Opinion
No. 05-02-01863-CR
Opinion issued October 23, 2003. Do Not Publish Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F02-32164-KI AFFIRMED
Before Justices MORRIS, O'NEILL, and LANG.
OPINION
After the trial court denied his motion to quash the indictment, Michael Wayne Williams pleaded guilty to retaliation. He now contends on appeal that the trial court erred by denying his motion to quash because the indictment fails to allege an offense and the retaliation statute is unconstitutional as applied to him. Concluding appellant's arguments are without merit, we affirm the trial court's judgment. The amended indictment in appellant's case alleged he did:
unlawfully . . . intentionally and knowingly harm and threaten to harm [the complainant] by an unlawful act, to-wit: by threatening to kill complainant, face to face, in person, in retaliation for and on account of the service and status of said complainant as a public servant.In his first point of error, appellant complains the trial court erred by failing to quash the indictment because it does not charge an offense. Appellant specifically contends the indictment does not specify how his act was unlawful. A person commits retaliation if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service or status of another as a public servant. Tex. Pen. Code Ann. § 36.06(a) (Vernon 2003). Because the indictment in appellant's case tracks the retaliation statute, it is not fundamentally defective for failing to state an offense. See Hodge v. State, 756 S.W.2d 353, 355 (Tex.App.-Dallas 1988, no pet.). Moreover, the indictment in appellant's case also alleges the manner and means by which appellant was alleged to have threatened the complainant; it specifies that appellant made the threat face to face and in person. Appellant received sufficient notice to allow him to prepare a defense. See Doyle v. State, 661 S.W.2d 726, 730 (Tex.Crim.App. 1983). We overrule his first point of error. In his second point of error, appellant complains the trial court erred in failing to quash the indictment because "the retaliation statute as applied infringes upon constitutionally protected speech." Appellant argues the statute is "unconstitutional as applied" because it "punishes him for statements which constitute protected speech and do not pose a clear and present danger to society." He further argues the statute "abridges his right to free speech" and "infringes upon his right to petition government officials for redress of his grievances." In an "unconstitutional as applied" challenge, the moving party generally concedes the constitutionality of the statute but argues that it is being unconstitutionally applied to his particular circumstances. State v. Doe, 61 S.W.3d 99, 101-02 n. 3 (Tex.App.-Dallas 2001), aff'd, 112 S.W.3d 532 (Tex.Crim.App. 2003). Here, the record contains no evidence of appellant's particular circumstances. Because the record does not reveal what words appellant allegedly uttered or under what circumstances he allegedly uttered them, we cannot address his claim that the retaliation statute is unconstitutional as applied. See Tex.R.App.P. 38.1(h); see also Kaczmarek v. State, 986 S.W.2d 287, 291 (Tex.App.-Waco 1999, no pet.) (declining to decide constitutional issue "on a broader basis than the record requires"). We overrule appellant's second point of error. We affirm the trial court's judgment.