellate procedure and by
the trial court’s certification of his right to appeal. See Tex. R. App. P. 25.2.

                                         2
A. Standard of Review

      We review the constitutionality of a criminal statute de novo, as a

question of law.      See Owens v. State, 19 S.W.3d 480, 483 (Tex.

App.—Amarillo 2000, no pet.); State v. Salinas, 982 S.W.2d 9, 10–11 (Tex.

App.—Houston [1st Dist.] 1997, pet. ref’d). When confronted with an attack

upon the constitutionality of a statute, we presume that the statute is valid and

that the legislature has not acted unreasonably or arbitrarily.    Rodriguez v.

State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Ex parte Dave, 220 S.W.3d

154, 156 (Tex. App.—Fort Worth 2007, pet. ref’d), cert. denied, 128 S. Ct.

628 (2007). The burden rests upon the individual who challenges the statute

to establish its unconstitutionality. Rodriguez, 93 S.W .3d at 69; Dave, 220

S.W.3d at 156. In the absence of contrary evidence, we will presume that the

legislature acted in a constitutionally sound fashion. Rodriguez, 93 S.W.3d at

69. The statute must be upheld if a reasonable construction can be ascertained

that will render the statute constitutional and carry out the legislative intent.

Shaffer v. State, 184 S.W.3d 353, 363 (Tex. App.—Fort Worth 2006, pet.

ref’d); see Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.]

1979).




                                       3
B. Facial and As-Applied Challenges

      There are two types of challenges to the constitutionality of a statute:

the statute is unconstitutional as applied to the defendant, or the statute is

unconstitutional on its face. Fluellen v. State, 104 S.W .3d 152, 167 (Tex.

App.—Texarkana 2003, no pet.). The constitutionality of a statute as applied

must be raised in the trial court in order to preserve error. Curry v. State, 910

S.W.2d 490, 496 (Tex. Crim. App. 1995). However, a defendant may raise a

constitutional challenge to the facial validity of a statute for the first time on

appeal. Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994), cert.

denied, 514 U.S. 1005 (1995).

      1. Facial Constitutionality of Penal Code Section 71.021

      In his first point, Lawson argues that penal code section 71.021 is

unconstitutionally vague and overbroad and therefore violates both the United

States Constitution and the Texas Constitution. This court recently rejected an

argument identical to Lawson’s. See Goyzueta v. State, 266 S.W.3d 126,

130–37 (Tex. App.—Fort Worth 2008, no pet.). Goyzueta involved the same

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

articulated in our opinion in that case, we reject Lawson’s argument and,

accordingly, overrule his first point.




                                         4
      In     Lawson’s   second    point,   he   argues   that   section    71.021   is

unconstitutional “on its face” because it violates the Nondelegation Doctrine. 3

Specifically, Lawson’s chief complaint is that section 71.021 is unconstitutional

because it is “plainly apparent” that it does not belong to any of the six

classifications listed by the Texas Supreme Court in Housing Authority of City

of Dallas v. Higganbotham, 135 Tex. 158, 171–72, 143 S.W.2d 79, 87

(1940).

               a. Nondelegation Doctrine

      In Higganbotham, the court listed six classifications of delegations of

legislative responsibility that do not run afoul of the Nondelegation Doctrine

enunciated in article II, section 1 of our state’s constitution.4         135 Tex. at


      3
       … On appeal, Lawson argues that section 71.021 is unconstitutional
based on the Nondelegation Doctrine; however, in his pretrial motions, Lawson
argued unconstitutionality based on the Separation of Powers Doctrine.
Because Lawson may raise a constitutional challenge to the facial validity of a
statute for the first time on appeal, we will address his second point. Garcia,
887 S.W.2d at 861.
      4
          … Article II, section 1 of the Texas Constitution of 1876 states:

      The powers of the Government of the State of Texas shall be
      divided into three distinct departments, each of which shall be
      confided to a separate body of magistracy, to wit: Those which
      are Legislative to one; those which are Executive to another, and
      those which are Judicial to another; and no person, or collection of
      persons, being of one of these departments, shall exercise any
      power properly attached to either of the others, except in the
      instances herein expressly permitted.

                                           5
171–72, 143 S.W.2d at 87. The one of primary concern to us is the first,

which states that nondelegation is not violated “[w]here the legislature because

of the nature of the subject of legislation cannot practically and efficiently

exercise such powers . . . .“ Id., 143 S.W.2d at 87 (internal citations omitted).

While “[t]he power to pass laws rests with the Legislature, and that power

cannot be delegated to some commission or other tribunal,” Brown v. Humble

Oil & Refining Co., 126 Tex. 296, 306, 83 S.W.2d 935, 941 (1935), the

legislature can delegate power to a coordinate branch, so long as the legislature

has declared a policy and fixed a primary standard for its implementation. Ex

parte Granviel, 561 S.W.2d 503, 514 (Tex. Crim. App. 1978) (citing Margolin

v. State, 151 Tex. Crim. 132, 205 S.W.2d 775 (1947); Williams v. State, 146

Tex. Crim. 430, 176 S.W.2d 177 (1943)). That primary standard must be

“capable of reasonable application.” Granviel, 561 S.W.2d at 514.

            b. Statutory Provisions

      Section 71.021 of the penal code states that a person commits an

offense if the person knowingly violates a temporary or permanent order issued

under section 125.065(a) or (b) of the civil practice and remedies code, and

that this offense is a Class A misdemeanor.             See Tex. Penal Code




Tex. Const. art. II, § 1.

                                       6
Ann. § 71.021.     Section 125.065 of the civil practice and remedies code

outlines when a trial court can enter a temporary or permanent injunction

against a criminal street gang member. See Tex. Civ. Prac. & Rem. Code Ann.

§ 125.065. It provides:

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

            (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 Texas Legislature enacted this statute in 1993, after establishing that

“gang activity” constitutes a public nuisance, to enable local governments to

obtain civil injunctions against gang members. See Tex. Civ. Prac. & Rem.

Code Ann. § 125.061 (Vernon Supp. 2008), § 125.062–.065 (Vernon 2005).

The overall purpose and policy behind the statute is to promote a peaceful

society by enjoining gang members from engaging in a variety of legal and

illegal activites within a specified area, often called the “safety zone.”

      Section 125.065 provides a guide as to when a trial court can enter a

temporary or permanent order against a criminal street gang member. See Tex.

                                        7
Civ. Prac. & Rem. Code Ann. § 125.065. In conjunction with section 125.065,

section 71.021 of the penal code describes the offense of violation of a court

order enjoining organized criminal activity.   See Tex. Penal Code Ann. §

71.021.   In other words, the legislature has authorized the trial courts to

impose reasonable requirements to prevent a gang member from engaging in

future gang activities while retaining the authority to impose a class A

misdemeanor for violating a court-imposed restriction. Goyzueta, 266 S.W.3d

at 136.




                                      8
            c. Analysis

      While Lawson complains that section 71.021 violates the nondelegation

doctrine, he fails to articulate an argument in support of his claim other than his

statements that “[p]enal laws by their nature are most appropriately exercised

without Legislative delegation,” and “[i]n those instances when delegation is

necessary, power is ordinarily assigned if technical or scientific concerns make

enforcement impractical or inefficient for the legislature.”         Lawson further

argues that the legislature enacted a law that proscribed no conduct at all but

instead delegated the power to define the misconduct to district judges through

“anti-gang injunction” orders.

      We disagree on both accounts. We hold that it is neither practical nor

efficient for the Texas Legislature, which meets every other year for a few

months, to determine the exact requirements necessary in order to prevent

gang members from engaging in future gang activities. Higganbotham, 135

Tex. at 171–72, 143 S.W.2d at 87; see also State v. Rhine, 255 S.W.3d 745,

752 (Tex. App.—Fort Worth 2008, pet. granted) (holding that it is neither

practical nor efficient for the Texas Legislature to determine exactly what

materials   should   be   banned   from       outdoor   burning,   and   under   what

circumstances, including the wind speed, time of day, and other minutiae

related to curbing the legislatively-defined “air pollution”). Therefore, section

                                          9
71.021 falls within the first classification listed in Higginbotham.         See

Higginbotham, 135 Tex. at 171–72, 143 S.W.2d at 87.

      However, even if section 71.021 failed to fall within one of the six

classifications, the listed classifications in Higginbotham are merely indicative

of the supreme court’s prior decisions on the subject of nondelegation and

therefore are not exclusive. Id., 143 S.W.2d at 87. Here, the legislature has

merely asked the trial courts to impose reasonable requirements while the

legislature retains the power to make the law by determining that a violation of

the requirements, even those judicially imposed, is an offense. See Touby v.

United States, 500 U.S. 160, 165, 111 S. Ct. 1752, 1756 (1991) (“Congress

does not violate the Constitution merely because it legislates in broad terms,

leaving a certain degree of discretion to executive or judicial actors.”). 5

Furthermore, the legislature has defined the following key phrases:

      (1) “Criminal street gang” means three or more persons having a
      common identifying sign or symbol or an identifiable leadership who
      continuously or regularly associate in the commission of criminal
      activities.

      (2) “Gang activity” [includes:] organized criminal activity[;]
      terroristic threat[;] coercing, soliciting, or inducing gang



      5
       … Decisions of the United States Supreme Court on the doctrine of
separation of powers are instructive in interpreting our own express
constitutional provisions. Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070
(1927).

                                       10
      membership; criminal trespass[;] disorderly conduct[;] criminal
      mischief that causes a pecuniary loss of $500 or more; a graffiti
      offense [that:] (i) causes a pecuniary loss of $500 or more; or (ii)
      occurs at a school, an institution of higher education, a place of
      worship or human cemetery, a public monument, or a community
      center that provides medical, social, or educational programs[;] a
      weapons offense in violation of Chapter 46, Penal Code[;] or
      unlawful possession of a substance or other item in violation of
      Chapter 481, Health and Safety Code.

      (3) “Public nuisance” [is a] combination or criminal street gang that
      continuously or regularly associates in gang activities.

Tex. Penal Code Ann. § 71.01(d) (Vernon 2003); see Tex. Civ. Prac. & Rem.

Code Ann. § 125.061 (using various provisions of the penal code to define

these types of activity); see also id. § 125.062 (using the penal code definition

for public nuisance as pertaining to gang activities).

      Therefore, we hold that these limitations and guidelines, in addition to the

policy reasons behind the enactment of section 71.021, compel us to the

conclusion that section 71.021 does not violate the Nondelegation Doctrine and

therefore, is not unconstitutional “on its face.” See Granviel, 561 S.W.2d at

514 (holding that the legislature can delegate power to a coordinate branch, so

long as the legislature has declared a policy and fixed a primary standard for its

implementation). Accordingly, we overrule Lawson’s second point.

      2. As-Applied Challenge




                                       11
      In his final point, Lawson challenges the constitutionality of section

71.021 “as applied” to him, claiming that because the State failed to serve

process on his biological mother, Janessa Lawson, in the civil injunction

proceeding, the trial court lacked personal jurisdiction over him to issue the

injunction. Therefore, he argues, because the anti-gang injunction was void as

to him, he could not be prosecuted under section 71.021 for violation of the

injunction.

      For this court to review an attack on the constitutionality of a statute “as

applied,” Lawson must first have raised the issue before trial by written motion

and have obtained a ruling on the motion. Curry, 910 S.W.2d at 496. In

Lawson’s second motion to dismiss, he asserts the unconstitutionality of

section 71.021 in its “application”; however, he does not reference failure of

service of process as the reason. Instead, he claims that section 71.021 is

unconstitutional “as applied” because it violates the Separation of Powers

Doctrine. Based on the record before us, then, Lawson has failed to preserve

his “as applied” argument and has forfeited this point because his complaint on

appeal must comport with the one that he made in the court below.6 See



      6
       … Furthermore, Lawson’s guardian or custodian, Carlas Freeman,
received notice of the hearing and appeared. At Lawson’s bond reduction
hearing, Freeman testified that she was Lawson’s mother, although not his
biological mother, and that she had watched after him for eighteen

                                       12
Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004); Bell v.

State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 827

(1997); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).

Therefore, we overrule Lawson’s third point.

                                IV. Conclusion

      Having overruled all of Lawson’s points, we affirm the trial court’s

judgment.


                                            BOB MCCOY
                                            JUSTICE

PANEL: LIVINGSTON and MCCOY, JJ.; and WILLIAM BRIGHAM, J. (Senior
Justice, Retired, Sitting by Assignment).




years—Lawson’s entire life. Lawson acknowledged Freeman as his “guardian
and next friend” in pleadings filed on his behalf. Freeman appeared at the
hearing, even though Janessa’s name instead of Freeman’s appeared on the
citation, waiving any defect in notice. See Tex. Fam. Code Ann. § 53.06(e)
(Vernon 2008) (allowing anyone but the juvenile to waive service); K.M.P. v.
State, 701 S.W.2d 939, 941 (Tex. App.—Fort Worth 1986, no writ) (holding
that any right of juvenile’s father to be served with copy of summons and a
petition was waived by father’s appearance and voluntary submission to
jurisdiction of court). On these facts, any deficiencies in the service of process
did not adversely affect Lawson’s interests. See, e.g., Tex. Fam. Code Ann.
§ 53.06(a) (stating that, in juvenile court, issuance of summons shall be
directed to the child named in the petition and the child’s parent, guardian, or
custodian); In re V.C.H., 605 S.W.2d 643, 647 (Tex. Civ. App.—Houston [1st
Dist.] 1980, no pet.) (holding that failure of juvenile court to serve child’s
mother with notice did not invalidate transfer order where child’s foster father
was his custodian and foster father was served and appeared at the hearing).

                                       13
PUBLISH

DELIVERED: February 5, 2009




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