Petition for Writ of Certiorari — Carreras v. Texas

F Supreme Court, U.S.

oO FILED

ee

97-342 AUG 25 1997

No. _OFFICE OF JHE CLERK

In The

Supreme Court of the United States

October Term, 1996

*

ANGELINA ANITA CARRERAS,

Petitioner,

THE STATE OF TEXAS,

Respondent.

+

Petition For Writ Of Certiorari

To The Court Of Appeals For The

Fourteenth Judicial District Of Texas

¢

PETITION FOR WRIT OF CERTIORARI

°

Date W. FELTON

Counsel of Record for Petitioner,

Angelina Anita Carreras

FELTON & ASSOCIATES

1177 West Loop South, Suite 1450

Houston, Texas 77027

713/840-7700

Telecopier: 713/840-8802

and

TrmotHy A. HooTMAN

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

~ Angelina Anita Carreras and her male friend were

sitting unclothed from the waist up in a public park. Both

sat quietly, watching the activities at a beach festival.

Petitioner, Carreras, was arrested for this conduct; her

male companion was not. Petitioner was convicted of

disorderly conduct.

The questions presented here are:

Was petitioner denied equal protection

under the law?

Was petitioner denied due process?

li

TABLE OF CONTENTS

Page

Fe eR st ree oer i

py ee Be re en rr ii

TABLE Ge AACE 6 00 0 hob skis See biden, iii

PETITION FOR WRIT OF CERTIORARI............ 1

SE WI os 0 sos annie cee Sec ede eae eee 1

SR IE v6 + 6560ddnn cece abodes wage 1

CONSTITUTIONAL PROVISIONS INVOLVED...... 2

PEPE PPE 66 66 ndnnicenennceeseeeas 2

SEAT ee GP TE CAG aa cesiccccusiwsisnncsuns 3

REASONS FOR GRANTING THE WRIT ........... +

1. PETITIONER WAS DENIED EQUAL PROTEC-

FRIES 6.0 60s 0050900050460 e ee ees -

2. PETITIONER WAS DENIED DUE PROCESS... 14

A. THE LOWER COURT FAILED TO

ADDRESS PETITIONER’S ARGUMENT

THAT HER CONDUCT WAS NOT DISOR-

GUMS « <5sssexccncaeer eee 14

B. PETITIONER’S CONDUCT DID NOT

TEND TO INCITE VIOLENCE ........... 14

CONETEEIIIIN . 5.5 eee 17

WOIIIIRE 8 ovis ikicecceeeeee App. 1

MII Fs. ov sii App. 12

FL, Bk kx dk cee Gn ka tee bawakeade eee eee App. 14

iil

TABLE OF AUTHORITIES

Page

U.S. Cases

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) .... 15

Cohen v. California, 403 U.S. 15 (1971) ............ 12, 15

Frontiero v. Richardson, 411 U.S. 677 (1973)............ 9

Gooding v. Wilson, 405 U.S. 518 (1972)............... 15

Griffin v. Illinois, 351 U.S. 12 (1956) ................. 11

Jackson v. Virginia, 443 U.S. 307 (1979)............... 17

LE. © Aneemem, Sit U.S. 127 C1996)... 2. ccc 11

In re Winship, 397 US. 358 (1970) ...............000 16

Oyler ,v. Boles, 368 U.S. 448 (1962)................. 8, 10

Personnel Administrator of Mass. v. Feeney, 442 U.S.

EES i eS a 9

ee ek See Ee. og | ne 13

Snowden v. Hughes, 321 U.S. 1 (1944)............. 11, 13

Snyder v. Massachusetts, 291 U.S. 97 (1934)......... 7, 14

Strauder v. West Virginia, 100 U.S. 303 (1880) ......... 9

United States v. Armstrong, 518 U.S. __, 116 S.Ct.

ee ee Gee des inedecs shh i vienvenes 8

United States v. Virginia, 518 U.S. __, 116 S.Ct.

IEEE SS ESR A OO 11

Village of Arlington Heights v. Metro. Housing Div.,

ei a Lad we iwee.ane onda 9k fe

Wayte v. United States, 470 U.S. 598 (1985)............ Q

Williams v. Illinois, 399 U.S. 235 (1970) .............. 10

Yick Wo v. Hopkins, 118 U.S. 356 (1886)........... 11, 13

TABLE OF AUTHORITIES - Continued

Page

FEDERAL CASES |

Munson v. Janklow, 421 F.Supp. 544 (D.S.D. 1976),

aly d, S63 F.2G GSS (Oth Cit. 2977) onc cccsscevevees 7

STATE CASES

Durrough v. State, 693 S.W.2d 404 (Tex. Crim. App.

Ps boo ool a Aas ts 1 eee 6

Head v. State, 96 S.W.2d 981 (Tex. Crim. App. 1936) .... 16

Madden v. State, 799 S.W.2d 683 (Tex. Crim. App.

| Peer es Fee Lee PET, Cee er ee ron pee 16

Reynolds v. State, 848 S.W.2d 785 (Tex. App. -

Houston [14th Dist.] 1993, pet. ref’d) .............. 16

State v. Johnson, 246 N.W.2d 503 (Wis. 1976)......... 13

Woods v. State, 213 S.W.2d 685 (Tex. Crim. App.

a REE ELE eT CETTE er err eee 16

CONSTITUTIONAL PROVISIONS AND STATUTES

oR es ee errr re Zz. & 7, 24

Sh UE A 55 ei 2 |

Texas STATUTES

Acts 1993, 730d Leg., Ch. 900, § 1.1016) «......... 000055 3

Tex. PENAL Cope ANN. § 42.01(a)(2)............ 3, 14, 15

a

PETITION FOR WRIT OF CERTIORARI

Angelina Anita Carreras, petitioner, respectfully

prays that a writ of certiorari issue to review the judg-

ment and opinion of the Court of Appeals for the Four-

teenth Judicial District of Texas entered on December 30,

1996, because petitioner’s conviction was upheld in viola-

tion of the Fourteenth Amendment to the United States

Constitution.

OPINION BELOW

The published opinion of the court below is reprinted

in Appendix 1 hereto (“App. 1”) at page App. 1. Peti-

tioner filed a motion for rehearing and en banc recon-

sideration, both of which were overruled. (See App. 2,

App. 13.) Petitioner then filed a petition for discretionary

review in the Texas Court of Criminal Appeals, the high-

est Texas court of review of criminal cases, but the peti-

tion was refused. (See App. 3, App. 15). Therefore, no

opinion was issued.

JURISDICTION

The judgment and opinion sought to be reviewed

was entered on December 30, 1996 (see App. 1, App. 1).

Petitioner timely filed a motion for rehearing which was

overruled on January 23, 1997 (see App. 2, App. 13).

Petitioner timely filed a petition for discretionary review

in the Texas Court of Criminal Appeals, which was

refused on June 4, 1997 (see App. 3, App. 15). Pursuant to

Supreme Court Rule 13.1, this petition has been filed

within 90 days of the refusal of the petition for discretion-

ary review. |

The jurisdiction of the Court is invoked pursuant to

28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The following Constitutional provision is involved in

this case:

The Fourteenth Amendment, Section 1

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the privi-

leges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws. U.S.

CONST. amend. XIV § 1.

¢

STATUTES INVOLVED |

The following Texas statute is involved in this case:

Section 42.01(a)(2) of the Texas Penal Code

(a) A person commits an offense if he inten-

tionally or knowingly: (2) makes an offen-

sive gesture or display in a public place,

and the gesture or display tends to incite an

i

immediate breach of the peace. Tex. PENAL

Cope ANN. § 42.01(a)(2)!.

¢

STATEMENT OF THE CASE

Petitioner, a woman, was sitting with her male friend

in a public park. Both were unclothed from the waist up.

Petitioner was arrested and charged with disorderly con-

duct. The man was not. At trial, petitioner moved for an

instructed verdict on the grounds that she was denied

equal protection under the law, and that her conduct was

not disorderly as a matter of law. Her motion was denied

and she was convicted.

On appeal, the court of appeals affirmed the convic-

tion, holding that there was no evidence that petitioner

had been denied equal protection. The court of appeals

did not address petitioner’s argument that her conduct

was not disorderly. Petitioner’s motion for rehearing and

en banc reconsideration were overruled. The Texas Court

of Criminal Appeals then refused her petition for discre-

tionary review.

1 Petitioner was convicted prior to September 1, 1994, the

effective date of the revised Texas Penai Code. See Acts 1993,

73rd Leg., Ch. 900, § 1.18(b). Therefore, all references to the

penal code are to the code in effect at the time of her conviction.

REASONS FOR GRANTING THE WRIT

1. Petitioner Was Denied Equal Protection

The evidence in this case is clear and uncontroverted.

Petitioner and her male companion were sitting together

unclothed from the waist up in a public park. Both were

sitting quietly on the grass watching the activities at a

beach festival. Petitioner was arrested and charged with

disorderly conduct. Her male companion was not.

The undisputed evidence is as follows:

S.F. III, P 63, LL 2-11

Q: Isn’t it true that Ms. Carreras was doing exactly

the thing that the male with her was, the only

difference being that she is a female?

A: With both of them having their tops off?

Q: Yes, sir.

A: Yes.

Q:

Was Ms. Carreras doing anything, anything dif-

ferent than the man sitting with her?

A: No. They were both seated in the same area with

their shirts off.

S.F. III, P 72, L 25-P 73, L 12

Q: It was clear to you from the way that you saw

her before the police arrived that she was sitting

there with her shirt off?

r

Yes, sir.

2

And did you see a man sitting there with her?

A: Yes, sir.

ee

oO

> O >

S.F.

Did he have his shirt off?

Yes, he did.

Were they doing anything that was - were they

engaged in the same conduct?

Yes, they were.

Was she doing anything different than he was?

No, he was — he wasn’t — no, she wasn’t.

Ill, P 86, LL 2-5

Was Ms. Carreras doing anything differently

than the man that was with her?

She had her shirt off sitting in a different posi-

tion, but as far as the physical activity, no.

Ill, P 99, LL 4-10

So was Ms. Carreras doing anything differently

than the man that was with her?

Not to my knowledge, no, sir.

What you saw - sounds like you saw what they

were doing?

I didn’t see her doing anything different than

what he was doing, no, sir.

Ill, P 110, LL 6-8

Did the man that was in this case, that was by

Ms. Carreras, he had his shirt off, right?

I believe, yes, sir.

Ill, P 111, LL 12-15

As far as you could see, was the man that was

with Ms. Carreras doing anything differently

than she was?

A: No, sir.

A videotape was also introduced which shows the

conduct of petitioner and the man who was with her. (See

State’s Exhibit 1; S.F. III, 106.)? The videotape shows

petitioner and her male friend engaging in the same

conduct. Petitioner was arrested; the man was not. (S.F.

III, 97, 99.)

Petitioner defended at trial on the ground that she

was denied equal protection under the law. See U.S.

CONST. amend. XIV § 1. During trial, petitioner intro-

duced evidence to support her claim of denial of equal

protection. (S.F. III, 63, 72, 73, 86, 97, 99, 110, 111), and

moved for an instructed verdict on that ground (S.F. III,

116-117). On appeal, petitioner filed four briefs in which

she argued that her right to equal protection had been

denied. (See Appellant’s Brief 13-28; Appellant’s Reply

Brief 1-9; Appellant’s Motion for Rehearing 4-14; and

Petition for Discretionary Review 9-20, 23-24.)

The court of appeals held that “there was no evi-

dence that females anywhere were prosecuted when

males allegedly doing the same thing were not pros-

ecuted under similar circumstances” (App. 1, App. 7),

that “the evidence produced at trial failed to identify any

individuals who were not females, who could have been |

prosecuted for the offense for which petitioner was

charged, but were not so prosecuted” (App. 1, App. 8),

and that petitioner “produced no evidence to prove her

2 Exhibits are part of the appellate record, Durrough v. State,

693 S.W.2d 404, 405 (Tex. Crim. App. 1985), and the court of

appeals stated in its opinion that the videotape was in evidence

(App. 1, App. 2).

rT eee

claim of denial of equal protection of the laws.” (App. 1,

App. 10.) These holdings are outrageous, because the

facts are uncontroverted that petitioner was arrested and

charged with disorderly conduct while engaging in the

same conduct as a man who was not arrested or charged.

It is obvious from the record that a man could have been

prosecuted for the same offense, but he was not.

It appears that the court of appeals chose to avoid

petitioner’s equal protection argument through false “no

evidence” findings. But due process requires the court to

deal with constitutional defenses. Village of Arlington

Heights v. Metro. Housing Div., 429 U.S. 252, 266 (1977).

“Since the right to be free from selective prosecution is

based in the Fourteenth Amendment’s Equal Protection

Clause, state criminal courts are required to recognize,

hear, and determine a defense based on that right.” Mun-

son v. Janklow, 421 F.Supp. 544, 550 (D.S.D. 1976), aff’d, 563

F.2d 933 (8th Cir. 1977). By side-stepping petitioner’s

equal protection argument by a finding of “no evidence,”

the court of appeals violated the basic notion of a right to

be heard, and violated petitioner’s right to due process.

See U.S. CONST. amend. XIV § 1; see also Snyder v. Massa-

chusetts, 291 U.S. 97, 105 (1934).

The court of appeals also avoided petitioner’s equal

protection argument by holding that petitioner did not

prove the essential elements of a selective-prosecution

case. (App. 1, App. 7.) Petitioner urged at oral argument

that this is not a case of selective prosecution (see App. 1,

App. 2-3), because no crime had been committed. Peti-

tioner moved for an instructed verdict on the ground that

her conduct was not disorderly as a matter of law (S.F. III,

116-117). She brought an independent point of error on

appeal, arguing that her conduct was not disorderly as a

matter of law (Appellant’s Brief, 28-29; Appellant’s Reply

Brief, 1-9; Appellant’s Motion for Rehearing, 15-16; Peti-

tion for Discretionary Review, 6-9). The court of appeals

did not address this point of error. The court of appeals

held instead that petitioner’s argument that this is not a

case of selective prosecution was waived because it had

not been briefed (see App. 1, App. 4).

A selective-prosecution defense assumes that the

defendant was guilty of the crime charged. The defen-

dant’s guilt is not in issue; however, the defendant alleges

that others equally guilty were not prosecuted or treated

equally for the same offense. See e.g., United States v.

Armstrong, 518 U.S. __, 116 S.Ct. 1480 (1996).

In this case, petitioner contends that she committed

no crime. In that regard, the State admitted that peti-

tioner’s male companion “did not commit an offense”

(State Appellate Brief, 7). The court of appeals, however,

addressed this case as if petitioner solely defended based

on equal protection grounds, not addressing the point of

error that her conduct was not disorderly. Even if the

court of appeals is correct, that this is a selective-

prosecution case, petitioner met her burden of proof that

she was selectively prosecuted, and that she was denied

equal protection under the law.

The State cannot selectively prosecute where such

selective prosecution actually or purposefully discrimi-

nates against a member of a suspect class. Oyler v. Boles, |

368 U.S. 448, 456 (1962). “Classifications based upon gen- |

der, not unlike those based upon race, have traditionally |

j

|

Eee

been the touchstone for pervasive and often subtle dis-

crimination.” Personnel Administrator of Mass. v. Feeney,

442 U.S. 256, 273 (1970). “Our Nation has had a long and

unfortunate history of sex discrimination.” Frontiero v.

Richardson, 411 U.S. 677, 684 (1973). Thus, “classifications

based upon sex are inherently suspect, and must there-

fore be subjected to strict judicial scrutiny.” Id. at 688.

Therefore, when members of both sexes are engaged in

the same conduct, the State cannot prosecute a member of

one sex for such conduct and not the other.

In sex-based selective prosecution cases, it is not

necessary for the person charged to prove that the State

intended to discriminate. A showing of discriminatory

intent is not necessary when the equal protection claim is

based on overt discrimination. Wayte v. United States, 470

U.S. 598, 609 n.10 (1985); see also Strauder v. West Virginia,

100 U.S. 303 (1880). Where members of both sexes were

engaged in the saime conduct, and one was arrested for

such conduct but the other was not, overt discrimination

is obvious. Therefore, pursuant to Wayte, the person

charged need not show a discriminatory intent on the

part of the State. Accordingly, to prove that her right to

equal protection was denied through selective prosecu-

tion, petitioner only had to introduce evidence that she

was engaged in the same conduct as a man, and that she

was arrested for such conduct and the man was not.

Every witness testified that petitioner was not doing

anything differently than the man sitting with her, but

petitioner was arrested and the man was not. (S.F. III, P

10

63, L 2-11; P 72, L 25-P73, L 12; P 86, L 2-9; P 99, L 4-10; P

109, L 25-P 110, L 2; P 110, L 6-8; P 111, L 9-15.)

The arresting officer testified:

S.F. III, P 97, LL 15-19

Q: Did you see a male sitting next to the defendant

when you first made contact with the defendant?

A: Yes, I did. -

Q: And did you arrest that male?

A: No, I did not.

S.F. Ill, P 99, LL 4-6

So was Ms. Carreras doing anything differently

than the man that was with her?

A: Not to my knowledge, no, sir.

Contrary to the court of appeals’ holdings, this evi-

dence proves that a female was prosecuted when a male |

doing the same thing was not prosecuted under similar

circumstances, that a male could have been prosecuted

for the offense for which petitioner was charged, but was

not so prosecuted, and is direct evidence to prove peti-

tioner’s claim of denial of equal protection of the laws.

Because the State overtly discriminated against a member

of a suspect class, such selective prosecution was

improper under the United States Constitution. See Oyler,

368 U.S. at 456.

The disorderly conduct statute under which peti-

tioner was charged is gender neutral, that is, the statute

itself does not favor one gender over the other. However,

a law nondiscriminatory on its face may be grossly dis-

criminatory in its application. Williams v. Illinois, 399 U.S.

11

235, 242 (1970); Griffin v. Illinois, 351 U.S. 12, 17 n.11

(1956). The unequal application of a state statute to those

who are entitled to be treated alike is a denial of equal

protection. Snowden v. Hughes, 321 U.S. 1, 8 (1944); Yick

Wo v. Hopkins, 118 U.S. 356, 373-374 (1886).

Intentional discrimination by the State on the basis of

gender violates the Equal Protection Clause. J.E.B. v. Ala-

bama, 511 U.S. 127, 130-131 (1994). In United States v.

Virginia, 518 U.S. ___, ___, 116 S.Ct. 2264, 2274 (1996), the

Court held that in order to meet the requirements of the

Equal Protection Clause, the State must prove an “exceed-

ingly persuasive justification” to defend gender-based

government action. The Court issued a mandate that

must be followed by lower courts in reviewing gender-

based discrimination cases. As a standard of review, the

Court stated:

To summarize the Court’s current directions for

cases of official classification based on gender:

Focusing on the differential treatment . . . for

which relief is sought, the reviewing court must

determine whether the proffered justification is

“exceedingly persuasive.” The burden of justi-

fication is demanding and it rests entirely on the

State. Id., 116 S.Ct. at 2275 (emphasis added).

Therefore, the court below was required to determine

whether the State proffered an “exceedingly persuasive

justification” for discriminating against petitioner. How-

ever, the lower court did not mention the State’s obliga-

tion to prove an “exceedingly persuasive justification” in

its opinion. The court of appeals made no finding that the

State proffered any justification for its discriminatory

12

action. Therefore, the court of appeals did not follow the

required standard of review-in this case.

The only justification offered by the State for discrim-

inating against petitioner is that some individuals were

“offended” or “bothered” by her conduct. (State’s Brief 7;

S.F. III, 27, 33, 53, 55, 70, 82.) But the fact that some people

may be “offended” or “bothered” by -another’s conduct,

does not provide an “exceedingly persuasive justifica-

tion” which will allow the State to discriminate. See Cohen

v. California, 403 U.S. 15 (1971).

The Court stated in Cohen that the State may not

excise conduct of an individual it considers to be “offen-

sive,” upon the theory that it is likely to cause a violent

reaction or upon the assertion that the State may prohibit

such conduct as a guardian of public morality. 403 U.S. at

22. Nor may the State justify arresting persons engaged in

conduct that it considers to be offensive on the ground

that it did so in order to protect sensitive individuals. Id.

at 21. Sensitive individuals can “effectively avoid further

bombardment of their sensibilities simply by averting

their eyes.” Id.

Some may argue that petitioner’s conduct was in bad

taste. However, the government may not impose its

power to force persons to act in good taste. The Constitu-

tion leaves matters of taste largely to the individual. Id. at

25.

The court of appeals also imposed an erroneous bur-

den on petitioner by holding that petitioner must show a

“persistent failure to prosecute men as well as women.”

(App. 1, App. 10, emphasis added.) This holding is a

gross misstatement of the law, contrary to the holdings of

13

this Court. The court of appeals relied on State v. Johnson,

246 N.W.2d 503 (Wis. 1976),3 in which the Wisconsin court

held that to avoid prosecution on equal protection

grounds it must be shown that the prosecution was “per-

sistent.” Id. at 506. The Wisconsin court cited Yick Wo v.

Hopkins, 118 U.S. 356 (1886), and Reed v. Reed, 404 U.S. 71

(1971), as authority for this proposition. But neither of

these cases so hold!

In Snowden v. Hughes, 321 U.S. 1 (1944), the Court

ruled that “[s]tate action may be a purposeful denial of

equal protection, even though such action is neither sys-

tematic nor long-continued.” Id. at 9-10 (emphasis added).

“A consistent pattern of official discrimination is not a

necessary predicate to a violation of the Equal Protection

Clause.” Village of Arlington Heights v. Metro. Housing Div.,

429 U.S. 252, 266 n.14 (1977). “A single invidiously dis-

criminatory governmental act would not necessarily be

immunized by the absence of such discrimination in the

making of other comparable decisions.” Id. Therefore,

only one instance of gender-based discrimination is neces-

sary to prove a denial of equal protection. Thus, the court

of appeals required petitioner to meet a burden this Court

has held not to be required.

3 The court of appeals erroneously cited State v. Johnson in

its opinion as being found at 257 N.W.2d 503.

14

2. Petitioner Was Denied Due Process

A. The Lower Court Failed To Address Petitioner’s

Argument That Her Conduct Was Not Disor-

derly

Petitioner was convicted of disorderly conduct under

the Texas Disorderly Conduct Statute. See Tex. PENAL

Cope ANN. § 42.01(a)(2).4 During trial, petitioner moved

for an instructed verdict on the ground that her conduct

did not constitute disorderly conduct as a matter of law

(S.F. Ill, 116-117). The motion was denied. On appeal,

petitioner again argued that as a matter of law her con-

duct was not disorderly. (Appellant’s Brief 28-29; Appel-

lant’s Reply Brief 1-9; Appellant’s Motion for Rehearing

15-16; Petition for Discretionary Review 6-9.) The court of

appeals did not address this argument in its opinion. By

the lower court's failure to address this ground of appeal,

petitioner’s right to due process was violated. See U.S.

CONST. amend. XIV § 1. See also Snyder, 291 U.S at 105.

B. Petitioner’s Conduct Did Not Tend To Incite

Violence

Petitioner strongly urges that she was convicted

without proof of an essential element of the crime for

which she was charged.

4 Petitioner was not in direct violation of any statute. No

Texas law prohibits a woman from appearing in public

unclothed from the waist up.

15

Under the Texas Disorderly Conduct Statute a person

may be convicted only if he or she intentionally or know-

ingly makes an offensive gesture or display which tends

to incite an immediate breach of the peace. See Tex. PENAL

Cope Ann. § 42.01(a)(2). This Court has held that to bring

about a breach of the peace, the conduct in question must

tend to incite violence. Chaplinsky v. New Hampshire, 315

U.S. 568 (1942). The Court held in Chaplinsky, “The test is

what men of common intelligence would understand

would be words likely to cause an average addressee to

fight.” Id. at 573. To meet the constitutional test, there

must be a likelihood that the person addressed would

make an immediate violent response. See Gooding v.

Wilson, 405 U.S. 518, 528 (1972).

Thus, under this Court’s guidelines, a gesture or

display proscribed by section 42.01(a)(2) of the Texas

Penal Code must be conduct likely to incite violence.

However, there is not one shred of evidence that actual or

threatened violence occurred or was about to occur as a

result of petitioner’s conduct.

The only evidence offered by the State was that some

individuals were “offended” or “bothered” by peti-

tioner’s conduct. (S.F. II, 27, 33, 53, 55, 70, 82.) But the

fact that certain conduct may “bother” or “offend” others

is not tantamount to inciting violence.

The State may not excise conduct of an individual it

considers to be “offensive,” upon the theory that it is

likely to cause violent reaction or upon the assertion that

the State may prohibit such conduct as a guardian of

public morality. Cohen v. California, 403 U.S. 15, 22 (1971).

Where the State produces no evidence that anyone who

16

saw the defendant was in fact violently aroused or that

the defendant intended such a result, the defendant can-

not be convicted of disturbing the peace. Id., 403 U.S. at

20.

Under Texas law, actual or threatened violence is an

essential element of a breach of the peace. Woods v. State,

213 S.W.2d 685, 687 (Tex. Crim. App. 1948); Head v. State,

96 S.W.2d 981, 982 (Tex. Crim. App. 1936). The State

produced no evidence to show that petitioner’s conduct

caused actual or threatened acts of violence. There is no

evidence that anyone who saw petitioner was in fact

violently aroused or that petitioner intended such a

result. Therefore, the State did not prove an essential

element upon which to base a conviction of disorderly

conduct.

Because the State’s proof did not meet an essential

element for a conviction of disorderly conduct, petitioner

moved for an instructed verdict that her conduct was not

disorderly as a matter of law. Under Texas law, an attack

on the denial of a motion for instructed verdict is an

attack on the legal sufficiency of the evidence. Madden v.

State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1991); Reynolds

v. State, 848 S.W.2d 785, 789 (Tex. App. - Houston [14th

Dist.] 1993, pet. ref’d).

The Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt

of every fact necessary to constitute the crime with which

the accused is charged. In re Winship, 397 U.S. 358, 364

(1970). A conviction based upon a record wholly devoid

of any relevant evidence of a crucial element of the

————e———eee

17

offense charged violates due process. Jackson v. Virginia,

443 U.S. 307, 314 (1979).

Because the State failed to prove an essential element

of a breach of the peace, that is, that petitioner’s conduct

caused actual or threatened violence, the failure to grant

petitioner’s motion for an instructed verdict and the affir-

mance of her conviction by the court of appeals violated

her right to due process under the Fourteenth Amend-

ment.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

Date W. FELTON

Counsel of Record for Petitioner,

Angelina Anita Carreras

FELTON & ASSOCIATES

1177 West Loop South

Suite 1450

Houston, Texas 77027

713/840-7700

Telecopier: 713/840-8802

and

TimotHy A. HooTMAN

P. O. Box 53452

Houston, Texas 77052-3452

713/942-9838