# Ex Parte James Richard "Rick" Perry > Texas Court of Appeals, 3rd District (Austin) ยท June 30, 2015 URL: https://www.frixlaw.com/law-library/cases/4069079 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** June 30, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4069079 ## Opinion text 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) โ€“ 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' โ€“ 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 โ€“ 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 2 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4069079. Public record. Not legal advice.