HOUSTON COUNTY, TX (KTRE) - A case that now has been turned down in two courts has been given another chance.
Houston County Attorney Daphne Session confirmed that a 2012 case involving an American flag being thrown in the road and destroyed by passing vehicles will be heard by the Texas Court of Criminal Appeals.
Terence Johnson of Bedias is being charged with destruction of the US flag. Johnson argued that he was upset about comments a vendor made and was practicing freedom of speech.
Sessions said it is an accomplishment to get heard by the court because about only 85 cases are selected each year.
In 2012, authorities arrested Johnson for destruction of the US flag, a Class A misdemeanor. According to an arrest affidavit, surveillance video from Broxson Hardware, located at 120 South Commerce St., shows Johnson pull an American flag from its mount and throw it onto State Highway 19 and into oncoming traffic.
"I was angry and disappointed," co-owner Tinker Broxson said. "He acted so brave about it, like it didn't mean anything to him."
In December of that same year, a Houston County judge approved an order dismissing a charge against Johnson. Houston County Court-at-Law Judge Sarah Tunnell Clark's order states the charge against Terence Dwayne Johnson, 21, is unconstitutional, according to higher court decisions.
"I don't know of any prosecutors in the state of Texas that are trying to prosecute people who are protesting, burning flags in protest," said Assistant County Attorney Amber Bewley.
In 2014, the state took the case to the Texas 12th District Court of Appeals in Tyler. The Court of Appeals released an opinion stating that Johnson's behavior was not speech protected by the First Amendment. The Court of Appeals decided the destruction of flag statute is over broad and therefore unconstitutional. After a first appeal, Session's filed another motion with the court and was denied a second time.
"Our stance is that the law criminalizes the non-protected speech which is what happened in this case," Bewley said.
Investigator Buck Carroll worked the case for the Houston County Sheriff's office and said there is a fine line between freedom of speech and destruction of the flag.
"When you just take a flag and are mad at someone else that has nothing to do with anything and you snatch it off the wall and you throw it into the middle of the highway to be run over and destroyed," Carroll said. "There is no freedom of speech. What is your point?"
Session said she understands that tax payers might get upset that they are continuing to pursue the case, but she argued that it is a matter of morals.
"It's our flag, and our flag is something we all stand for," Sessions said. "It's not just a rag or a piece of paper."
Session said that in May, the County Attorney's Office submitted their brief to the Court of Criminal Appeals. She added that Johnson's attorney submitted his brief this week.
"The Court of Criminal Appeals has agreed to hear oral arguments in the case, so now we wait for the argument to be set," Session said.
To read the petition, click here.
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