COURT OF CRIMINAL APPEALS
755 S.W.2d 92 (1988)
[**1] Petition for Discretionary Review from the Court of Appeals, Fifth Supreme Judicial District of Texas, Dallas County.
Stanley I. Weinberg and Douglas W. Skemp for appellant. Henry Wade, Former D.A. & John Vance, D.A. & Kathi Alyce Drew, John D. Nation & Mike Gillett, Asst. D.A.'s, Robert Huttash, State's Attorney, for State.
En Banc. Campbell, J. Justices P.J. Onion, J. Davis, J. P.J. Onion and J. Davis dissent for the reason that they believe the Court of Appeals was correct. McCormick and Miller dissent.
OPINION BY: CAMPBELL
[*93] OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
convicted, after a jury trial, of desecration of a venerated object. V.T.C.A.,
42.09(a)(3). n1 Punishment was assessed at one year's confinement in the Dallas
County Jail and a $ 2,000 fine. The Dallas Court of Appeals affirmed. Johnson
v. State, 706 S.W.2d 120 (Tex.App. -- Dallas 1986). We granted the appellant's
petition for discretionary review to determine (1) whether V.T.C.A. Penal Code,
violates Art. I, sec. 8 of the Texas Constitution or the First Amendment to
the United States Constitution, and (2) whether the prosecutor's closing argument
during the punishment phase of the trial denied appellant a fair trial. n2 We
hold that the First Amendment to the U.S. Constitution obviates appellant's
conviction under section 42.09(a)(3) and we will remand. [**2]
n1 Sec. 42.09 Desecration of Venerated Object.
(a) A person commits an offense if he intentionally or knowingly desecrates: . . .
(3) A state or national flag.
(b) For purposes of this section, "desecrate" means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.
n2 The reason review was granted is found in Tex.R.App.Pro. 200 (c)(2 & 3).
Appellant was arrested during the Republican National Convention in Dallas on August 22, 1984. He was involved with a series of demonstrations against the policies of the Reagan Administration and the Republican Party. These protests culminated with a rally in front of the Dallas City Hall with the burning of an American flag and political chants. The record indicates [*94] that these demonstrations were not violent and that police officers and representatives of the news media were present. After the flag had been burned, a spectator gathered the remains for burial in his backyard. Approximately 30-45 minutes later, more Dallas police arrived to arrest appellant and several other demonstrators. n3
n3 On the same day as appellant's arrest, a number of demonstrators burned the national flag of a foreign country. This action lead to a physical brawl; nevertheless, no arrests under section 42.09 were made in connection with the incident.
The Court of Appeals rejected appellant's claim that section 42.09 is impermissibly vague, holding that the statute gives adequate warning as to what conduct is prohibited. That court also found that appellant's conduct amounted to protected speech, within the meaning of the First Amendment, but, relying on Deeds v. State, 474 S.W.2d 718 (Tex.Cr.App. 1971), n4 found that the State's interest in regulating this symbolic speech outweighed appellant's First Amendment rights. n5
n4 Today, Deeds, supra, is no longer adequate authority. Our holding in Deeds that former Article 152, Vernon's Ann.P.C. was consistent with the test for regulation of symbolic speech enunciated in U.S. v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968), has been rejected by the Supreme Court. Spence v. Washington, 418 U.S. 405, 414 n.8, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974). The Supreme Court reached this result because a State's interest in preserving the flag as a national symbol focuses on the communicative aspect of flag desecration, that of denigrating the nation and, specifically, the flag as its icon. Id. In addition, the Supreme Court's most recent pronouncement on overbreadth analysis in First Amendment contexts suggests that our refusal in Deeds to consider overbreadth is untenable today. See Boos v. Barry, 485 U.S. 312, 108 S. Ct. 1157, 99 L. Ed. 2d 333, 56 U.S.L.W. 4254 (1988).
This Court's other major discussion of former article 152 occurred in Delorme v. State, 488 S.W.2d 808 (Tex.Cr.App. 1973). Like Deeds, the Delorme decision is of questionable value today. In addition to relying on Deeds, the Delorme opinion followed a number of cases from other jurisdictions. State v. Van Camp, 6 Conn. Cir. 609, 281 A.2d 584 (1971); Commonwealth v. Goguen, 361 Mass. 846, 279 N.E.2d 666 (1972) (conviction later reversed as violative of the First Amendment sub. nom. Smith v. Goguen, 415 U.S. 566, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974)); State v. Kasnett, 30 Ohio App. 2d 77, 283 N.E.2d 636 (1972), rev'd 34 Ohio St. 2d 193, 297 N.E.2d 537 (1973). Of the cases expressly followed in Delorme, only Van Camp, supra, decided by an intermediate appellate court in Connecticut, has not been overturned by a higher court. [**4]
n5 The Dallas court also rejected points of error concerning the admission of video tape depictions of extraneous misconduct by others, a jury instruction on the law of parties, admission of appellant's prior convictions, and the prosecutor's argument during the punishment phase of the trial. Although we granted review on the question concerning the jury argument, none of these points are relevant to our ultimate disposition of this case.
In his petition for discretionary review, appellant reurges his arguments made in the Court of Appeals on the constitutionality of the statute under which he was convicted. n6 This argument asserts vagueness and overbreadth as reasons for declaring section 42.09 unconstitutional. The State asserts two interests in support of section 42.09(a)(3): (1) to prevent breaches of the peace and (2) to preserve the flag as a symbol of national unity and counters by restating the positions advanced by the Court of Appeals.
n6 In the Court of Appeals, appellant assigned eight separate points of error on the issue of free speech. Of these eight points, half were based exclusively on Texas law. The Court of Appeals grouped these eight points together and purportedly decided them on both state and federal grounds. Their analysis, however, depended completely on cases which applied only the federal constitution. Despite that court's claim to have disposed of the State law issues, those questions are yet to be decided.
When a Court of Appeals is presented with both state and federal bases for a proposition of constitutional law and fails to address the state law aspects of the question, this Court's procedure is to review the correctness of the Court of Appeal's application of federal law and then remand, if necessary, for a determination of the state law issues. McCambridge v. State, 712 S.W.2d 499, 501-02 n.9 (Tex.Cr.App. 1986). We will not, therefore, address article I, sec. 8 of the Texas Constitution in this opinion.
In analyzing a symbolic speech question, the proper methodology requires the reviewing court to first determine whether a defendant's acts fall within the First Amendment. See, e.g., Spence v. Washington 418 U.S. 405, 94 S. Ct. 2727, 41 [*95] L. Ed. 2d 842 (1974); Tinker v. Des Moines Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969); Monroe v. State Court of Fulton Co., 739 F.2d 568 (11th Cir. 1984); c.f. United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968). The Dallas court held that, by burning a flag, appellant "intended to convey a particularized message . . . and that this message was very likely to be understood by those who viewed it." Johnson, supra at 123. There is no reason for us to reach a different conclusion. The United States Supreme Court has held a number of activities to be protected "speech." Spence, supra (affixing a peace symbol to a flag); Tinker, supra (wearing of black arm bands); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 632-34, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943) (not saluting the flag being protected by the First Amendment's speech provision); c.f. O'Brien, supra (Court refusing [**6] to decide whether draft card burning is speech). Given the context in which appellant burned the flag, "it would have been difficult for the vast majority of citizens to miss the drift of appellant's point at the time that he made it." Spence, supra 418 U.S. at 410. Conduct falls within the ambit of the First Amendment when the actor shows "an intent to convey a particularized message . . . and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it." Id. at 410-11. Given the context of an organized demonstration, speeches, slogans, and the distribution of literature, anyone who observed appellant's act would have understood the message that appellant intended to convey. The act for which appellant was convicted was clearly "speech" contemplated by the First Amendment.
Falling within the umbrella of First Amendment protection will not shield speech from all government regulations. E.g., Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981); Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981); Adderley v. Florida, 385 U.S. 39, 87 [**7] S. Ct. 242, 17 L. Ed. 2d 149 (1966). Therefore, we must undertake to weigh the interests which the State asserts in support of section 42.09(a)(3).
The first interest averred offered by the State is the prevention of breaches of the peace which would likely be attendant to acts of flag desecration. A State may prevent breaches of the peace by limiting speech. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942); see also Ex parte Meckel, 87 Tex.Cr.R. 120, 220 S.W. 81 (1919). Legitimacy of a State interest, however, is not enough to bring the regulation of protected speech into compliance with First Amendment protection. The Supreme Court has repeatedly held that restrictions on speech must be very carefully tailored to meet a state's legitimate interests. n7
n7 O'Brien, supra at 377 (A "government regulation is sufficiently justified . . . if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.") (all emphasis is the author's unless otherwise noted). Barnette, supra at 639 ("The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a "rational basis" for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect."). See also Boos v. Barry, 485 U.S. 312, 108 S. Ct. 1157, 99 L. Ed. 2d 333, 56 U.S.L.W. 4254, (1988) (discussed infra at page 96).
Limiting the criminalization of flag desecration to incidents where it is likely to cause "serious offense" is a proper step toward narrowly tailoring the statute to the State's interest. Still, section 42.09(a)(3) is so broad that it may be used to punish protected conduct which has no propensity to result in breaches of the peace. "Serious offense" does not always result in a breach of the peace. The protest in this case did not lead to violence. As with most other protests of this nature, police were present at the scene. A witness was obviously "seriously offended" by appellant's [*96] conduct because he gathered the burned flag and buried it at his home; nevertheless, though "seriously offended", this man was not moved to violence. "Serious offense" occurred, but there was no breach of peace nor does the record reflect that the situation was potentially explosive. One cannot equate "serious offense" with incitement to breach the peace.
When a statute which restricts speech is under attack for overbreadth, the existence of another legislative alternative which would further the goal of the challenged statute may be used to prove that the challenged statute is overbroad. Very recently, [**9] the Supreme Court decided a challenge to an ordinance in the District of Columbia. Boos v. Barry, 485 U.S. 312, 108 S. Ct. 1157, 99 L. Ed. 2d 333, 56 U.S.L.W. 4254, (1988). The ordinance made it unlawful to, within 500 feet of a foreign embassy, display any sign that tends to bring the foreign government into "public odium or public disrepute." Noting that Congress had provided a less restrictive alternative, 18 U.S.C. 112 (b)(2), which served the same interest as the challenged ordinance, the Court wrote:
We conclude that the availability of alternatives such as 112 amply demonstrates that the display clause is not crafted with sufficient precision to withstand First Amendment scrutiny. It may serve an interest in protecting the dignity of foreign missions, but it is not narrowly tailored; a less restrictive alternative is readily available. Thus, even assuming for present purposes that the dignity interest is "compelling," we hold that the display clause of 22-1115 is inconsistent with the First Amendment.
Boos, supra 56
U.S.L.W. at 4259.
For example, section 42.01 of the penal code states:
(a) A person commits an offense if he intentionally or [**10] knowingly:
(1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace;
(2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace. . . .
V.T.C.A. Penal Code, 42.01 (emphasis added). The existence of a statutory scheme other than section 42.09 which addresses the same basic interest in a less restrictive manner indicates that the legislature is aware of and able to implement an alternative to the language of section 42.09. Section 42.01, like section 112 in Boos, proves that the challenged statute, as it relates to breaches of the peace, is too broad for First Amendment purposes.
The second interest asserted by the State is that of preserving the flag as a symbol of unity. In Spence, supra, the Court refused to decide the validity of a state's interest in preserving the flag as a national symbol. Id. 418 U.S. at 413-14. Instead, the Court assumed arguendo the validity of the interest, and held Washington's flag misuse statute to be unconstitutional. Id. at 414-15. n8 The Supreme [**11] Court specifically reserved judgment on the question of flag desecration. This indicates that precedent prior to Spence does not necessarily require rejecting the State's interest in preserving the flag as a symbol. There is some precedent, however, which seems to indicate the weight this interest might be given in a balancing process.
n8 Spence had been prosecuted for violating Washington's misuse statute. This statute forbade affixing any mark, word, picture, design, etc. to a flag. The State of Washington also criminalized flag desecration. This provision is in a separate section, however, and Spence was not charged with its violation. Id. at 406-07. The Court specifically reserved the question of protecting the flag as a symbol from desecration. Id. at 415.
In Barnette, supra, the parents of a child complained of a West Virginia law requiring children to salute the flag and recite the Pledge of Allegiance. Failure to comply resulted in suspension from school. The goal of the West Virginia statute was to promote national unity. In order for [*97] this interest to be sufficient to abridge activity protected by the First Amendment, it must be necessary to prevent [**12] "grave and immediate danger" to that interest. n9 In testing this asserted state interest we will examine its propriety and then the immediacy of the danger to the interest.
n9 See note 5, supra, for the full text of this standard.
The interest asserted in Barnette is distinguishable from the State's desire to preserve the flag as a symbol of national unity. The two goals, however, are sufficiently similar that the Supreme Court's discussion of promoting national unity is relevant to our decision. Justice Jackson wrote:
To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as [**13] to things that touch the heart of the existing order.
there is any fixed star in our constitutional constellation, it is that no official,
high or petty, can prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion or force citizens to confess by word or
act their faith therein. If there are any circumstances which
permit an exception, they do not now occur to us.
Id. 319 U.S. at 641-42. Recognizing that the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent.
If the State has a legitimate interest in promoting a State approved symbol of unity, that interest is not so compelling as to essentially license the flag's use for only the promotion of governmental status quo. In its brief, the State does not aver why the American flag is in such "grave and immediate danger" of losing the ability to rouse feelings of unity or patriotism such [**14] that section 42.09(a)(3) is "essential" to prevent its devaluation into a meaningless piece of cloth. We do not believe such a danger is present. Because Barnette, O'Brien, and Boos would require such a threat in order to uphold violations of federal free speech guarantees, we must hold that the interest of providing a symbol of unity is inadequate to support section 42.09(a)(3).
We hold that section 42.09(a)(3) may not be used to punish acts of flag desecration when such conduct falls within the protections of the First Amendment. We express no view as to whether the State may prosecute acts of flag desecration which do not constitute speech under the First Amendment. Because of this holding, we will not reach the portions of the appellant's argument which challenge the facial validity of the statute on grounds of vagueness. This Court will not pass on the facial constitutionality of a statute unless it is absolutely necessary for the disposition of the case. See generally Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972). Thus, our holding that the statute is unconstitutional as applied to this appellant renders a facial determination [**15] unnecessary. In addition, we need not reach appellant's contention concerning the prosecutor's jury argument in the punishment phase of the trial. n10
n10 It may appear anomalous that we have decided the constitutionality of the section 42.09(a)(3), as applied, before reaching the jury argument ground for review. It should be noted that this alleged error occurred during the punishment phase of the trial. A reversal on this point would not affect the validity of appellant's conviction. Instead, it would merely result in a remand to the trial court for a new hearing on punishment. Art. 44.29(b) V.A.C.C.P. Thus, a complete disposition of this case requires us to first decide the validity of the conviction and then to proceed, if necessary, to punishment.
The judgments of the Court of Appeals and the trial court are reversed and the
cause is remanded to the trial court for dismissal of the information.
P.J. Onion and J. Davis dissent for the reason that they believe the Court of Appeals was correct.
J. McCormick dissents.
DISSENT: MILLER, J., dissenting.
I do not agree with the majority that the State's interest in providing the flag as a symbol of unity is inadequate to support [**16] Sec. 42.09(a)(3), V.A.P.C. I find the discussion of the symbolism of the flag in this Court's unanimous opinion in Deeds v. State, 474 S.W.2d 718 (Tex.Cr.App. 1972), both viable and highly persuasive, and I would apply the rationale of that case to the present cause.
Deeds, supra, we held that the State had a right to regulate the nonspeech aspect
of the burning of the flag of the United States. See Deeds, supra at 721, citing
United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968).
In considering the Deeds discussion about our national flag and the facts of
this flag desecration case, I believe the regulation of appellant's nonverbal
conduct, albeit admittedly symbolic speech, under Sec. 42.09(a)(3) is justified.
The valid State interest of preserving the flag as a symbol of national unity
clearly, in my view, supersedes whatever first amendment rights this appellant
sought to assert. See dissenting opinions of Chief Justice Warren and Justices
Black, Fortas, and White, in Street v. New York, 394 U.S. 576, 89 S. Ct. 1354,
22 L. Ed. 2d 572 (1969); Halter v. Nebraska, 205 U.S. 34, 51 L. Ed. 696, 27
S. Ct. 419 (1907). As noted in Deeds, supra:
"Since the flag symbolizes the entire nation, not just one particular political philosophy, [**17] the state may determine that it be kept above the turmoil created by competing ideologies." (emphasis supplied)
Though it may not pass muster in other fact situations or under other statutes, see e.g. Smith v. Goguen, 415 U.S. 566, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1973), Sec. 42.09, supra, passes constitutional muster in its application to destroying a United States flag, even as an exercise of "speech", in a manner "the actor knows will seriously offend" persons observing the action. Section 42.09, supra, is here being narrowly applied to a fact situation involving total destruction of the United States' national symbol. I do not agree that the statute is unconstitutional as applied to appellant or that he has grounds to make such challenge. Cf. Briggs v. State, 740 S.W.2d 803 (Tex.Cr.App. 1987) (defendant must show that statute is unconstitutional as applied to him in his situation).
OF CRIMINAL APPEALS FOR THE FIFTH DISTRICT OF TEXAS,
706 S.W. 2d 120 (1986)
Rehearing Denied February 25, 1986.
From County Criminal Court Number Eight of Dallas County, Texas.
I. Weinberg, Dallas, Texas for plaintiff.
John Nation, Dallas, Texas, for the State of Texas.
Justices Vance, Maloney, and McClung. Opinion By Justice Vance.
OPINION BY: VANCE
[*122] Gregory Lee Johnson appeals from a jury trial conviction for desecration of a venerated object. During the Republican National Convention, Johnson set fire to a United States flag in front of Dallas City Hall, during the course of an anti-Reagan rally. The jury assessed punishment at one year's confinement in county jail and a $2,000.00 fine.
In fourteen grounds of error, Johnson contends that: (1-8) Section 42.09 of the Texas Penal Code violates the First Amendment to the United States Constitution, Article I, Sec. 8 of the Texas Constitution, and Article 1.16 of the Texas Code of Criminal Procedure as an unconstitutional restraint on Johnson's right to free speech; (9) the trial court erred in instructing the jury on the law of parties; (10-11) the trial court erred in admitting into evidence a videotape depicting extraneous conduct of other persons and in refusing to grant a limiting instruction on it; (12) the trial court erred during the punishment stage in admitting, over objection, evidence of Johnson's prior convictions which were never disclosed to Johnson in violation of the trial court's disclosure order; (13) the trial court erred by overruling Johnson's objection to the prosecutor's jury argument during punishment; and (14) the trial court erred in overruling Johnson's objection to the prosecutor's closing argument. Because we find no error, we affirm the judgment of the trial court.
In grounds of error one through eight, Johnson contends that the application of section 42.09 of the Texas Penal Code is unconstitutionally vague, unconstitutionally overbroad, and violative of his first amendment rights. The statute provides:
(a) A person commits
an offense if he intentionally or knowingly desecrates:
(1) a public monument;
(2) a place of worship or burial; or
(3) a state or national flag.
(b) For purposes of this section, "desecrate" means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.
(c) An offense under this section is a Class A misdemeanor.
Johnson claims that the statute is unconstitutionally vague because "desecration" depends upon the sensibilities of persons likely to observe the action. A statute that either forbids or requires the doing of an act in terms so vague that people of common intelligence must guess as to its meaning and differ as to its application lacks the first essentials of due process. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979). However, due process merely requires that the law give sufficient warning so that people may conduct themselves so as to avoid that which is forbidden. McCarty v. State, 616 S.W.2d 194, 196 (Tex. Crim. App. 1981). Due process does not demand that the words used in a statute be specially defined. 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. Floyd v. State, 575 S.W.2d 21, 23 (Tex. Crim. App. 1978). Here, the relevant terms of the offense, "deface," "damage," and "physically mistreat" are all well understood terms. The act of burning the United States flag would clearly constitute desecration under the statute.
Johnson also contends that the statute is unconstitutionally overbroad. A statute is overbroad when it prohibits both activity which is protected by the constitution and activity which is not. Baker v. State, 478 S.W.2d 445, 448 (Tex. Crim. App. 1972). Johnson's argument is without merit. While the flag burning did occur during a political protest rally, the statute in no way prohibited legitimate protest activities.
Johnson further urges that the statute violates his rights to free speech under the [*123] First and Fourteenth Amendments. In Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974), the Supreme Court adopted a two-part analysis for flag desecration cases: the appellate court must determine, first, whether the conduct is protected under the First Amendment; and second, whether, upon the record of the given case, the interests advanced by the state are so substantial as to justify infringement of appellant's constitutional rights. Monroe v. State Court of Fulton County, 739 F.2d 568, 573 (11th Cir. 1984).
Thus, we must first determine whether Johnson's act of burning the flag is constitutionally-protected free speech. On appeal, the State does not dispute this. Nonverbal expression may be a form of free speech entitled to first amendment protection. See Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974) (attaching peace sign to a flag is a form of free speech); Tinker v. Des Moines School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969) (wearing black armbands in school is akin to pure speech).
To determine whether Johnson's conduct is entitled to First Amendment protection, we must consider "the nature of appellant's activity combined with the factual context and environment in which it was undertaken." Spence v. Washington, 418 U.S. 405, 409-10, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974). If appellant shows "an intent to convey a particularized message . . . and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it," Spence, at 410-11, then the activity is protected speech under the First and Fourteenth Amendments. Monroe v. State Court of Fulton County, 739 F.2d 568, 571 (11th Cir. 1984).
Here, Johnson was convicted of burning the United States flag during a public demonstration protesting the policies of President Ronald Reagan and the Republican Party during the 1984 Republican National Convention. The record reflects that Johnson and his fellow protesters participated in anti-Reagan chants and "die-ins," as well as burning the flag in front of Dallas City Hall. This suggests that Johnson intended to convey a particularized message, his dissatisfaction with the Reagan Administration's policies, and that this message was very likely to be understood by those who viewed it. See Monroe v. State Court of Fulton County, 739 F.2d 568, 572 (11th Cir. 1984). Johnson's act was not one of "mindless nihilism." Spence, 418 U.S. at 410. Therefore, we conclude that Johnson's act of burning the flag constituted symbolic speech requiring First Amendment scrutiny.
Next, we must determine, given the record before us, whether the interests advanced by the State are so substantial as to justify infringement of Johnson's constitutional rights. The State advances two interests: preventing breaches of the peace and protection of the flag as a symbol of national unity.
The first substantial interest asserted by the State is to prevent breaches of the peace. This is a valid state interest. Street v. New York, 394 U.S. 576, 590-92, 89 S. Ct. 1354, 22 L. Ed. 2d 572 (1969). Some courts have concluded that an act of flag desecration by itself is insufficient provocation to infringe upon First Amendment rights; they require objective evidence of imminent public unrest. Monroe v. State Court of Fulton County, 739 F.2d 568, 575 (11th Cir. 1984); Sutherland v. DeWulf, 323 F. Supp. 740, 745 (S.D. Ill. 1971). Other courts have held that acts of flag desecration are, of themselves, so inherently inflammatory that the State may act to prevent breaches of the public peace. Deeds v. State, 474 S.W.2d 718, 721 (Tex. Crim. App. 1971); Radich v. Criminal Court, 385 F. Supp. 165, 180-82 (S.D.N.Y. 1974). We choose to follow the Texas Court of Criminal Appeals in preferring the latter view. Thus, the statute is a legitimate and constitutional means of protecting the public peace.
[*124] The second substantial interest asserted by the State is the preservation of the flag as a symbol of national unity. The flag has been held to be a "unifying factor" which "facilitates a citizen's identification with his country." Monroe, 739 F.2d at 574. The Texas Court of Criminal Appeals has also found the flag to be a symbol of national unity. Deeds v. State, 474 S.W.2d 718, 720-21 (Tex. Crim. App. 1971). While the State has no legitimate interest in compelling respect for the flag, see West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), we disagree with the Eleventh Circuit in Monroe and hold that the State does have a legitimate and substantial interest in protecting the flag as a symbol of national unity. Thus, we hold that section 42.09 is constitutional. Johnson's grounds of error one through eight are overruled.
In his ninth ground of error, Johnson contends that the trial court erred in instructing the jury on the law of parties. The instruction was submitted without objection. Johnson claims the instruction constituted egregious harm because there was no evidence to support this theory. To require reversal the harm must be so egregious as to have denied Johnson "a fair and impartial trial." Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). We must look at the degree of the harm in light of the entire jury charge, the evidence and the record as a whole. Almanza, 686 S.W.2d at 177.
The State's evidence showed that Johnson burned the flag by himself. The jury charge includes an application paragraph conditioning Johnson's guilt on a finding that he acted alone or as a party. The record reflects that the bulk of the State's argument was premised on Johnson's culpability as a sole actor. Thus, it is unlikely that the jury was misled by the instruction.
Johnson also claims that the instruction impermissibly shifted the burden of proof, citing Allen v. State, 686 S.W.2d 685 (Tex. App. -- San Antonio February 13, 1985). However, this case was decided before Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) and might have been decided differently if analyzed under Almanza. Here, the evidence shows more than Johnson's guilt as a party; it shows his guilt as a sole actor. The burden of proof was not shifted, and no egregious harm occurred. Johnson's ninth ground of error is overruled.
In his grounds of error ten and eleven, Johnson alleges that the trial court erred in admitting into evidence a videotape depicting extraneous conduct of other persons and refusing to give a limiting instruction on it. The trial court admitted a videotape, Exhibit 11, consisting of police and television news films of the protest activities. News commentary was excised from the film, and the videotape was played without any sound. As a general rule, the State is allowed to show the facts and circumstances surrounding the offense, in order to put it in context before the jury. Jackson v. State, 575 S.W.2d 567, 570 (Tex. Crim. App. 1979). After reviewing the videotape, we do not find it to be inherently prejudicial; we do find it to be relevant to establishing the context of the offense. See, Maddox v. State, 682 S.W.2d 563 (Tex. Crim. App. 1985). Because the acts of other persons depicted in the videotape were part of the res gestae of Johnson's offense, no limiting instruction was required. Archer v. State, 607 S.W.2d 539, 542 (Tex. Crim. App. 1980). Johnson's tenth and eleventh grounds of error are overruled.
In his twelfth ground of error, Johnson contends the trial court erred, during punishment, in admitting, over his objection, evidence of Johnson's prior convictions which were never disclosed to Johnson in violation of the trial court's disclosure order. However, Johnson has waived any error regarding this contention due to his failure to seek a postponement or a continuance in response to the unexpectedly offered convictions. Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982). Johnson's twelfth ground of error is overruled.
his thirteenth ground of error, Johnson complains of error in the prosecutor's
[*125] jury argument. During his final argument at punishment the prosecutor
And you know that he's also creating a lot of danger for a lot of people by what he does and the way he thinks. What did Mr. Walker tell you from the evidence he would have done had he been there? He would have tried to stop it. What would this man with a gun on his chest [referring to his tee-shirt's logo] and his running buddies have done to Mr. Walker if he tried to stop it.
Johnson's objection to the argument on the basis that it called for speculation and was unsupported by the evidence was overruled. To require reversal allegedly improper argument must be extreme or manifestly improper or inject new and harmful facts into the record. Brooks v. State, 642 S.W.2d 791, 798 (Tex. Crim. App. 1982). Here, the prosecutor's argument speculated on the possibility that Johnson's conduct could have led to a breach of the peace. Because the argument did not clearly speculate that Johnson would have committed acts of violence, it is not so manifestly improper as to require reversal. Johnson's thirteenth ground of error is overruled.
his fourteenth ground of error, Johnson again complains of improper jury argument.
During punishment, the prosecutor argued:
That when it comes to destroying and enjoying destroying the symbol of our country that is offensive and it's serious as far as every American is concerned, and when you go back into that jury room you represent each and everyone of them; and don't forget it.
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