Petition for Writ of Certiorari — Amerson v. Texas

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“Supreme Court, US

90-1532 ) ELILED

{OR 4 99

No.

tie fer tHe CLERK

In The "

Supreme Court of the United States

October Term, 1990

MICHAEL SCOTT AMERSON,

JAMES CLIFFORD HORAN,

CHARLES DALE REED,

Petitioners,

VS.

THE STATE OF TEXAS,

Respondent.

Petition For A Writ Of Certiorari

To The Court Of Appeals For The

Fourteenth Judicial District Of Texas

—

,™

PETITION FOR A WRIT OF CERTIORARI

RicHARD W. SCHMUDE

P.O. Box 674

Tomball, Texas 77377-0674

(713) 376-0277

Attorney of Record for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether Tex. Penal Code, § 42.03, which makes it a

Class B misdemeanor (punishable by confinement up to

180 days in jail and/or by fine up to $1,000.00) for a

person who, without legal privilege or authority, inten-

tionally, knowingly or recklessly (1) obstructs a highway,

street, sidewalk, etc. to which the public or a substantial

group of the public has access “or any other place used

for the passage of persons, vehicles or conveyances,

regardless of the means of creating the obstruction and

whether the obstruction arises from his acts alone or from

his acts and the acts of others”, or (2) disobeys a reason-

able request or order to move from a police officer, etc. to

prevent obstruction of a highway or any of the areas

mentioned in “(1)”, above, with “obstruct” defined as

meaning “to render impassable or to render passage

unreasonably inconvenient or hazardous”, is overbroad

facially, in violation of the liberties of speech, press and

association under the Ist Amendment to the U.S. Consti-

tution, as enjoined on the States under the Due Process

Clause of the 14th Amendment thereof;

2. Whether Tex. Penal Code, § 42.03, above, is uncon-

stitutionally vague, in violation of the Due Process Clause

of said 14th Amendment;

3. Whether Petitioners, one of whom is legally

blind, convicted of the disobedience offense under

§ 42.03, above, during an anti-abortion protest near an

abortion clinic in Houston, Texas, and free under appeal

bonds from jail sentences and fines, have standing to

challenge on appeal the constitutionality under the 8th

Amendment to the U.S. Constitution (cruel and unusual

QUESTIONS PRESENTED - Continued

punishments provision) of execution of their jail sen-

tences in the Harris County Jail, where the U.S. District

Court for the Southern District of Texas, Houston Divi-

sion, had ruled in different litigation after Petitioners

were convicted and sentenced that the conditions of con-

finement at Harris County Jail facilities, including the

Harris County Jail, were cruel and unusual in violation of

the 8th and 14th Amendments to the U.S. Constitution;

4. Whether the Court of Appeals erred when it

ruled that it “must reject” Petitioners’ “underlying chal-

lenge” to Roe v. Wade, 410 U.S. 113 (1973), where such

challenge underlaid Petitioners’ reliance on the defense

of third person under Texas statutory law; and

5. Whether Roe should be reconsidered and over-

ruled for jurisdictional, constitutional and other reasons.

ili

TABLE OF CONTENTS

Page

0 i

eg rr iii

pe 8 | vi

EE 1

Nee ei ca cee KN kam eencnas 1

CONSTITUTIONAL AND STATUTORY PROVI-

8 6 0 AS 1

6 gO OFS) 2

A. . Motions To Quash 5 and 6.................. 3

ee 5

ES Sh 6

1. The Clinic and Its Setting................ 6

ee 7

3. The Disobedience Conduct............... 7

4. The Justification Defenses................ 8

TCT EERE Eee 8

Do. The Bills of Exceptions............... 8

(1) Petitioner Amerson.............. 8

; ES 9

(3) Petitioner Reed.................. y

(4) State Witness Isabel Diez........ 10

i EN cca castes nnsccens 10

OU a yk kee aks eaves scans 13

I. SECTION 42.03 OF THE TEXAS PENAL CODE

{S OVERBROAD FACIALLY AND VOID FOR

VAGUENESS, IN VIOLATION OF THE U.S.

ie ek ku bese esaseacancees 13

II.

IT].

IV.

TABLE OF CONTENTS - Continued

Page

A. The SEOMOrY SOCIO «06... sci scccseaes 13

B. Section 42.03 Is Overbroad Facially...... 14

1. The Statutory Sweep................. 15

2. Effect on Constitutionally Protected

PTITUIIE os o's in cin cae esecaanneeanan’s 15

3. Not Subject To a Limiting Construc-

PERT ET CURT T TET O Te TEL 16

C. Section 42.03 Is Void for Vagueness ..... 16

1. Failure To Provide Fair Notice of What

Be Te ee 17

2. Failure to Provide Explicit Standards

Pe eee 18

3. Impingement on Ist Amendment Free-

| TTT OTT TCT Tee eee Tee 19

PETITIONERS HAD STANDING TO CHAL-

LENGE THE CONSTITUTIONALITY OF

THEIR JAIL SENTENCES FOR EXECUTION

IN THE HARRIS COUNTY JAIL ............ 19

THE COURT OF APPEALS ERRED WHEN IT

RULED THAT IT “MUST REJECT” PETI-

TIONERS’ UNDERLYING CHALLENGE TO

2 8 eer eee eee ee rT ee Tre 20

i, CI 5 4.5 cK nae wknckaenensecesess 20

i UE Ns i vv cS nt ta cebhaanueeceaevaan 22

ROE V. WADE SHOULD BE RECONSIDERED

bore ge Bt Se errr 23

A. Constitutional or Jurisdictional Grounds.... 23

1. Manufacture of the Liberty of Abor-

PETE REEVE TEE ee [Saab wneee es

TABLE OF CONTENTS —- Continued

Page

2. Failure To Apply Properly the Constitu-

tional Implied Rights Concept to “Lib-

erty” Under the 14th Amendment ..... 24

3. Failure To Apply Levy v. Louisiana,

391 U.S. 68 (1958), Concerning Human

Personhood Under the 14th Amend-

TRIE ow ence cede cnvansscbuscsacawess 25

4. Failure to Apply the Constitutional

Implied Rights Concept to 14th

Amendment Personhood for the

Peery ye yee rr eer e yr rT T re Tee 25

». No Representation................... 25

6. No Personal Jurisdiction ............. 26

7. Invidious Discriminations............ 26

8. Naked Deprivation of Rights......... 27

B. Other Grounds - Unintended Conse-

ND 548 ao xo 500 5snnunn basco aeseeneneen 28

1. Abortion on Demand ................ 28

2. Effect of Abortion and the Abortion

“Ethic” on Children Who “Survive”

PE en co Pccaadunecuste cee 29

3. internal Legal Chaos...............:. 29

Cee datas cc GSAS eRe ekasu bees cAcaeaweeees 30

TABLE OF AUTHORITIES

Page

I. Cases:

Alberti v. Klevenhagen, Civ. Action No. H-72-1094,

FINDINGS OF FACT AND CONCLUSIONS OF

LAW of September 25, 1989 (U.S. Dist. Ct., S.D.

ED we ca he hae kek Oak ee U be 4t6b46 6404S 248 20

ee a ee, ee Gr CO CUBES oo vi cccccccccscnces 20

Bowers v. Hardwick, 478 U.S. 186 (1986)........... 23, 24

Bradley v. Henry, 239 S.W. 2d 404 (Tex. Civ. App. -

en Ue OO Oe a. a kes cee CASS E ASO 28

Brantley v. Boone, 34 S.W. 2d 409 (Tex. Civ. App. -

er. Oi WD a eek Cason nS Gabbe MAS OR 28

Chrisfield v. Storr, 36 Md. 129 (Ct. App. Md., 1872) .... 28

City of Houston v. Hill, 482 U.S. 451 (1987) .......... 14

Coates v. Cincinnati, 402 U.S. 611 (1971) ...... 17, 18, 19

Cox v. Louisiana, 379 U.S. 536 (1965). ... 6.6... eee 19

Doe v. Bolton, 410 U.S. 179 (1973) ........ 0.00085. 28, 29

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)........ 22, 24

Ex parte Ormsby, 676 S.W. 2d 130 (Tex. Cr. Avp.,

Ds os. cu gw kk i M606 h 6004660668 EN EN EW KA 20

Flast v. Cohen, 392 U.S. 83 (1968). ...... 0... 00. eee eee 20

Grayned v. City of Rockford, 408 U.S. 104 (1972)...14, 17

Jefferson v. Griffin Spaulding Co. Hosp. Authority,

ere cue. Oe GOT BL. Ga., TORT)... ccs ccccncacccen 28

Johnson v. Zerbst, 304 U.S. 458 (1938)...........0...8. 22

vii

TABLE OF AUTHORITIES - Continued

Page

Levy v. Louisiana, 391 U.S. 68 (1968)................. 25

Marbury v. Madison, 5 U.S. 137 (1803) ............... 27

McArthur v. Scott, 113 U.S. 340 (1885)............... 26

Medlock v. Brown, 136 S.E. 551 (S.C. Ga., 1927) ...... 28

Munn v. Illinois, 94 U.S. 113 (1887).................. 27

Pennoyer v. Neff, 95 U.S. 714 (1878). .............088. 26

Raleigh Fitkin-Paul Morgan Mem. Hosp. v. Anderson,

201 A. 2d 537 (S.C.N.J., 1964), cert. denied, 337

kM 92 | rr reer ere re rien free ty 28

Roe v. Wade, 410 US. 113 (19735) .... 0... cece eens passim

Concurring Opinion, Burger, C.J., 410 U.S. 208 .... 29

Showery v. State, 690 S.W. 2d 689 (Tex. App. - El

FORO, THES, POC. GUS. TOG. COED . 0. s cc ccececsccnecces 25

Spence v. Washington, 418 U.S. 405 (1974)............ 14

Stills v. Gratton, 127 Cal. Reptr. 652 (Cal. App., Ist

ee | EE Perr e Tere rey Tere rere Tey Tey 29

swat ©. Tysem, 16 Pet. 1 CIBER) . 0... ccc cs csc seseees 22

Texas v. Johnson, 109 Sup. Ct. 2533 (1989). ........... 14

Tinker v. Des Moines 1.C.S.D., 393 U.S. 503 (1969) .... 14

Thornburgh v. American College of Obstetricians and

Gynecologists, 476 U.S. 747, 790-791 (1986)

(White, J., joined by Rehnquist, J.. dissenting). .... 24

Windsor v. McVeigh, 93 U.S. 274 (1876) .............. 22

viii

TABLE OF AUTHORITIES - Continued

Page

Il. U.S. Constitution AND Statutory Law:

U.S. Constitution:

8 rye ere eee ere ee ee err ree Peet 23

Wee SIS na cc cectacnaccacecencen 1, 3, 4, 14, 19

5th Amendment, Due Process Clause....... 25, 26, 27

8th Amendment, Cruel and Unusual Punish-

a eee reer TT Ter Te Ter Tere 11, 20

RPS TTT TT TPE Te TET Terr eer ee 24

FO EFT TEST TTT TTT TTT eT eee 24

14th Amendment:

SINUS sacnsbedeesccccnceeedseckanssas 24, 25, 27

ee MERTTTETESTTETITUTET TEE 27

SP PHOGIND COR w exc n ccd veccecsnsccszss passim

ES TUORRCUIO CORURD, «no oc cccccscccsecssccses 27

U.S. Statutory Law:

i ae EE cad ks savas bak ae keen ben knkan cia 1

III. Texas ConstTiITuTION AND Statutory Law:

Texas Constitution:

Ss ey TE 5 nbs hoes bREGKOHEARN RENNES AOR 27

Texas Statutory Law:

Texas Abortion Facility Reporting and Licensing

Act, Tex. Health & Safety Code, §§ 245.001 et seq.,

formerly Vernon's Tex. Civ. Stats. Ann. art.

Re eee de een ele Lee 6; see 3

TABLE OF AUTHORITIES - Continued

Page

Texas Family Code:

ST wins 4nedG sk ele ee eheeasan eens ssekeee 27

pee rr eres ree, 27

Texas Penal Code: .

Be reer ee 27

eC Ceheaae es awenesk cia aban an de eee 21, 22, 23

i NEED 6 4.4645 be ab achinheeuncansnceeeeasuaas 16

Dy Gee IDs 655 6 cen caccccccccusseses passim

ls Cee SS So te eh Cos Se 17, 19

OU eu oe ee rer

Oe al i eh ee Ta Oe te 17

MT hn eeKCnenue chee kcheekaecar cee eeaeee ee 16

Vernon's Annotated Texas Penal Code (1925) arts.

1191-1194, 1196 (former Texas Penal Code)........ 21

IV. Orntier:

ANNOTATION, “RIGHT TO MAINTAIN

ACTION OR TO RECOVER DAMAGES FOR

DEATH OF UNBORN CHILD”, 84 A.L.R. 3rd

411, 422-423, 432-446 (1978) and 1989 Supp. at

Se Gs oe ode heckebic ats cii nein eee tise waves 29

PRACTICE COMMENTARY, Ist para., following

Section 42.03 of Vernon's Texas Penal Cede......... 16

Prosser, Handbook of the Law of Torts (4th ed., 1971),

BD Bey BU Bo hve cccnesiecscesccunseesedecews 28

OPINION BELOW

The Opinion of the Court of Appeals (Pet. App. 1-14)

is reported at 794 S.W.2d 806.

JURISDICTION

The Judgments of the Court of Appeals were ren-

dered on June 28, 1990 (Pet. App. 15-17). The Court of

Appeals overruled Petitioners’ timely-filed Joint Motion

for Rehearing on September 6, 1990 (Pet. App. 18-23). On

January 10, 1991, a Joint Petition for Discretionary

Review, filed on behalf of Petitioners, was refused as to

Petitioner Reed and, on January 16, 1991, was refused as

to Petitioners Amerson and Horan (Pet. App. 24-25).

Judge Maloney of the Court of Criminal Appeals, how-

ever, would grant the Joint Petition for Discretionary

Review for each Petitioner on Question Presented for

Review No. 1 (ibid.), i.e., on the U.S. and Texas constitu-

tional challenge to Tex. Penal Code, § 42.03, on grounds of

facial overbreadth. On January 24, 1991, the Court of

Criminal Appeals rejected Petitioners’ Joint Motion for

Rehearing on behalf of each Petitioner “for failure to

comply with Rule 230(b), T.R.A.P.” (Pet. App. 25-27). The

jurisdiction of this Court is invoked under 28 U.S.C.

1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. CONSTITUTION:

First Amendment:

Congress shall make no law * * * abridging

the freedom of speech, or of the press * * * .

Fourteenth Amendment:

* * * [NJor shall any State deprive any

person of life, liberty, or property, without due

process of law ** *.

TEXAS STATUTORY LAW:

The Texas Penal Code provides, in pertinent part:

§ 42.03. Obstructing Highway or Other Passageway

(a) A person commits an offense if, with-

out legal privilege or authority, he intentionally,

knowingly, or recklessly:

(1) obstructs a highway, street, side-

walk, railway, waterway, elevator, aisle,

hallway, entrance, or exit to which the pub-

lic or a substantial group of the public has

access, or any other place used for the pas-

sage of persons, vehicles, or conveyances,

regardless of the means of creating the

obstruction and whether the obstruction

arises from his acts alone or from his acts

and the acts of others; or

(2) disobeys a reasonable request or

order to move issued by a person the actor

knows to be or is informed is a peace offi-

cer, a fireman, or a person with authority to

control the use of the premises:

(A) to prevent obstruction of a

highway or any of those areas men-

tioned in Subdivision (1) of this subsec-

tion; or

(B) to maintain public safety by

dispersing those gathered in dangerous

proximaty to a fire, riot, or other haz-

ard.

(b) For purposes of this section, “obstruct”

means to render impassable or to render pas-

sage unreasonably inconvenient or hazardous.

B misdemeanor.

STATEMENT OF THE CASE

Following a joint trial by jury in County Criminal

Court at Law No. 5 of Harris County, Texas (“Trial

Court”), Petitioners were found guilty of disobeying a

reasonable request or order to move from one J.C. Linney,

a person they knew or were informed to be a peace

officer, etc., in order to prevent the obstruction of a side-

walk, entrance or exit to which the public or a substantial

group of the public had access. The evidence showed, in

part, that the alleged conduct occurred in the vicinity of

the Houston Women’s Clinic (“Clinic”), an abortion clinic

in Houston, Harris County, Texas, which, at that time,

was not licensed (under the Texas Abortion Facility

Reporting and Licensing Act) (II S.F. 11, 34, 35, 61).1

Petitioners were sentenced to jail terms aiid fines (180

days in jail and $1,000.00 fine for each of Petitioners

Amerson and Horan; 90 days in jail and a $1,000.00 fine

for Petitioner Reed), none of which was probated.? These

sentences were in accord with jury assessments made

after a punishment phase proceeding.

The pertinent facts are these:

A. Motions To Quash 5 and 6. Before trial, a separate

DEFENDANT’S MOTION TO QUASH INFORMATION

NO. 5 and a separate DEFENDANT’S MOTION TO

QUASH INFORMATION NO. 6 were filed on behalf of

each Petitioner (Tr. Amerson 16-22; 1st Sup. Tr. Horan

11-17; Tr. Reed 15-21). Motions To Quash 5 alleged, in

part, that the Informations were defective in law because

Tex. Penal Code, § 42.03, on which they were based, was

void facially for vagueness, in violation of the liberty

reach of the Due Process Clause of the 14th Amendment

to the U.S. Constitution, the rights of free speech, free

press and association under the Ist Amendment to the

U.S. Constitution and under certain provisions of the

Texas Constitution not here pertinent. Paragraphs III and

IV of each such Motion alleged (e.g., Tr. Amerson 21):

1 “Tr.” refers to the Clerk’s Transcript of documentary

materials. “S.F.” refers to the Court Reporter’s Statement of

Facts or transcription of the proceedings in the Trial Court.

2 Only Petitioner Reed applied for probation. The Jury did

not recommend probation for him.

ITI.

Tex. Penal Code, § 42.03, (1) operates to

inhibit the exercise of such free speech, free

press and associational rights, (2) fails to set

forth to a person of ordinary intelligence a clear

standard of what is prohibited and (3) fails to

provide explicit standards for enforcement of

such law.

IV.

Section 42.03 does not require an obstruc-

tion of passage or movement of any person,

vehicle or other conveyance; hence, violation of

the obstruction provision occurs where, for

example, one stands or reclines in the middle of

a narrow sidewalk in an intentional, knowing or

reckless manner. The “unreasonably inconve-

nient” part of the definition of “obstruct” in said

Section is vague and subjective; hence, a law

enforcement official has impermissibly broad

latitude in defining an obstruction for purposes

of the Section. The “reasonable request or order

to move” aspect of the disobedience violation is

vague and subjective, particularly when consid-

ered in the context of the impermissible latitute

furnished in defining an obstruction and of the

nonrequirement of an actual obstruction of pas-

sage or movement.

Motions To Quash 6 alleged, in part, that the Infor-

mations were defective in law because Tex. penal Code,

§ 42.03, on which they were based, was overbroad

facially, in violation cf the liberty reach of the Due Pro-

cess Clause of the 14th Amendment to the U.S. Constitu-

tion, the rights of free speech, free press and association

under the 1st Amendment to the U.S. Constitution and of

certain provisions of the Texas Constitution not here per-

tinent. Each Motion 6 provided, in pertinent part (e.g., Tr.

Amerson 17-18):

Section 42.03 reaches within its prohibitive

terms, or permits the reaching within such

terms, of such speech on a public sidewalk or

public street right-of-way. Section 42.03 also

chills the peaceful exercise of such rights. Public

streets and sidewalks are traditional public fora

for the exercise of expression rights. While the

exercise of such rights is subject to certain gov-

ernmental control, they may not be prohibited

under the sweep of a penal law.

VI.

Peaceful exercises of U.S. Constitutional

rights of free speech, free press and association

and of Texas Constitutional rights of free speech

and free press can and do take place on or in the

vicinity of the areas covered by said Section

42.03, including “a highway, street, side-

walk * ** entrance, or exit to which the public or

a substantial group of the public has

access * * * ” [Section 42.03(a)(1)], and such

exercises may entail an obstruction within one

meaning of the term “obstruct”, e.g., rendition

of passage “unreasonably inconvenient” [Sec-

tion 42.03(b)]. Likewise, the making unlawful a

disobedience of a “reasonable request or order

to move”, etc. in order “to prevent obstruction

of a highway” [Section 42.03(a)(2)(A)] implicates

the peaceful exercise of such rights. Said Section

does not exclude the exercises of such rights

and, instead, sweeps within its ambit conduct

which is protected constitutionally.

B. Pretrial Proceedings. A pretrial hearing was con-

ducted on various defense motions, including Motions To

Quash 5 and 6, above. Testimony from Petitioner Reed

was presented on the latter Motions. He testified, in part,

that on October 29, 1988, he and about 100 others “were

protesting the killing of unborn babies” at the Clinic; that

he was standing on a sidewalk and driveway near the

Clinic holding a banner which said something like “Stop

Abortion”; that the sidewalk ran parallel to San facinto

Street and met the driveway; that the sidewalk and San

Jacinto Street were public property; that he and four

others placed 3 or 4 barrels partially filled with cement

“{ajlong the sidewalk, in between the driveway”; that the

group, of which he was part, stood, sang, prayed and

held banners or signs which carried words or messages;

that the group was peaceful and orderly; that the protest

lasted about 1 or 1!/2 hours; and that 21 persons, includ-

ing himself, were arrested that day (I S.F. 16-21).

After argument, the Trial Court denied Motions To

Quash 5 and 6. Defense Counsel objected on behalf cf all

of the defendants he was representing (I S.F. 30). (See

Footnote 6, infra.)

C. The Trial. 1. The Clinic and Its Setting. The Clinic is

a “pregnancy termination” clinic located in Houston,

Texas, and has been doing abortions there since 1976 (II

S.F. 9-10). It has two entrances, one from a driveway off

San Jacinto Street and another off Arbor Street. The Arbor

Street entrance was usualiy locked, and was locked on

October 29, 1988 (II S.F. 17). A sidewalk runs parallel to

San Jacinto Street in front of the Clinic and extends into

an area covered by such driveway. San Jacinto and Arbor

Streets, the sidewalk along San Jacinto and the area

between the sidewalk and San Jacinto Street constitute

public property (II S.F. 49; II S.F. 134-135).

The Clinic was not licensed by the Texas Department

of Health on October 29, 1988, the date of the protest

activities (II S.F. 11, 34).3 The Clinic was licensed by that

3 See The Texas Abortion Facility Reporting and Licensing

Act, effective September 1, 1985, Tex. Health & Safety Code,

§§ 245.001 et seq., formerly Vernon's Tex. Civ. Stats. Ann. art.

4512.8 (“Act”).

| —

Department sometime in 1989 and before the trial (II S.F.

10, 61).4

2. The Protest Activities. On October 29, 1988, a

number of persons (estimates varied), including Peti-

tioners, participated in a protest activity on public prop-

ert’ outside of the Clinic (II S.F. 49-50; III S.F. 134-135).

Three 55-gallon drum barrels partially filled with con-

crete were placed on the sidewalk and driveway entrance

off San Jacinto Street. This entrance was about 24 feet

wide (III S.F. 129). Some protestors were locked to the

barrels, including Horan by the neck and Amerson by his

ankles (II S.F. 26-27, 51, 80, 81; III S.F. 109-110, 120-121,

185, 186, 204). Some protestors were sitting or standing

across such entrance, while others were sitting shoulder-

to-shoulder across the entrance to the Clinic from Arbor

Street (III S.F. 109-110). The sidewalk was blocked com-

pletely, making it extremely difficult for people to get in,

and vehicles could not enter (III S.F. 110).

The protestors engaged in speech on public property

(III S.F. 134, 135-136). They shouted at patients and sang

(II S.F. 48). Some held banners concerning abortion, and

some prayed (II S.F. 48; III S.F 120-121, 185-186). Alice

Harper testified that she was sidewalk counseling (III S.F.

223). The group was peaceful (III S.F. 135, 185).

Patients were not restrained physically from going

up to the Clinic (II S.F. 42-43), and people went in and out

of the Clinic (III S.F. 188-206). Escorts were used to bring

patients to the ~linic (II S.F. 43). According to Officer R.G.

Wells of the Houston Police Department, neither he nor

Houston Police Officer J.C. Linney (who did not testify)

had any difficulty in moving about (III S.F. 149-150).

3. The Disobedience Conduct. Petitioners and others

were in the sidewalk or driveway area along San Jacinto

Street (III S.F. 118, 120-121). Linney informed them of the

4 The trial commenced on August 30, 1989, and concluded,

with sentencing, on September 1, 1989. The pretrial hearing

here involved was conducted on May 23, 1989.

violation of law and gave them five minutes to remove

themselves voluntarily (III S.F. 116, 118-119, 168). Individ-

ual warnings to move were given aiso by Linney. Some

moved and were not arrested, while others refused and

were arrested.

Amerson, who was attached to one of the barrels by

his ankles, was requested to leave, as was Horan, who

was attached by the neck to another barrel (III S.F. 116,

118, 119, 121). Amerson made no effort to move, and

Horan did not ask for more time in order to move (Ili S.F.

122-123). Neither asked for a key or made any effort to

unlock himself (III S.F. 122). They were arrested after they

were freed from the barrels. Reed, who was moving back

and forth in the driveway area, refused to move and was

arrested (III S.F. 120-121, 122, 123, 127).

4. The Justification Defenses. a. The Ruling. After the

State rested its case-in-chief, Defense Counsel requested

the Trial Court, outside the presence of the Jury, to rule

on the admissibility of evidence on the defense of neces-

sity and the defense of third person (III S.F. 176). The

Trial Court said that it “would not have those defenses in

this case”, and that, if Counsel wished “to make a record”

(of them), he “may do so” (III S.F. 177). Counsel said that

they should be able to go into such defenses because

there was uncontradicted evidence before the Court to

the effect that the Clinic was not licensed at the time of

the protest activity (III S.F. 177-178). The Court denied the

request without even hearing from the State’s Attorney

(III S.F. 178). Counsel objected to such ruling.

b. The Bills of Exceptions. Subsequently, Defense

Counsel made four bills of exceptions (on such defenses)

outside the presence of the Jury, one from each Petitioner

and one from the Assistant Administrator of the Clinic:

(1). Petitioner Amerson. Amerson testified or admit-

ted, in part, that, on October 29, 1988, he was at the Clinic

to protest abortion, and that he locked up to one of the

barrels there (III S.F. 242). He locked up because he hoped

to “let women talk to the sidewalk counselors that were

there so that they may change their mind and to keep

their child” (III S.F. 242). This would result because “it

would slow it down to where we could talk to them” (III

S.F. 242). Sidewalk counselors were there that day (III S.F.

242). By locking to the barrel, he “would be standing

there in the gap for the baby. And he would have a voice”

(III S.F. 243).

He thought that abortion was “the greatest evil that

there is”, and that America was suffering because of it (III

S.F. 244). In his opinion, his conduct addressed that evil.

He felt that it was reasonably necessary to do what he did

in order to address it; and, according to “them” (a Crisis

Pregnancy Center), lives were saved as a result of the

protest activity (III S.F. 243-244).

(2). Petitioner Horan. Horan testified or admitted, in

part, that, on October 29, 1988, he was at the Clinic, lying

on a sidewalk, and was attached to a barrel (III S.F. 232).

He had two purposes in being attached, namely, to make

a media event to show that the Clinic was an abortion

clinic, and “to slow things down so that sidewalk coun-

selors could have a chance to talk to the girls that were

coming in to have their babies murdered” (III S.F. 233,

235-236). He felt that his conduct aided the two goals (III

S.F. 236).

He viewed abortion as murder, and his conduct that

day was directed toward an alleviation of that (III S.F.

237). Lives were saved that day (III S.F. 236). He felt that

the only way he could help the abortion situation was by

doing what he did; that that had an impact because he

“gave the sidewalk counselors a chance to talk to the girls

that were coming up to have their babies murdered”; that

he considered abortion to be a greater problem than the

problem with which he was confronted; and that he con-

sidered that his conduct was accomplishing a greater

good (Ill $.F. 237-238).

(3). Petitioner Reed. Reed testified or admitted, in

part, that, on October 29, 1988, he was at the Clinic where

he protested against abortion (III S.F. 247). he did this by

standing on the public sidewalk in front of the Clinic

(Ibid.). He hoped to accomplish “[sJeveral things that

were already spoken of. Mainly, to keep babies from

being killed that day” (/bid.).

He viewed abortion as “[tlaking an innocent life” (III

S.F. 248). To his knowledge, abortions were conducted at

the Clinic that day (/bid.). He knew that a lot less women

showed up for abortions that day; that it was apparent to

him that “women had a chance to change their minds and

not have an abortion”; that he was.arrested that day; that

the media attention from the arrest “could have resulted

in saving some lives. But, as far as there that morning, we

saved more lives than if I hadn’t been [there]”; and that

he felt that it was reasonably necessary to do what he did

in order to save lives (III S.F. 248-249).

(4). State Witness Isabel Diez. Isabel Diez, the Assis-

tant Administrator of the Clinic, testified or admitted, in

part, that, on October 29, 1988, about 15 abortions were

performed at the Clinic (III S.F. 254). This was not typical

for a Saturday (III S.F. 254-255). Roughly 40 abortions

were scheduled that day. The droppage in the number of

abortions that day was the result of the protest (III S.F.

255). Most of the women rescheduled their abortions, but

2 or 3 did not (Ibid.).>

D. Federal Questions. The federal issues in Questions

Presented 1 and 2, above, were raised in Petitioners’

Motions To Quash 6 and 5, respectively, which were

5 Defense Counsel tendered the evidence on the Bills of

Amerson, Horan and Reed and requested the Trial Court to

permit the Jury to hear same (III S.F. 239, 245, 250). These

requests were denied. Counsel did not tender the evidence on

the Diez Bill or request the Court to permit the Jury to hear it.

This oversight was not critical since the Court had told the Jury

previously, when excusing them for the evening, “that is all the

testimony that you are going to hear in this case” (III S.F. 251).

At that time, the State had rested and closed and the Defense

did so as well subject only to Mrs. Diez’s Bill (/bid.).

denied by the Trial Court. These rulings were raised on

appeal as error by Amerson and Reed and as fundamen

tal error by Horan.® The Court of Appeals overruled such

points of error (Pet. App. 2-5) and overruled Petitioners’

Join Motion for Rehearing which re-raised them and cer-

tain subsidiary or related points.” The Court of Criminal

Appeals refused Petitioners’ Joint Petition for Discretion-

ary Review which included such points and subsidiary or

related points (postured as questions).

The federal issue presented in Question 3, above,

developed not long after conviction and sentencing when

the U.S. District Court for the Southern District of Texas,

in different litigation, ruled that the conditions of con-

finement in Harris County jail facilities, including the

Harris County Jail (where Petitioners were to serve their

jail sentences and to work off any fine(s) not paid), were

unconstitutional under the 8th and 14th Amendments to

the U.S. Constitution. Petitioners, freed on appeal bonds,

6 Since it was not clear that the Trial Court’s rulings

applied to Petitioner Horan, his relevant appellate points of

error were raised as fundamental error. This uncertainty stems

from the fact that Petitioners’ Attorney herein, who was han-

dling the pretrial proceeding for his Clients at that time (Amer-

son and Reed) as well as otners, forgot to tell the Court or the

court reporter that he was representing Horan’s Attorney or

Horan. He was representing his Clients at that time and var-

ious other defense attorneys and their clients for purposes of

the hearing. See 1 S.F. 2, 3, 14-15, 30. Subsequently, Petitioners’

Attorney represented Horan at the trial and throughout the

appellate process. Despite such uncertainty, it is clear that the

trial proceeded as though Horan’s Motions to Quash 5 and 6

were denied.

? These subsidiary or related points were that the Court of

Appeals erred when it failed to apply the standard of whether

or not § 42.03 proscribes a substantial amount of constitu-

tionally protected activity, and when it failed to determine

whether or not § 42.03 provides explicit standards for its

enforcement.

raised on appeal the unconstitutionality of their proposed

confinement in such Jail. While the Court of Appeals said

that “punishment is not unconstitutionally cruel or

unusual” where, as here, it was within the statutory

range of punishment, it did not reach the merits of the

errors claimed by Petitioners (Pet. App. 12). Instead, it

said that Petitioners, who were currently on bond pend-

ing their appeals, “lack[ed] standing to complain about

the conditions in the Harris County Jail until they are in

actual custody and can allege an ‘injury in fact’. [citing a

Texas case]” (Pet. App. 12). Petitioners challenged this

ruling in their Joint Motion for Rehearing. The Court of

Appeals overruled such Motion, and the Court of Crimi-

nal Appeals refused Petitioners’ Joint Petition for Discre-

tionary Review which raised this point again.

The federal issues in Questions Presented 4, above,

arose at the appellate stage, with the Opinion of the

Court of Appeals, but grew out of the Trial Court’s

refusal to allow the defense of third person and its refusal

to admit, or forclosure of, testimony developed in the

Bills, above. In their Joint Motion for Rehearing, Peti-

tioners challenged the ruling by the Court of Appeals that

it “must reject” Petitioners’ underlying challenge to Roe v.

Wade, 410 U.S. 113 (1973) (Pet. App. 7). The Court of

Appeals overruled such Motion, and the Court of Crimi-

nal Appeals refused Petitioners’ Joint Petition for Discre-

tionary Review which raised such challenge again.

The federal issues in Question Presented 5, above, are

strictly for consideration and resolution by this Court.

However, Petitioners raised on appeal, in their Joint

Motion for Rehearing and in their Joint Petition for Dis-

cretionary Review, that Roe was void as violative of the

U.S. Constitution and fundamental principles of personal

jurisdiction. This was a collateral attack on Roe as part of

Petitioners’ claim that the defense of third person should

have been allowed in the case, i.e., that the unlawful force

of such defense was met by the abortion conduct

involved, that such conduct was violative of the Texas

anti-abortion law which purportedly was held uncon-

stitutional in Roe, and that such law is still in effect

bec: use Roe itself was void as violative of the U.S. Consti-

tution and fundamental principles of personal jurisdic-

tion.

ARGUMENT

SECTION 42.03 OF THE TEXAS PENAL CODE IS

QVERBROAD FACIALLY AND VOID FOR VAGUE-

NESS, IN VIOLATION OF THE U.S. CONSTITUTION

A. The Statutory Section. The Texas Penal Code pro-

vides, in pertinent part

§ 42.03. Obstructing Highway or Other Passageway

(a) A person commits an offense if, with-

out legal privilege or authority, he intentionally,

knowingly, or recklessly:

(1) obstructs a highway, street, side-

walk, railway, waterway, elevator, aisle,

hallway, entrance, or exit to which the pub-

lic or a substantial group of the public has

access, or any other pet e used for the pas-

sage of persons, vehicles, or conveyances,

regardless of the means of creating the

obstruction and whether the obstruction

arises from his acts alone or from his acts

and the acts of others; or

(2) disobeys a reasonable request or

order to move issued by a person the actor

knows to be or is informed is a peace offi-

cer, a tireman, or a person with authority to

control the use of the premises:

(A) to prevent obstruction of a

highway or any of those areas men-

tioned in Subdivision (1) of this subsec-

tion; or

(B) to maintain public safety by

dispersing those gathered in dangerous

proximity to a fire, riot, or other hazard.

(b) For purposes of this section, obstruct”

means to render impassable or to render pas-

sage unreasonably inconvenient or hazardous.

B misdemeanor.

B. Section 42.03 Is Overbroad Facially. The Court of

Appeals erred when it upheld the constitutionality of

Section 42.03 against Petitioners’ U.S. (and Texas) consti-

tutional challenges for facial overbreadth. The Court said,

in part, that “[t]he statute complained of regulates con-

duct, and not speech, and is not constitutionally over-

broad. Smith v. State, 772 S.W. 2d 946, 949 (Tex. App. -

Dallas 1989, pet.ref’d.)” (Pet. App. 4).

What the Court missed, however, is that conduct and

Ist Amendment activities of speech, press and association

go together; that conduct can constitute a form of spec ech

(e.g., wearing an arm band) [Tinker v. Des Moines I.C.S.D.,

393 U.S. 503, 514 (1969)] or be intertwined inextricably

with speech (e.g., picketing) [Grayned v. City of Rockford,

408 U.S. 104, 118-119 (1972)];§ and that a penal enactment

may be invalid facially if it proscribes a substantial

amount of constitutionally protected conduct [C ity of

Houston v. Hill, 482 U.S. 451, 458 (1987)]. As shown below,

Section 42.03 is overbroad facially because it sweeps

vithin its ambit substantial constitutionally protected

activities of speech, press and association in public fora,

in violation of the Ist amendment to the U.S. Constitution

(rights of speech, press and association), as enjoined on

the states under the Due Process Clause of the 14th

Amendment thereof.

Amerson’s and Horan’s attachment to the barrels consti-

tuted symbolic speech of a dramatic nature. See Texas v. John

n, 109 Sup. Ct. 2533, 2540, 2547 (1989); Spence v. Washington,

418 U.S. 405, 409-411 (1974). These activities were “ ‘suffi

ciently imbued with elements of communication.’ Spence, 418

U.S., at 409, 94 S. Ct., at 2730, to implicate the First Amend-

ment.” Texas v. Johnson, supra, 109 Sup. Ct. at 2540

1. The Statutory Sweep. The obstruction and disobe-

dience offenses are grounded in (1) ten types of places

(e.g., streets, sidewalks, entrances, exits) “to which the

public or a substantial group of the public has access”

and (2) a catch-all category of “any other place used for

the passage of persons, vehicles or conveyances” but

without the requirement of access by the public or a sub-

stantial group of the public. These places include public

as well as private property.

This broad sweep is compounded by the use of broad

terms and by the absence of any guidance as to how long

an obstruction must exist for problem purposes. Thus,

“obstruct” means, in part, to render passage “unreasona-

bly inconvenient”; the actor’s conduct must be “without

legal privilege or authority”; and, in the area of the

disobedience offense, the disobedience must be of a “rea-

sonable request or order to move to prevent an obstruc-

tion.” As for the length of an obstruction, one of ten

seconds may be as culpable as one lasting an hour or

longer.

2. Effect on Constitutionally Protected Activities. On its

face, § 42.03 sweeps within its prohibitory ambit substan-

tial constitutionally protected activities of speech, press

and association in public fora: The peaceful congregation

of persons on a public sidewalk or within the nonstreet

portion of a public street right-of-way is a constitu-

tionally protected right of association, yet those who do

so would be subject to arrest under § 42.03 if, for exam-

ple, a peace officer were to consider the gathering as an

obstruction to passage within the meaning of such Sec-

tion. Similarly, peaceful picketing or demonstrating in

such an area, such as in the vicinity of an abortion clinic,

is a constitutionally protected right of speech, yet those

who do so would be subject to arrest under like circum-

stances. Further, the peaceful distribution of literature by

one or more persons in such a place, which may cause

some pedestrian congestion, is a constitutionally pro-

tected right of press, yet such person(s) would be subject

to arrest under like circumstances.

In like vein, those who engaged in such activities

would be subject to arrest if they disobeyed a “reason-

able” order or request to move from a peace Officer, etc.,

where such officer believed it necessary to issue such an

order or request to prevent an “obstruction” to passage

on a sidewalk, etc., i.e., that passage would be rendered

“unreasonably inconvenient” or “impassable” or “haz-

ardous.”

3. Not Subject to a Limiting Construction. Section

42.03 cannot be saved constitutionally by a limiting con-

struction because the Section has and was intended to

have a broad and pervasive reach. See PRACTICE COM-

MENTARY, Ist para., following Section 42.03 of Vernon's

Texas Penal Code. The places covered and the meaning of

“obstruct” fulfill this goal and do not lend themselves to

a limiting construction. The catch-all places covered can-

not be limited to the ten places specified because the

access standard of such places, above, does not apply to

the catch-all places. The terminology, “unreasonably

inconvenient” and “reasonable request or order to move”,

were intended to have broad and/or subjective reaches

and do not lend themselves to limiting constructions.

While Tex. Penal Code, § 42.04, provides a defense to an

alleged violation of § 42.03 [as well as to § 42.01(a)(5) of

the Texas Penal Code (making unreasonable noise)] where

the conduct consists of speech or other communication,

etc., the problem is that one who is exercising his legiti-

mate Ist amendment rights of speech, press and/or asso-

ciation should not be subjected to criminal charge. Such

activities are guaranteed by and licensed under supreme

law. Thev should be excluded from § 42.03.

C. Section 42.03 Is Void for Vagueness. The Court of

Appeals erred in upholding the constitutionality of

§ 42.03 against the challenges for vagueness. Insofar as

the U.S. Constitution is concerned, § 42.03 is unconstitu-

tionally vague, in violation of the liberty reach of the Due

Process Clause of the 14th Amendment thereof, because

e it does not give fair notice of what is pro-

scribed;

e it does not furnish “explicit standards” for

enforcement thereof by law enforcement per-

sonnel, courts or juries; and

e it impinges impermissibly upon legitimate

1st Amendment activities of speech, press

and association.

See Grayned v. City of Rockford, supra, 408 U.S. at 108-109.

The Court of Appeals considered only the question of

“fair notice” (Pet. App. 4).?

1. Failure To Provide Fair Notice of What Is Prohibited.

Section 42.03 fails to provide to a person of ordinary

intelligence a reasonable opportunity to know what is

prohibited thereby. Several difficulties come to the fore:

First, an obstruction of actual passage is not required for

violation of the Section. “Obstruct”, for purposes of the

Section, “means to render impassable or to render passage

‘unreasonably inconvenient or hazardous” [Section

42.03(b)]. (Emphasis added.) As a result, one who stands

or reclines in the middle of a narrow sidewalk in an

intentional, knowing or reckless manner, for example,

could be arrested for obstructing a sidewalk under Sec-

tion 42.03(a)(1) even though no one, in fact, was

obstructed by his conduct. By the same token, and while

not presented or argued to the Trial Court, that same

person could be arrested under Section 42.03(a)(2)(A) if

he disobeyed a reasonable request or order to move “to

9 Since certain 1st Amendment rights of speech and asso-

ciation are involved in this case, § 42.03 should be examined

facially and as applicable to others not before the Court. See

Grayned v. City of Rockford, supra, 408 U.S. 109-114; Coates v.

Cincinnati, 402 U.S. 611, 614-616 (1971).

prevent” an obstruction there even though no one, in fact,

was obstructed by his conduct.

Second, the “unreasonably inconvenient” aspect of

the definition of “obstruct” is vague and subjective. This

may mean one thing to one peace officer, etc., something

else to another, etc., and something different as to still

another, etc. The Section fails to define the term or pro-

vide an objective standard for uniform application of it.

As a result, a person of ordinary intelligence would have

to guess or ponder its meaning and application. See

Coates, supra, 402 U.S. at 414.

Finally, the “reasonable request or order to move to

prevent an obstruction” portion of the disobedience

offense is vague and subjective, particularly when this is

evaluated in the context of the impermissible latitude

furnished in defining obstruction and of the nonrequirement

of an actual obstruction of passage. As shown above, the

request or order to move is issued in order “to prevent”

an obstruction. However, “obstruct” has a vague and

subjective reach (with the “unreasonably inconvenient”

aspect of same), and § 42.03 does not require that passage

be obstructed in point of fact. That being the case, the

reasonableness of the request or order to move has a

subjective reach at variance with the requirement of fair

notice.

The brush-aside of Petitioners’ challenges by the

Court of Appeals (Pet. App. 4-5) is erroneous. The terms

at issue do not have common meanings. As shown above,

they are vague and subjective. As for failure to cite

authority to the Court of Appeals for the proposition that

the words are vague, the short answer is that there

should be no U.S. constitutional requirement to cite such

authority where the terms on their very face are vague and

subjective.

2. Failure To Provide Explicit Standards for Enforce-

ment. The “unreasonably inconvenient” aspect of the defi-

nition of “obstruct” is vague and subjective, thereby

giving a law enforcement official, for example, imper-

missibly broad latitude in defining what constitutes an

obstruction of a statutorily covered place. See Coates v.

Cincinnati, supra, 404 U.S. at 414-416; Cox v. Louisiana, 379

U.S. 536, 551 (1965). This, of course, is critical to the

offense of obstruction under Section 42.03(a)(1) and the

offense of disobedience of a reasonable request or order

to move from a peace officer, etc. “to prevent” such an

obstruction under Section 42.03(a)(2)(A). In order to pre-

vent arbitrary or discriminatory application of the Sec-

tion, the term, “unreasonably inconvenient”, should be

defined in a clearcut fashion for ready and evenhanded

application, or the Section must set forth a clear standard

for objective application. The Section fails on both scores.

3. Impingement Upon 1st Amendment Freedoms. As

shown above, pp. 15-16, § 42.03 sweeps within its penal

reach substantial ist Amendment activities. This is com-

pounded by the vague aspects of § 42.03 presented imme-

diately above. As a result, § 42.03 not only suffers from

overbreadth and vagueness but operates to abridge, or to

chill, the exercise of legitimate Ist Amendment activities

of speech, press and association in public fora.

Il.

PETITIONERS HAD STANDING TO CHALLENGE

THE CONSTITUTIONALITY OF THEIR JAIL SEN-

TENCES FOR EXECUTION IN THE HARRIS COUNTY

JAIL

The Court of Appeals erred when it ruled that Peti-

tioners, who were free on appeal bonds, lacked standing

to complain about the conditions at the Harris County Jail

“until they are in actual custody and can allege an ‘injury

in fact’. Wilson v. State, 692 S.W.2d 661, 667 (Tex. Crim.

App. 1984) (Op. on reh’g)” (Pet. App. 12). There should

be no question but that Petitioners have a sufficient per-

sonal stake in the appeal proceedings to assure “concrete

adverseness” for “standing purposes.” See Baker v. Carr, 369

US. 186, 204 (1962); Flast v. Cohen, 392 U.S. 83, 99-101 (1968).

Each Petitioner stands to serve a substantial amount of time

in confinement at the Harris County Jail, the conditions of

which have been ruled “cruel and unusual in violation of the

Eighth and Fourteenth Amendments.” Alberti v. Klevenhapen,

Civ. Action No. H-72-1094, FINDINGS OF FACT AND CON-

CLUSIONS OF LAW of September 25, 1989 (U.S. Dist. Ct.,

S.D. Tex., Hou. Div.), p. 25. See U.S. Const., 8th Amendment,

Cruel and Unusual Punishments provision, and 14th

Amendment, Due Process Clause. Standing is especially pro-

nounced as to Amerson, who is legally blind, since his

incarceration should require a certain amount of special

attention or handling; and to rule that he lacks standing at

this juncture to complain about recently adjudicated uncon-

stitutional conditions at such Jail is erroneous. Under Texas

law, Petitioners are in constructive restraint of their liberties

by virtue of such appeal bonds. Ex parte Ormsby, 676 S.W. 2d

130, 132 (Tex. Cr. App., En Banc, 1984).

In the Court of Appeals, Petitioners sought to have

their jail sentences for execution in Harris County Jail be

stricken as unconstitutional; or, in the alternative, that

they be suspended until such time that the conditions at

such Jail were no longer unconstitutional, but, if such

conditions were not remedied within a reasonable time to

be prescribed by the Court, that such sentences be

stricken as unconstitutional. The Court of Appeals should

have addressed the merits of their claim.

Il.

THE COURT OF APPEALS ERRED WHEN IT RULED

THAT IT “MUST REJECT” PETITIONERS’ UNDERLY-

ING CHALLENGE TO ROE V. WADE

A. Background. The Texas Penal Code provides, in

pertinent part:

Section 9.33. Defense of Third Person

A person is justified in using force or

deadly force against another to protect a third

person if:

(1) under the circumstances as the

actor reasonably believes them to be, the

actor would be justified under Section 9.31

or 9.32 of this code in using force or deadly

force to protect himself against the unlawful

force or unlawful deadly force he reasona-

bly believes to be threatening the third per-

son he seeks to protect; and

(2) the actor reasonably believes that

his intervention is immediately necessary to

protect the third person.

The Trial Court would not allow the defense of third

person (or the defense of necessity) in the case, including

evidence in support thereof.

On appeal, Petitioners contended, in part, that the

unlawful force requirement of § 9.33 was met in three

ways — (1) because the Clinic was not licensed under the

Act to perform abortions on the date in question, (2)

because abortion is unlawful force as applied to the

unborn under Texas tort law and (3) because abortion is

unlawful force or unlawful deadly force since it violates

certain Texas anti-abortion law which is still in effect

because Roe v. Wade, supra, 410 U.S. 113, which purported

to hold such law unconstitutional, is itself void as viola-

tive of the U.S. Constitution and fundamental principles

of personal jurisdiction. Such Texas anti-abortion law is

that in Vernon’s Annotated Texas Penal Code (1925) arts.

1191-1194, 1196 (former Texas Penal Code). See Roe, supra,

410 U.S. at 117, fn. 1.

Insofar as ground “(3)”, above, is concerned, Petitioners

contended on appeal that Roe was void as violative of the

U.S. Constitution and fundamental principles of personal

jurisdiction. They set forth eight areas of such illegality.

B. The Merits. The Court of Appeals considered that

Petitioners had premised their contentions on the two justi-

fication defenses - defense of third person and defense of

necessity — “on the purported invalidity of Roe v. Wade

*** ”' and, after describing Roe as this Court’s “decision

concerning the privacy of a woman’s decision on whether or

not to abort her unborn child”, ruled that it “must reject

appellants’ [Petitioners’] underlying challenge to Roe [citing

cases]” (Pet. App. 7-8). The Court, however, was not required

to reject Petitioners’ collateral attack against Roe resulting

from application of the defense of third person vis-a-vis Texas

statutory anti-abortion law purportedly held unconstitu-

tional in Roe. Petitioners’ challenges against Roe were

grounded constitutionally and jurisdictionally and resulted

from exercise of their right to defend themselves under Tex.

Penal Code, § 9.33.

While this Court is the final authority in the inter-

pretation of the U.S. Constitution, there is nothing in U.S.

constitutional law or logic which even suggests that obe-

dience to a Supreme Court decision is required where the

decision is rendered without jurisdiction or is violative

otherwise of the U.S. Constitution. Indeed, it is well estab-

lished that if a court in the United States violates the U.S.

Constitution in a proceeding before it, it loses jurisdiction

to proceed to judgment, and any “judgment” which it might

render would be void. E.g., Johnson v. Zerbst, 304 U.S. 458,

467-468 (1958); Windsor v. McVeigh, 93 U.S. 274, 277-284

(1876). This Court is capable of violating the U.S. Consti-

tution. See Erie R. Co. v. Tompkins, 304 U.S. 64, 77-78, 79-80

(1938), where the Court even admitted that it and lower

federal courts had done so with application of the doc-

trine of Swift v. Tyson, 16 Pet. 1 (1842).

Since, as shown below, Roe violates the U.S. Constitu-

tion and fundamental principles of personal jurisdiction,

it is not law, muc! less constitutional law. The Court of

Appeals should ha ve addressed and decided Petitioners’

collateral attack instead of rejecting it outright. It should

have ruled that the unlawful force element of the defense

of third person was met by the Clinic’s abortion activities

since those activities were violative of such Texas statu-

tory anti-abortion law; and that, based on the Bills and

other evidence,!° Petitioners were entitled to raise and

support such defense against the charges here involved.

IV.

ROE V. WADE SHOULD BE RECONSIDERED AND

OVERRULED

A. Constitutional or Jurisdictional Grounds. Roe v.

Wade, supra, 410 U.S. 113, should be reconsidered and

overruled on various constitutional or jurisdictional

grounds as follows:

1. Manufacture of the Liberty of Abortion. In Roe, this

Court violated Article III of the U.S. Constitution by

creating a constitutional liberty of abortion and by

restricting the states of their reserved constitutional

authorities to legisiate in this area of substantial state

interest. Cf. Bowers v. Hardwick, 478 U.S. 186 (1986). This

violated also the unenumerated rights of the people, as

10 The Court of Appeals said that “[t]here is no testimony

concerning the welfare of the patient or the procedures per-

formed at the clinic” as support for its conclusion that Peti-

tioners’ Bills of Exceptions did not meet all of the elements of

the defense(s) (Pet. App. 8, 9). The short answer, however, is

that patient welfare and abortion procedures at the Clinic were

irrelevant to application of such defense relative to the unborn.

The Court’s assertion that “an unborn child is not at the

present time under Texas law a ‘person’ for purposes of the

defense of defending third persons [citing two cases]” (Pet.

App. 9-10) ignores the substantial legal posture of an unborn

child under Texas law, see pp. 27-28, infra, and seems to

indicate that that situation might change in the future. Its

further assertion that “[d]efense of third persons is presently

precluded in abortion cases in Texas [citing case]” (Pet. App.

10) ignores such legal posture and overlooks the sweep of

Section 9.33, above.

guaranteed by the 9th Amendment to the U.S. Constitu-

tion, and the division of powers concept, as guaranteed

by the 10th Amendment thereof. See Erie R. Co. v.

Tompkins, supra, 304 U.S. at 77-78.

Fundamental liberties not enumerated in the text of

the U.S. Constitution have been defined as “those that are

‘deeply rooted in the Nation’s history or tradition’ ” or,

more narrowly, “those interests that are ‘implicit in the

concept of ordered liberty’ such that ‘neither liberty nor

justice would exist if [they] were sacrificed’ ” [Thornburgh

v. American College of Obstetricians and Gynecologists, 476

U.S. 747, 790-791 (1986) (White, J., joined by Rehnquist, J.,

dissenting)]. In Roe, this Court did not establish abortion

as a fundamental right under either of these tests or, for

that matter, under any recognized constitutional stan-

dard. Its denomination of abortion as a “fundamental

right” was but the ipse dixit of seven Justices and imposed

upon the Nation in contravention of the U.S. Constitution

and of duly enacted laws.

2. Failure To Apply Properly the Constitutional Implied

Rights Concept to “Liberty” Under the 14th Amendment.

While “liberty” is a broad concept, “life” is the most basic

of rights for, without it, all other rights and interests are

meaningless. Where was the correlation between “lib-

erty” and the right to destroy unborn life? Or the basis

for the “fundamental” ranking of such a right? Cf. Bowers

v. Hardwick, supra, 478 U.S. 186. Not only was abortion a

crime at common law and in Texas, but the legal and

social heritage of this Nation viewed abortion not as a

“right” but as a naked wrong. Moreover, the Constitution

protects the life rights of persons against certain govern-

mental deprivations, and nowhere does it give any human

being the right to destroy the life of another. If the

implied rights decisions of this Court were applied prop-

erly, the life right of the unborn would have prevailed

clearly over any liberty to destroy the same.

3. Failure To Apply Levy v. Louisiana, 391 U.S. 68

(1968), Concerning Human Personhood Under the 14th

Amendment. This Court failed to apply the “live,”

“human” and “having a being” test of 14th Amendment

personhood postulated by it in Levy v. Louisiana, 391 US.

68 (1968), to the affected unborn children. If such a deci-

sion can be overlooked or disregarded by the Court itself,

how can it be maintained that a constitutional interpre-

tive decision has “law of the land” ranking?

4. Failure To Apply the Constitutional Implied Rights

Concept to 14th Amendment Personhood for the Unborn.

Since a born person has 14th Amendment recognition,

and since such a person does not originate at birth, it

follows that 14th Amendment recognition extends to such

person prenatally. The person after birth is the selfsame

person before birth, only at a different developmental

stage. This is a matter of common knowledge.

5. No Representation. Neither abortion “survivor”

children nor unborn children threatened and endangered

by abortion were represented before the Three-Judge U.S.

District Court or this Court in Roe. Abortion “survivor”

children born in this country are U.S. citizens (with

extremely minor exceptions), yet they are doomed to die

and die primarily due to prematurity, abortional injury or

lack of care. Sometimes they are killed outright.'! Unborn

children, with well recognized legal postures under the

laws of the United States, Texas and other States, are

killed pervasively by abortion.

Abortion “survivors” and unborn children are per-

sons or entities with legal personalities under the Due

Process Clause of the 5th Amendment to the U.S. Consti-

tution. The Judgments of the U.S. District Court and this

11 See, e.g., Showery v. State, 690 S.W. 2d 689, 694, 695-696

(Tex. App. - El Paso, 1985, pet. dis. rev. ref.), where a girl who

survived a hysterotomy abortion was drowned by the abor-

tionist in a bucket of water.

Court in Roe, rendered without any representation of

such victims by guardian or next friend (or by counsel for

such guardian or next friend), constituted naked depriva-

tions of life, liberty and property without due process of

law, in violation of the Due Process Clause of such 5th

Amendment. Accordingly, such Judgments are uncon-

stituUonal and void as to them. See McArthur v. Scott, 113

U.S. 340, 391-392, 404 (1885) (unborn children); Pennoyer

v. Neff, 95 U.S. 714, 733-734 (1878) (U.S. citizens).

6. No Personal Jurisdiction. Neither the Three-Judge

U.S. District Court nor this Court in Roe had personal

jurisdiction over such abortion “survivor” or unborn chil-

dren. Yet such children were affected vitally by those

proceedings, and had a right to be before such Courts

through next friends or guardians (or by counsel for such

guardians or next friends). The Judgments of such

Courts, therefore, were unconstitutional and void as to

them. See Ibid.

Moreover, this deficiency operated to divest such

Courts of authority to pronounce judgment affecting

them personally. Neither the unborn children who were

conceived and killed by abortion after Roe nor abortion

“survivor” children after Roe could be affected jurisdic-

tionally by Roe in their rights posture, yet they die as a

result of Roe or the abortion “ethic.” Accordingly, the

Judgments of such Courts, rendered without personat

jurisdiction over such infant victims, are void as violative

of fundamental principles of personal jurisdiction. See

Ibid.

7. Invidious Discriminations. The discriminations

perpetrated in Roe against abortion “survivors” and

unborn children, as compared to corporations and the

unaborted born, are invidious and deprive such “sur-

vivors” and the unborn of life, liberty and property with-

out due process of law, in violation of the Due Process

Clause of the 5th Amendment to the U.S. Constitution.

Corporations, which are artificial beings and not men-

tioned in the U.S. Constitution, are “persons” under the

Due Process Clause of the 5th Amendment to the U.S.

Constitucion and under the Due Process and Equal Pro-

tection Clauses of the 14th Amendment thereof, while

actual unborn human beings, recognized in law and pos-

sessive of substantial legally cognizable rights, are denied

such personhood. A prematurely born child of 7-month

gestational age has 14th Amendment personhood while

an older and more developed unborn child of 8-month

gestational age does not. Neither the 5th nor the 14th

Amendments to the U.S. Constitution can justify such

crazy-quilt discriminations. Corporations enjoy the pro-

tections of the law while abortion “survivors” are

allowed to be brought forth in the most monstrously

‘ostile environment for defenseless children.

8. Naked Deprivations of Rights. The Due Process

Clause of the 5th Amendment stood as a bar to this

Court’s judgment in Roe which endangered the rights of

abortion “survivors” and authorized the destruction of a

large body of legally cognizable rights of the unborn. See

Marbury v. Madison, 5 U.S. 137, 163 (1803); Munn v. Illi-

nois, 94 U.S. 113, 134 (1887).

An abortion “survivor” in Texas would be a U.S. and

Texas citizen under the Citizenship Clause of said 14th

Amendment, and entitled to citizen protections under

Article I, Section 19, of the Texas Constitution; a “person”

within the protective reach of the Due Process and Equal

Protection Clauses of said 14th Amendment and the Due

Process Clause of said 5th Amendment; an “individual”

within the protection of the Texas Penal Code [See Tex.

Penal Code, § 1.07(a)(17).]; a “child” under the Texas Fam-

ily Code, § 11.01(1), and the tort law of Texas; and would

have the same rights, powers and privileges of a child

born in Texas atter the normal gestation period (Tex.

Family Code, § 12.05).

As for unborn children, there is no question but that

they have substantial legal recognitions and rights pos-

tures in Texas and elsewhere. In Texas, an unborn child

may be represented in judicial proceedings which affect

his or her property rights [Bradley v. Henry, 239 S.W. 2d

404 (Tex. Civ. App. - Fort Worth, 1961, no writ)], and may

share with his mother in a wrongful death award for the

death of his father [Brantley v. Boone, 34 S.W.2d 409, 411

(Tex. Civ. App. - Eastland, 1931, no writ)]. A “duty of

care” is owed to the unborn child under the prenatal tort

injury doctrine, as recognized in all 51 domestic U.S.

Jurisdictions. See Prosser, Handbook of the Law of Torts (4th

ed., 1971), § 55, pp. 335-338. Certain property interests

may vest in an unborn child [Medlock v. Brown, 136 S.E.

551, 553 (S.C. Ga., 1927) (interest in trust); Chrisfield v.

Storr, 36 Md. 129, 145-146 (Ct. App. Md., 1872) (remainder

interest in real property)]. In medical areas, the life inter-

est of an unborn child has been recognized and protected

over the religious or other interest of the mother, where a

blood transfusion or a caesarian operation is needed.

Raleigh Fitkin-Paul Morgan Mem. Hosp. v. Anderson, 201 A.

2d 537, 538 (S.C.N.J., 1964), cert. denied, 337 U.S. 985

(1965) (blood transfusion); Jefferson v. Griffin Spaulding Co.

Hosp. Authority, 274 S.E. 2d 457, 459, 460 (S.C. Ga., 1981)

(caesarian operation).

B. Other Grounds — Unintended Consequences. Roe

should be reconsidered and overruled because it has

resulted in various consequences not intended by the

Court:

1. Abortion on Demand. In Roe, this Court made it

clear that a pregnant woman does not have an absqlute

right to terminate her pregnancy “at whatever time, in

whatever way, and for whatever reason she alone

chooses” (410 U.S. at 153). The Constitution does not

require “abortion on demand” (Concurring Opinion, Bur-

ger, C.J., 410 U.S. 208). In Doe v. Bolton, 410 U.S. 179

(1973), the Court said that “Roe v. Wade, supra, sets forth

our conclusion that a pregnant woman does not have an

absolute constitutional right to an abortion on her

demand” (410 U.S. at 189). The opposite, as the Court

may well take note, has occurred and continues. Well

over one million unborn children are killed by abortion in

this Nation each year. Abortion “survivor” children, prac-

tically all of whom are U.S. citizens, die also from abor-

tion or its “ethic.” Even where a state proscribes abortion

after viability, with life and health exceptions per Roe, the

“health” meaning under Doe is so broad as to make such

proscription more form than substance.

2. Effect of Abortion and the Abortion “Ethic” on Chil-

dren Who “Survive” Abortion. Abortions and applications

of the abortion “ethic” bring about deaths of U.S. citizen

children who continue to live after they have been

aborted. See p. 25, including footnote 11, supra. Moreover,

since “unsuccessful” abortions (i.e., those resulting in live

births) could translate into legal claims against the abor-

tionists, etc., “success” is encouraged legally — to the

naked detriment of infant U.S. citizens. See Stills v. Grat-

ton, 127 Cal. Rptr. 652, 657, 658-659 (Cal. App., Ist Dist.,

1976).

3. Internal Legal Chaos. Roe has introduced legal

chaos in Texas and other domestic U.S. Jurisdictions rela-

tive to unborn children. They have substantial legal rec-

ognitions and rights, yet they may be killed by abortion.

See pp. 27-28, above. In the majority of the states and in

the District of Columbia, a wrongful death action is main-

tainable under their wrongful death statutes for the death

of a viable unborn child, and, in two states, such an

action is maintainable prior to viability (Georgia, “quick”;

Rhode Island, unborn child a person whther or not via-

ble). See ANNOTATION, “RIGHT TO MAINTAIN

ACTION OR TO RECOVER DAMAGES FOR DEATH OF

UNBORN CHILD”, 84 A.L.R. 3rd 411, 422-423, 432-446

(1978) and 1989 Supp. at 68, 69. A “duty of care” is owed

to the unborn child under the prenatal tort injury doc-

trine. How can the “law” recognize a legal status and

rights posture in an unborn child while at the same time

authorizing the destruction of such child by abortion on

demand per Roe? This makes the continued existence of

legal rights depend upon the desires of others — hardly an

object of what law should be or allow.

CONCLUSION

For the reasons and authorities set forth, it is submit-

ted respectfully that the Petition for a Writ of Certiorari

should be granted.

Respectfully submitted,

RicHarp W. ScHMUDE

P.O. Box 674

Tomball, Texas 77377-0674

(713) 376-0277

Attorney of Record for Petitioners

April, 1991

App. 1

APPENDIX

Affirmed and Opinion Filed June 28, 1990.

SEAL

In The

Fourteenth Court of Appeals

NOS. C14-89-=00828-CR

A14-89-00829-CR

B14-89-00830-CR

CHARLES DALE REED

JAMES CLIFFORD HORAN

MICHAEL SCOTT AMERSON,

Appellants

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court

At Law No. 5 Harris County, Texas Trial

Court Cause Nos. 8916760; 8916761; 8916763

OPINION

Appellants were charged by information with the

misdemeanor offense of obstructing a passageway. Tex.

Prenat Cope ANN § 42.03. Each appellant was found guilty

by a fury. Punishment was assessed by the jury at ninety

days in jail and a $1000 fine for appellant Reed. The other

appellants received 180 days in jail and a $1000 fine. We

affirm.

App. 2

Appellant’s convictions arise out of events surround-

ing an abortion protest in October 1988. The appellants

and several other protestors had chained or otherwise

secured themselves to barrels and other fixed objects in

front of a Houston clinic. The barrels had concrete in

them and were positioned in such a way that no vehicles

could get into or out of the clinic. After a request by the

security guard failed to convince the protestors to move,

the Houston Police were called. The demonstrators were

told to move from the driveway, but the appellants as

well as several others remained. A police officer video-

taped the demonstration including the reading to each of

the appellants of the violation with which they would be

charged. Each of the demonstrators were given an oppor-

tunity to move before being arrested.

Before us are individuals charged with a crime. Most

persons so charged have been engaged in activity moti-

vated by selfish or base motives. Such is not the case

here. Before this court are individuals who have been

motivated by the highest principles. Their concern is

assisting other human beings and preserving what they

conscientiously believe to be human life. The question

before us, however, is not their motivation or the correct-

ness of their convictions. This court must determine

solely the question of whether these individuals, however

well intentioned, have actually broken a law of the state

of Texas in effect at the time of the occurrence in ques-

tion. No individual, whether he be citizen, lawyer, or

judge, is above the law. We must abide by and follow the

law as it is and not as we wish it were.

In their first four points of error, the appellants claim

that the section of the Texas Penal Code upon which their

App. 3

convictions are based is unconstitutionally overbroad and

void for vagueness in violation of the United States and

Texas Constitutions. Pre-trial motions to quash the infor-

mations were filed on this basis, and after a hearing, the

trial court denied the motions. In reviewing the constitu-

tionality of a statute, there is a presumption that the

statute is valid and that the Legislature has not acted

unreasonably or arbitrarily in enacting the law. Ex parte

Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978).

The Court of Criminal Appeals has held that the State

has the right to regulate the use of city streets and other

facilities to assure the safety and convenience of people in

their use. Haye v. State, 634 S.W.2d 313, 315 (Tex. Crim.

App. 1982), citing inter alia, Cox v. Louisiana, 379 U.S. 536.

The statute “protects the right of the public to the rea-

sonably convenient use of sidewalks and other passage-

ways without encroachment upon the First Amendment

rights of the individual.” Id. Further, the Legislature has

provided protection of first amendment expression

through the enactment of Tex. PENAL Cope Ann. § 42.04.

This statute provides, in pertinent part, as follows:

(a) If conduct that would otherwise vio-

late . . . Section 42.03 of this code consists of

speech or other communication, . . . or of gather-

ing with others to picket or otherwise express in

a nonviolent manner a position on social, eco-

nomic, political or religious questions, the actor

must be ordered to move, disperse, or otherwise

remedy the violation prior to his arrest if he has

not yet intentionally harme’ the interests of

others which those sections seek to protect.

(b) The order required by this section may

be given by a peace officer, a fireman, a person

App. 4

with authority to control the use of the prem-

ises, Or any person directly affected by the viola-

tion.

tion 42.01(a)(5) or 42.03 of this code:

(1) that in circumstances in which this sec-

tion requires an order no order was given;

(2) that an order, if given, was manifestly

unreasonable in scope; or

(3) that an order, if given, was promptly

obeyed.

“[A] statute is [only] considered impermissibly overbroad

if, in addition to proscribing activities which may consti-

tutionally be forbidden, it sweeps within its coverage

speech or conduct which is protected by the first amend-

ment.” Morehead v. State, 746 S.W.2d 830, 833-34 (Tex.

App. — Dallas 1988, pet.granted). The statute complained

of regulates conduct, and not speech, and is not constitu-

tionally overbroad. Smith v. State, 772 S.W.2d 946, 949

(Tex. App. - Dallas 1989, pet.ref’d)[.]

The appellants also complain that Section 42.03 is

void for vagueness. In order for a penal statute to [be]

unconstitutionally vague, “it must either forbid or require

the doing of an act in terms so vague that people of

common intelligence must necessarily guess as its mean-

ing and differ as to its application, thereby violating the

fair notice requirement of due process of law.” Morehead,

supra at 836-37. All of the complained of terms have

common meanings, and “words defined in dictionaries

and with meanings so well known as to be understood by

a person of ordinary intelligence are not to be considered

vague and indefinite.” Id. Further, appellants have failed

App. 5

to cite any authority for their proposition that the words

are vague. The failure to cite authority specifically in

support of their argument presents nothing for review.

MacDonald v. State, 761 S.W.2d 56, 60 (Fex. App. -

Houston [14th Dist.] 1988, pet.ref’d). Points of error one

through four are overruled.

In points of error five through ten, the appellants

contend that the trial court erred in admitting into evi-

dence, over objection, the videotape of the offenses taken

by the Houston Police. Appellants claim that the trial

court erred in overruling their objection based upon the

lack of a proper predicate for the video’s admission. The

seven-pronged predicate for the admission of sound

recordings also applies to videotapes. Edwards v. State,

551 S.W.2d 731 (Tex. Crim. App. 1977). Each of the

required elements were established either by direct proof

or could be inferred from the testimony as allowed by

Edwards. See also Roy v. State, 608 S.W.2d 645, 649 (Tex.

Crim. App. 1980). Prior to the jury’s viewing the tape, the

court gave the following limiting instruction at the appel-

lants’ request:

THE COURT: Ladies and gentlemen of the

jury, I’m going to give you an instruction before

you watch the video. | ask you not to consider

the conversations of the other people that you

see in the video — mainly, the other protestors —

in passing on the guilty or innocence of these

three defendants. I want you to keep that in

mind.

Finally, the appellants’ objection to a lack of predicate is a

general objection and does not preserve error on appeal.

Beck v. State, 719 S.W.2d 205, 214 (Tex. Crim. App. 1986).

App. 6

Appellants further claim that the court erred in

admitting the tape over the objections of relevancy and

hearsay. The only objection made at the time the tape was

offered into evidence was “lack of predicate”, but prior to

the tape’s being offered, appellants had objected to rele-

vancy and hearsay. The trial court never ruled on those

objections. Absent an adverse ruling appearing in the

record, no error is preserved for appeal. Darty v. State,

709 S.W.2d 652, 655 (Tex. Crim. App. 1986). Furthermore,

appellants are complaining only about statements made

by the police. Where a police officer’s testimony is admit-

ted, not for the truth, but to establish the course of events

and circumstances leading to the arrest of appellants, it is

not hearsay. Stewart v. State, 640 S.W.2d 643, 645 (Tex.

App. — Houston [14th Dist.] 1982, no pet.). In their ninth

point of error, appellants contend that the admission of

the video violated their rights to confrontation and cross-

examination of the police officer depicted on the tape

since that officer did not testify. Appellants did not raise

this objection until after the State had rested its case. The

failure to object in a timely and specific manner waives

error as to the admission of evidence, even though the

error may concern a constitutional right of the appellants.

Little v. State, 758 S.W.2d 551, 563 (Tex. Crim. App. 1988),

cert. denied, 109 S.Ct. 328 (1988). Finally, appellants com-

plain that the jury should not have been allowed to view

the tape during deliberations. The jury had requested the

tape as well as other exhibits, and it would have been

error for the trial court not to comply with that request.

See Tex. Cope Crim. Proc. ANN. art. 36.235 (sic) [should be

36.25]; Lopez v. State, 628 S.W.2d 82, 85 (Tex. Crim. App.

1982). Points of error five through ten are overruled.

App. 7

In points of error eleven and twelve, the appellants

allege that the court erred in overruling their motions for

a directed verdict. After the State had rested, appellants

moved for a directed verdict based upon the lack of

confrontation of a witness (the police officer in the video)

and alleged that the State had failed to prove that the

order to move from the clinic was issued to prevent an

obstruction. The trial court denied the motions, and the

appellants then went forward with their defense. After

the State rests, where the defense moves for a directed

verdict which is denied and then puts forth a defense,

appellants cannot challenge the court’s denial of the

motion on appeal. Any error has been waived. Kuykendall

v. State, 609 S.W.2d 791, 794 (Tex. Crim. App. 1980);

Springer v. State, 721 S.W.2d 510, 512 (Tex. App. - Houston

[14th Dist.] 1986, pet.ref’d). Appellants’ points of error

eleven and twelve are overruled.

Points of error thirteen through twenty-two assert

that the trial court erred in refusing to allow the defenses

of necessity and defense of third person. Appellants

maintain that the evidence was admissible, contending

that since the clinic was not licensed at the time of the

protest, the clinic’s activities were illegal. Although the

trial court would not allow evidence on these “defenses”,

appellants were allowed to make formal bills of excep-

tion. Appellants premise their contentions concerning

both justification defenses on the purported invalidity of

Roe v. Wade, 410 U.S. 113 (1973). This is the United States

Supreme Court decision concerning the privacy of a

woman’s decision on whether or not to abort her unborn

child. This court must reject appellants’ underlying chal-

lenge to Roe. See Ex parte Aldridge, 169 Tex.Cr. 395, 400,

App. 8

334 S.W.2d 161, 164 (1959); Brady v. Doe, 598 S.W.2d 338

(Tex. Civ. App. - Houston [14th Dist.} 1980, (per curium),

writ ref’d n.r.e.), cert. denied, 449 U.S. 1081 (1981). Roe is

still the law and has not, as yet, been overruled or mod-

ified to support the appellants’ position.

For an appellate court to reverse a conviction based

upon excluded evidence, it must first conclude that

because the proffered evidence was relevant, the trial

court erred by excluding it. See Bird v. State, 692 S.W.2d

65, 73 (Tex. Crim. App.), cert. denied, 475 U.S. 1031 (1985).

Only then may this court decide whether the appellants

were harmed. Id.; Tex. R. App. P. 81(b)(2). Because deter-

mination of the relevancy of evidence is a matter within

the discretion of the trial court, appellants must also

demonstrate that the trial court’s exclusionary rulings

amounted to an abuse of discretion. See Johnson v. State,

698 S.W.2d 154, 160 (Tex. Crim. App. 1985) (en banc), cert.

denied, 479 U.S. 871 (1986); Werner v. State, 711 S.W.2d 639,

643 (Tex. Crim. App. 1986) (en banc); Dominquez v. State[,]

722 S.W.2d 179, 183 (Tex. App. - Houston [14th Dist.]

1986, no pet.). Evidence is relevant if it tends to render a

contested material issue more or less probable. Tex. R.

Crim. Evin. 401; Garza v. State, 715 S.W.2d 642, 644 (Tex.

Crim. App. 1986) (en banc).

Appellants preserved the question of the relevancy of

this evidence in four separate bills of exception. The bills

focus solely upon preventing the death of the unborn,

and each appellant’s personal convictions regarding abor-

tion. There is no testimony concerning the welfare of the

patient or the procedures performed at the clinic. A trial

court does not err when it excludes evidence if the evi-

dence fails to show that the accused is entitled to the

App. 9

defense to which it applies. Roy v. State, 552 S.W.2d 827,

830-31 (Tex. Crim. App. 1977), overruled on other grounds

in, (sic) Johnson v. State, 650 S.W.2d 414, 416 (Tex. Crim.

App. 1983) (en banc); Hoffart v. State, 686 S.W.2d 259, 264

(Tex. App. - Houston [14th Dist.] 1985, pet.ref’d), cert.

denied, 479 U.S. 824 (1986). To show they were entitled to

the defenses asserted, appellants’ bills of exception must

demonstrate that they met all the elements of the defense.

Roy, supra at 830.

Tex. Pena Cope ANN. § 9.33 defines the defense for

defending third persons. It states that a person is justified

in using force or deadly force against another to protect a

third person if:

(1) under the circumstances as the actor

reasonably believes them to be, the actor would

be justified under Section 9.31 or 9.32 of this

code in using force or deadly force to protect

himself against the unlawful force or unlawfully

deadly force he reasonably believes to be threat-

ening the third person he seeks to protect; and

(2) the actor reasonably believes that his

intervention is immediately necessary to protect

the third person.

Although the evidence does indicate that the clinic was

not properly licensed at the time of the protest, there is

no evidence that the appellants or the other protestors

knew that the clinic was not properly licensed at the time

of the occurrence in question. Because Trex. Pena Cope

ANN § 1.07(a)(27) defines “person” as “an individual,

corporation, or association,” while § 1.07(a)(17) defines

“individual” as “a human being who has been born and

is alive,” an unborn child is not at the present time under

Texas law a “person” for purposes of the defense of

App. 10

defending third persons. Bobo v. State, 757 S.W.2d 58 (Tex.

App. — Houston [14th Dist.] 1988, pet.ref’d), cert. denied,

109 S.Ct. 2066 (1989); Ogas v. State, 655 S.W.2d 322, 325

(Tex. App. - Amarillo 1983, no pet.). Defense of third

persons is presently precluded in abortion cases in Texas.

Erlandson v. State, 763 S.W.2d 845, 852 (Tex. App. -

Houston [14th Dist.] 1988, pet.ref’d), cert. denied, 110 S.Ct.

152 (1989). |

The defense of necessity requires a showing that:

(1) The acior reasonably believes the con-

duct is immediately necessary to avoid immi-

nent harm;

(2) the desirability and urgency of avoid-

ing the harm clearly outweigh, according to

ordinary standards of reasonableness, the harm

sought to be prevented by the law prescribing

the conduct; and

(3) a legislative purpose to exclude the jus-

tification claimed for the conduct dves not oth-

erwise plainly appear.

Tex. Penat Copr ANN. § 9.22.

Section 9.33 contemplates a case-by-case analysis in

assessing competing harms. The harm the actor perceives

and seeks to prevent must “clearly outweigh” the harm

which will result from his acting in violation of another

law. However, what the actor seeks to prevent must first

be a legal harm. It is not so under the present status of

Texas law. Despite appellants’ assertions that the clinic

was unlicensed, this condition does not effect the appli-

cability of the defenses. Without specific authority, appel-

lants present nothing for review. MacDonald, supra.

App. 11

The controlling issue in this case was whether appel-

lants obstructed a passageway. Although appellants

maintain that their bills of exception raised evidence

relevant to their prosecution, nothing in them make the

State’s allegations less probable. See Tex. R. Crim. Evin.

401. The appellants’ bills are irrelevant to the charges,

and do not give rise to a fact issue that justified the

appellant’s (sic) obstruction. The trial court did not abuse

its discretion by excluding the evidence. Because a deter-

mination of relevancy is the threshold question in any

challenge to the exclusion of evidence, it is not necessary

to decide whether the exclusion of this evidence harmed

the appellants. Bird, supra at 73. Appellant’s (sic) points of

error thirteen through twenty-two are overruled.

In their tweniy-third point of error, the appellants

assert that the trial court erred in permitting the prosecu-

tor to argue to the jury that appellants did not care what

the law was and that they were going to break whatever

laws they saw fit to further their cause. Appellants specif-

ically point to three instances of alleged improper jury

argument. Although objections were made on each occa-

sion, no adverse rulings appear in the record, and absent

an adverse ruiing, there is no preservation of error. Darty,

supra; White v. State, 681 S.W.2d 731 (Tex. App. - Houston

[14th Dist.] 1984, pet.ref’d). Furthermore, the failure to

request the court to instruct the jury to disregard the

statements waived any error on appeal. There is a pre-

sumption that an instruction to disregard would have

been obeyed by the jury thereby curing any error. Waldo

v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988).

Appellant's (sic) point of error twenty-three is overruled.

App. 12

In point of error twenty-four, appellants contend that

their jail sentences violate the protections against “cruel

and unusual punishment”. The statute under which the

appellants were convicted in a Class B misdemeanor. See

Tex. Penat Cope ANN. § 42.03(c). An individual found

guilty of a Class B misdemeanor shall be punished by a

fine not to exceed $1000; confinement in jail for a term

not to exceed 180 days; or both the fine and imprison-

ment. Tex. Penat Cope Ann. § 12.22. The punishments

assessed are within the statutory range of punishment.

Where the punishment assessed is within the range pre-

scribed by the statute, the punishment is not unconstitu-

tionally cruel or unusual. Harris v. State, 656 S.W.2d 481,

486 (Tex. Crim. App. 1983) (en banc); Hypke v. State, 720

S.W.2d 158, 160 (Tex. App. - Houston [14th Dist.] 1986,

pet.ref’d). Each appellant is currently on bond pending

appeal. They lack standing to complain about the condi-

tions in the Harris County Jail until they are in actual

custody and can allege an “injury in fact”. Wilson v. State,

692 S.W.2d 661, 667 (Tex. Crim. App. 1984) (Op. on reh’g).

Appellants’ point of error twenty-four is overruled.

In points of error twenty-five and twenty-six, appel-

lants contend that the trial court erred in denying “Defen-

dant’s Motion to Quash Information No. 2”. They claim

that their charging instruments failed to provide suffi-

cient certainty for double jeopardy purposes as required

by Tex. Cope Crim. Proc, ANN. art. 21.04. Appellants

argue that the State was required to allege the locality of

the occurrence within Harris County by giving a more

detailed description of the “sidewalk, entrance, exit”

where the offense were committed. The information is

sufficient since it alleges the county in which the offense

App. 13

was committed. Obstruction of a passageway is an

offense against the owner’s possession and control of the

property, rather than an offense against the property

itself. See Reed v. State, 762 S.W.2d 640 (Tex. App. -

Texarkana 1988, pet.ref’d). Appellant’s points of error

twenty-five and twenty-six are overruled.

In their two final points of error, appellants contend

that the trial court erred when it denied “Defendant's

“*otion to Quash Information No. 4” by each appellant

because the informations failed to allege the manner or

means of the obstruction sought to be prevented. The

informations on which appellants were convicted read as

follows:

. intentionally and knowingly, without legal

privilege and authority, disobey a reasonable

request and order to move issued by J.C. LIN-

NEY, a person the [Appellant] knew to be and

was informed was a peace officer and a person

with authority to control the use of the prem-

ises, to prevent obstruction of a sidewalk, an

entrance and an exit to which the public or a

substantial group of the public had access.

The offense is disobeying a reasonable request or order to

move and not the means of obstruction. When an infor-

mation tracks the language of the statute, as here, it is

legaliy sufficient to provide an appellant with nctice of

the crime with which he is charged. Smith, supra at 952.

The informations were sufficient, and the trial court did

not err in denying the motions to quash. Appellant’s

twenty-seventh and twenty-eighth points of error are

overruled.

App. 14

The judgment of the trial court is affirmed.

/s/ Paul Pressler

Justice

Judgment rendered and Opinion filed June 28, 1990.

Panel consists of Justices Pressler, Cannon, and Ellis.

Publish - Tex. R. App. P. 90.

App. 15

JUNE 28, 1990

(SEAL)

JUDGMENT

The Fourteenth Court of Appeals

MICHAEL SCOT: AMERSON, Appellant

No. B14-89-00830-CR V.

THE STATE OF TEXAS, Appellee

This cause came on to be heard on the transcript of

the record of the court below. The same being considered,

it is the opinion of this Court that there was no error in

the judgment. It is ordered by the Court that the judg-

ment be in all things affirmed, and that the appellant pay

all costs in this behalf expended, and that this decision be

certified below for observance.

App. 16

JUNE 28, 1990

(SEAL)

JUDGMENT

The Fourteenth Court of Appeals

JAMES CLIFFORD HORAN, Appellant

No. A14-89-00829-CR V.

THE STATE OF TEXAS, Appellee

This cause came on to be heard on the transcript of

the record of the court below. The same being considered,

it is the opinion of this Court that there was no error in

the judgment. It is ordered by the Court that the judg-

ment be in all things affirmed, and that the appellant pay

all costs in this behalf expended, and that this decision be

certified below for observance.

App. 17

JUNE 28, 1990

(SEAL)

JUDGMENT

The Fourteenth Court of Appeals

CHARLES DALE REED, Appellant

No. C14-89-00828-CR V.

THE STATE OF TEXAS, Appellee

This cause came on to be heard on the transcript of

the record of the court below. The same being considered,

it is the opinion of this Court that there was no error in

the judgment. It is ordered by the Court that the judg-

ment be in all things affirmed, and that the appellant pay

all costs in this behalf expended, and that this decision be

certified below for observance.

App. 18

Fourteenth Court of Appeals

1307 San Jacinto, 11th Floor

Houston, Texas 77002

J. CURTISS BROWN

CHIEF JUSTICE

PAUL PRESSLER

WILLIAM E. JUNELL

PAUL C. MURPHY

SAM ROBERTSON

ROSS A. SEARS

BILL CANNON

JOE L. DRAUGHN

GEORGE T. ELLIS

‘JUSTICES

Hon. Richard W. Schmude

P.O. Box 674

Tomball, TX 77375

Hon. Roger A. Haseman

Assistant District Attorney

201 Fannin

Suite 200

Houston, TX 77002

MARY JANE SMART

CLERK

HELEN A. CASSIDY

CHIEF STAFF ATTORNEY

PHONE

713-655-2800

September 6, 1990

RE: CASE NO. 14-89-00830-CR

TRIAL COURT CASE NO. 891,6763

STYLE: Amerson, Michael Scott V: The State of Texas

Counsel:

App. 19

Please be advised that on this date, the Court OVER-

RULED appellant’s(s’) motion for rehearing in the above

cause.

MARY JANE SMART, CLERK

By /s/ Charlene Mitchell

Deputy

County Criminal Court at Law No. 5

301 San Jacinto

2nd Floor

Houston, TX 77002

Hon. Ray Hardy

District Clerk, Harris County

Attention: Criminal Division

P.O. Box 4651

Houston, TX 77210

App. 20

Fourteenth Court of Appeals

1307 San Jacinto, 11th Floor

Houston, Texas 77002

J. CURTISS BROWN

CHIEF JUSTICE

PAUL PRESSLER

WILLIAM E. JUNELL

PAUL C. MURPHY

SAM ROBERTSON

ROSS A. SEARS

BILL CANNON

JOE L. DRAUGHN

GEORGE T. ELLIS

JUSTICES

Hon. Richard W. Schmude

P.O. Box 674

Tomball, TX 77375

Hon. Roger A. Haseman

Assistant District Attorney

201 Fannin

Suite 200

Houston, TX 77002

MARY JANE SMART

CLERK

HELEN A. CASSIDY

CHIEF STAFF ATTORNEY

PHONE

713-655-2800

September 6, 1990

RE: CASE NO. 14-89-00829-CR

TRIAL COURT CASE NO. 891,6761

STYLE: Horan, James Clifford V: The State of Texas

Counsel:

App. 21

Please be advised that on this date, the Court OVER-

RULED appellant’s(s’) motion for rehearing in the above

cause.

“ MARY JANE SMART, CLERK

By /s/ Charlene Mitchell

Deputy

County Criminal Court at Law No. 5

301 San Jacinto

2nd Floor

Houston, TX 77002,

Hon. Ray Hardy

District Clerk, Harris County

Attention: Criminal Division

P.O. Box 4651

Houston, TX 77210

App. 22

Fourteenth Court of Appeals

1307 San Jacinto, 11th Floor

Houston, Texas 77002

J. CURTISS BROWN MARY JANE SMART

CHIEF JUSTICE CLERK

PAUL PRESSLER HELEN A. CASSIDY

WILLIAM E. JUNELL CHIEF STAFF ATTORNEY

PAUL C. MURPHY

SAM ROBERTSON PR ie ge

ROSS A. SEARS

BILL CANNON

JOE L. DRAUGHN

GEORGE T. ELLIS

JUSTICES

September 6, 1990

Hon. Richard W. Schmude

P.O. Box 674

Tomball, TX 77375

Hon. Roger A. Haseman

Assistant District Attorney

201 Fannin

Suite 200

Houston, TX 77002

RE: CASE NO. 14-89-00828-CR

TRIAL COURT CASE NO. 891,6760

STYLE: Reed, Charles Dale V: The State of Texas

Counsel:

App. 23

Please be advised that on this date, the Court OVER-

RULED appellant’s(s’) motion for rehearing in the above

cause,

MARY JANE SMART, CLERK

By /s/ Charlene Mitchell

Deputy

County Criminal Court at Law No. 5

301 San Jacinto

2nd Floor

Houston, TX 77002

Hon. Ray Hardy

District Clerk, Harris County

Attention: Criminal Division

P.O. Box 4651

Houston, TX 77210

App. 24

January 16, 1991

COA#: 14-89-00830-CR

(SEAL) OFFICIAL NOTICE

(INK COURT OF CRIMINAL

STAMP) APPEALS (POSTMARK and

RE: Case No. 1063-90 POSTAGE)

STYLE: AMERSON, MICHAEL SCOTT

On this day, the Appellant’s Petition for Discretion-

ary Review has been REFUSED.

JUDGE MALONEY WOULD GRANT ON NO. 1.

Thomas Lowe, Clerk

COURT OF CRIMINAL APPEALS

P.O. BOX 12308, CAPITAL STATION

AUSTIN, TEXAS 78711

MAIL TO: RICHARD W. SCHMUDE

P.O. BOX 674

TOMBALL, TX 77375

January 16, 1991

COA#: 14-89-00829-CR

(SEAL) OFFICIAL NOTICE

(INK COURT OF CRIMINAL

STAMP) APPEALS (POSTMARK and

RE: Case No. 1062-90 POSTAGE)

STYLE: HORAN, JAMES CLIFFORD

On this day, the Appellant’s Petition for Discretion-

ary Keview has been REFUSED.

JUDGE MALONEY WOULD GRANT ON NO. 1.

Thomas Lowe, Clerk

App. 25

COURT OF CRIMINAL APPEALS

P.O. BOX 12308, CAPITAL STATION

AUSTIN, TEXAS 78711

MAIL TO: RICHARD W. SCHMUDE

P.O. BOX 674

TOMBALL, TX 77375

January 10, 1991

COA#: 14-89-00828-CR

(SEAL) OFFICIAL NOTICE

(INK COURT OF CRIMINAL

STAMP) APPEALS (POSTMARK and

RE: Case No. 1061-90 POSTAGE)

STYLE: REED, CHARLES DALE

On this day, the Appellant's Petition for Discretion-

ary Review has been REFUSED.

JUDGE MALONEY WOULD GRANT ON NO. 1.

Thomas Lowe, Clerk

COURT OF CRIMINAL APPEALS

PO. BOX 12308, CAPITAL STATION

AUSTIN, TEXAS 78711

"RICHARD W. SCHMUDE |

MAIL TO: bo BOX 674

TOMBALL, TX 77375

(SEAL)

(INK

STAMP)

App. 26

January 24, 1991

COA#: 14-89-00830-CR

OFFICIAL NOTICE

COURT OF CRIMINAL

APPEALS (POSTMARK and

RE: Case No. 1063-90 POSTAGE)

STYLE: AMERSON, MICHAEL SCOTT

The Court has this day rejected the appellant’s motion for

rehearing for failure to comply with Rule 230(b) T.R.A.P.

Thomas Lowe, Clerk

COURT OF CRIMINAL APPEALS

P.O. BOX 12308, CAPITAL STATION

AUSTIN, TEXAS 78711

(SEAL)

(INK

STAMP)

RICHARD W. SCHMUDE

MAIL TO: P.O. BOX 674

TOMBALL, TX 77375

January 24, 1991

COA#: 14-89-00829-CR

OFFICIAL NOTICE

COURT OF CRIMINAL

APPEALS (POSTMARK ard

RE: Case No. 1062-90 POSTAGE)

STYLE: HORAN, JAMES CLIFFORD

The Court has this day rejected the appellant’s motion for

rehearing for failure to comply with Rule 230(b) T.R.A.P.

Thomas Lowe, Clerk

App. 27

COURT OF CRIMINAL APPEALS

P.O. BOX 12308, CAPITAL STATION

AUSTIN, TEXAS 78711

RICHARD W. SCHMUDE

MAIL TO: P.O. BOX 674

TOMBALL, TX 77375

January 24, 1991

COA#: 14-89-00828-CR

(SEAL) OFFICIAL NOTICE

(INK COURT OF CRIMINAL

STAMP) APPEALS (POSTMARK and

RE: Case No. 1061-90 POSTAGE)

STYLE: REED, CHARLES DALE

The Court has this day rejected the appellant’s motion for

rehearing for failure to comply with Rule 230(b) T.R.A.P.

_ Thomas Lowe, Clerk

COURT OF CRIMINAL APPEALS

P.O. BOX 12308, CAPITAL STATION

AUSTIN, TEXAS 78711

RICHARD W. SCHMUDE

MAIL TO: P.O. BOX 674

TOMBALL, TX 77375

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.