Texas Appeals Court upholds dismissal of Houston Co. flag desecration case

Texas Appeals Court upholds dismissal of Houston Co. flag desecration case
Source: Houston County Attorney
Source: Houston County Attorney

AUSTIN, TX (KTRE) - On Wednesday, the Texas Court of Criminal Appeals handed down a decision that upheld a lower court's decision to dismiss a Houston County case in which a Bedias man threw a US flag into the road, where it was destroyed by passing vehicles in 2012.

"We conclude that the Texas-flag desecration statute, by its text and actual fact, prohibits a substantial amount of activity that is protected by the First Amendment, judged in relation to its legitimate sweep," the court's ruling states. "Consequently, we hold that the Texas-flag statute is facially invalid because it is unconstitutionally overboard in violation of the First Amendment."

In the ruling in favor of Terence Johnson, the Texas Court of Criminal Appeals justices cited Texas v. Johnson, a 1989 US Supreme Court case in which the court ruled that the prosecution of Gregory Lee Johnson under the Texas flag-desecration statute was unconstitutional because it violated the First Amendment.

The 12th Court of Appeals passed the case on to the high court. Johnson's defense attorney argued that he was upset about comments a vendor made and was exercising his right to freedom of speech.

Houston County Attorney Daphne Session said she was surprised of the outcome.

"The County Attorney's Office does not agree with the majority opinion of the Court of Criminal Appeals," Session said. "It is the intent of the County Attorney's Office to submit a motion for rehearing to request the Court of Criminal Appeals to reconsider their decision."

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," said then-Houston County District Daphne Sessions said. "It's not just a rag or a piece of paper."

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