Texas Stamp


PD-1066-17 01/24/2018

(1) “Does an information that tracks the language of section 42.01(a)(8) provide a defendant sufficient notice that he displayed a firearm in a manner calculated to alarm?”

(2) “Did the court of appeals err by applying a First Amendment and Fourteenth Amendment rule to a Sixth Amendment complaint?”

(3) “Is the term ‘alarm’ within the context of section 42.01(a)(8) inherently vague?”

Ross was charged with disorderly conduct by displaying a firearm in public. The State’s information tracked the statutory language for Tex. Penal Code § 42.01(a)(8): intentionally or knowingly displaying a firearm in a public place in a manner calculated to alarm. It also specified the particular public place where Ross displayed the firearm. Ross moved to quash the information. He argued that, in an open-carry state, merely tracking the statutory language failed to provide sufficient Sixth Amendment notice of the specific conduct or acts the State would rely upon to show his manner of displaying the firearm was “calculated to alarm.” He asserted that the term “alarm” was vague. The trial court agreed and quashed the information.

The State appealed. The court of appeals affirmed the trial court’s decision to quash. It recognized that tracking the statutory language is ordinarily sufficient, but that more specificity is required when a term is so vague or indefinite as to deny the defendant effective notice of the acts he allegedly committed. Among the cases the court of appeals considered were First Amendment cases determining whether the word “alarm” renders a statute unconstitutionally vague because the standard for assessing when a violation of the statute had occurred could not be ascertained. The court noted that, because a person is entitled to openly display a firearm in public, he is entitled to notice of how his manner of display was calculated to alarm so that he can prepare a defense.

The State contends that “alarm” in this statute is not vague. The statute does not require any person to be alarmed but only that the defendant calculate to alarm others by his display of a firearm. In this context, “alarm” means causing fear that the defendant will discharge the weapon or threaten to discharge it. The State asserts that it need not allege what particular conduct Ross engaged in while displaying the firearm because that is an evidentiary matter. The State also argues that the court of appeals confused the First Amendment notice that the legislature owes the public so they may have fair notice of what conduct is prohibited by law and the Sixth Amendment notice the prosecution owes a defendant to know what he is being charged with. The court of appeals does not purport to find the statute unconstitutionally vague.  In any event, it is not unconstitutionally vague because the requirement that the defendant must calculate to alarm provides assurance that the statute will not be haphazardly applied.

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