Court of Criminal Appeals Rejects Vagueness Challenge to Misdemeanor Disorderly Conduct Law

June 19th, 2019 by Tad Nelson in Misdemeanor Crimes

One of the bedrock principles of criminal law is that a person has the right to notice of the charged offense. This applies to simple misdemeanor crimes as well as felonies. After all, how can you properly defend yourself in court if you do not know what you are accused of doing?

Is There a Conflict With Texas’ Open Carry Laws?

In a recent case, Ross v. State, the Texas Court of Criminal Appeals confronted the question of whether a misdemeanor disorderly conduct charge was too ambiguous. Both a trial judge and an intermediate appeals court previously determined the text of the charge did not give the defendant “sufficient notice” of the crime. But a divided Court of Criminal Appeals disagreed and held the prosecution could proceed with its case.

Under Section 42.01(a)(8) of the Texas Penal Code, a person commits a Class B misdemeanor if he or she “displays a firearm or other deadly weapon in a public place in a manner calculated to alarm.” The criminal information charging the defendant in this case essentially followed the language of this statute; it alleged the defendant “did intentionally and knowingly in a manner calculated to alarm, display a firearm in a public place, to wit: the 300 block of Ferris Avenue.”

The crux of the defendant’s challenge was that given Texas is an “open-carry” state with respect to firearms, it was unclear what distinguished the conduct alleged in the information with what would otherwise be a “lawful open display of a firearm.” The prosecution maintained it did not need to provide such additional detail in the information.

A majority of the Court of Criminal Appeals held the law was not as vague as the defendant claimed. Writing for the Court, Judge Michael Keasler noted Section 42.01 has two key elements. The first is that the defendant’s display of the firearm creates “alarm.” Based on the dictionary definition of that term, Judge Keasler said in this context alarm means to “strike with fear,” “disturb,” or “excite.” But it was not necessary for someone to actually be alarmed, the judge noted, as the statute only requires proof the defendant acted in a manner “calculated” to alarm, which means “a manner that is objectively likely to frighten an ordinary, reasonable person.”

In a separate part of his opinion that did not receive the support of a majority of the Court, Judge Keasler said there was no tension in his view between the disorderly conduct statute and Texas’ open-carry laws. Judge Kevin Yeary said he otherwise agreed with Judge Keasler’s opinion, but felt the Court “was not called upon” to address a potential conflict. Judge Michelle Slaughter, in a dissenting opinion, noted the lack of a majority on this point “leaves open the strong possibility that those engaged in lawful open carry will be subject to prosecution under the disorderly-conduct statute.”

Speak with a League City or Galveston Misdemeanor Criminal Defense Lawyer Today

As you can see, even a simple misdemeanor case can raise complex legal issues that occasionally require the intervention one of the state’s highest courts. If you have been charged with any type of misdemeanor offense and need advice from an experienced Houston criminal defense attorney, contact the Law Offices of Tad Nelson & Associates today. Call (281) 280-0100 . 

 

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