Voice for the Defense Volume 48, No. 10 Edition
Editor: Michael Mowla
From Editor Michael Mowla:
1. I summarize each opinion in a manner that allows readers to generally use this SDR instead of reading every opinion.
2. If you determine that a summarized opinion is relevant to one of your cases, I urge you to read the opinion and not rely solely upon these summaries.
3. The summaries reflect the facts and relevant holdings and do not reflect my opinion of whether the cases correctly: (1) recite the facts presented at trial; or (2) apply the law. My opinions (if any) are preceded by “Editor’s Note.”
4. This SDR is for you. Send me suggestions on how I may improve it.
Supreme Court of the United States
Editor’s note: no relevant opinions have been handed down by the SCOTUS yet during the new term.
United States Court of Appeals for the Fifth Circuit
United States v. Dean, No. 18-50509, 2019 U.S.App.LEXIS 30393 (5th Cir. Oct. 10, 2019) (designated for publication) [Conditions of supervised release; plain error review; search-condition of supervised release]
Under 18 U.S.C. § 3583(d), a district court may order any condition set forth as a discretionary condition of supervised release in 18 U.S.C. § 3563(b) and any other condition it considers appropriate.
When a defendant objects to a special condition of supervised release, review is for abuse of discretion. Failure to object causes review for plain error.
When the defendant does not object to error before the district court, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), a court of appeals may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. Under Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), and United States v. Olano, 507 U.S. 725 (1993), these conditions must be met before a court may consider plain error: (1) error that has not been intentionally relinquished or abandoned; (2) the error must be plain (clear or obvious); (3) the error must have affected the defendant’s substantial rights, which requires the defendant to show a reasonable probability that but for the error, the outcome of the proceeding would have been different; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
District courts have wide discretion in imposing terms and conditions of supervised release. District courts may impose any condition provided the condition is reasonably related to at least one of four factors: (1) the nature and characteristics of the offense and the history and characteristics of the defendant, (2) the deterrence of criminal conduct, (3) the protection of the public from further crimes of the defendant, and (4) the provision of needed educational or vocational training, medical care, or other correctional treatment to the defendant. The condition must be narrowly tailored such that it does not involve a greater deprivation of liberty than is reasonably necessary to fulfill the purposes set forth in § 3553(a).
- Dean pleaded guilty to felon in possession of a firearm per 18 U.S.C. § 922(g)(1).
- The PSR showed a criminal history category of VI and offense level of 12.
- The district court sentenced him to 37 months in BOP.
- A term of supervised release was: “The defendant shall submit his person, property, house, residence, vehicle, papers, computers, other electronic communications or data storage devices or media, or office to a search conducted by a United States probation officer. Failure to submit to a search may be grounds for revocation of release. The defendant shall warn any other occupants that the premises may be subject to searches pursuant to this condition. The probation officer may conduct a search under this condition only when reasonable suspicion exists that the defendant has violated a condition of supervision and that the areas to be searched contain evidence of this violation. Any search shall be conducted at a reasonable time and in a reasonable manner.”
- Dean did not object to the condition.
The record sufficiently supports the special search condition
- Under 18 U.S.C. § 3583(d), a district court may order any condition set forth as a discretionary condition of probation in 18 U.S.C. § 3563(b) and any other condition it considers appropriate.
- When a defendant objects at sentencing to a special condition of supervised release, review is for abuse of discretion. Failure to object causes review for plain error only.
Editor’s note: the full relevant law on plain error review:
- When the defendant does not object to error before the district court, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), a court of appeals may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. Under Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), and United States v. Olano, 507 U.S. 725 (1993), these conditions must be met before a court may consider plain error: (1) error that has not been intentionally relinquished or abandoned; (2) the error must be plain (clear or obvious); (3) the error must have affected the defendant’s substantial rights, which requires the defendant to show a reasonable probability that but for the error, the outcome of the proceeding would have been different; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
- No factual finding was made by the district court about the condition.
- In the absence of a factual finding, the 5th Circuit may affirm a special condition of supervised release if the district court’s reasoning can be inferred after an examination of the record.
- The PSR reflects an extensive criminal history ranging from drug possession to burglary to firearm possession. The condition is a mechanism for enforcing other conditions prohibiting Dean’s possession of drugs or firearms by facilitating the detection of evidence of other supervised release violations.
- The condition is also narrowly tailored because Dean will be subject to the condition only if the probation officer reasonably suspects Dean has violated a condition of supervision and any search may be conducted only at a reasonable time and in a reasonable manner.
- There was no clear error. The judgment is affirmed.
United States v. James, No. 19-30049, 2019 U.S.App.LEXIS 27847 (5th Cir. Sep. 16, 2019) (designated for publication) [Government’s standard of proof in a Sell-hearing is clear and convincing]
Under Drope v. Missouri, 420 U.S. 162, 171 (1975), mental competence is a prerequisite to stand trial. A person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial. A defendant is competent if he has a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings.
Under Sell v. United States, 539 U.S. 166 (2003), the four-prong test to determine whether a defendant may be forcibly medicated to restore his competency for trial is whether: (1) important governmental interests are at stake; (2) involuntary medication will significantly further those interests; (3) involuntary medication is necessary to further those interests; and (4) the administration of the drugs is medically appropriate.
The government’s evidentiary burden under Sell is by clear and convincing evidence before a defendant may be forcibly medicated.
United States v. Khan, No. 18-20519, 2019 U.S.App.LEXIS 27846 (5th Cir. Sep. 16, 2019) (designated for publication) [Procedurally and substantively unreasonable sentences; U.S.S.G. § 3A1.4 enhancement for terrorism]
Sentences are reviewed for procedural reasonableness and substantive reasonableness: A bifurcated review process reviews for procedural reasonableness and if there is no procedural error, for substantive reasonableness. Procedural reasonableness requires a determination whether the district court committed a significant procedural error at sentencing. Failing to calculate (or improperly calculating) the Guidelines range is significant procedural error.
Under U.S.S.G. § 3A1.4, a terrorism enhancement makes the Guidelines range 180 months, the statutory maximum, and allows a 12-level increase and criminal history score of VI if it involved or was intended to promote a federal crime of terrorism (crime enumerated in 18 U.S.C. § 2332b(g)(5) that influences or affects the conduct of government by intimidation or coercion or to retaliate against government conduct).
The Guidelines do not contain a general prohibition against double-counting. It is prohibited only if it is specifically forbidden by the guideline at issue.
Texas Court of Criminal Appeals
Ex parte Adams, No. PD-0711-18, 2019 Tex.Crim.App. LEXIS 979 (Tex.Crim.App. Oct. 9, 2019) (designated for publication) (Aggravated Assault with a deadly weapon and SBI, Taylor Co.) [Collateral estoppel]
Under the Double Jeopardy Clause of the Fifth Amendment, North Carolina v. Pearce, 395 U.S. 711, 717 (1969), and Aekins v. State, 447 S.W.3d 270, 274 (Tex.Crim.App. 2014), a person is protected against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.
Under Ashe v. Swenson, 397 U.S. 436, 445 (1970), collateral estoppel applies in criminal cases, so when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Under Rollerson v. State, 227 S.W.3d 718, 730 (Tex.Crim.App. 2007), and Currier v. Virginia, 138 S.Ct. 2144, 2150 (2018), the government may not litigate a specific elemental fact to a factfinder, receive an adverse finding on the specific fact, learn from its mistakes, hone its prosecutorial performance, and relitigate that same factual element already decided against the government. For collateral estoppel to apply: The factfinder had to have determined a specific fact (how broad—in terms of time, space and content—was the scope of its finding) that was decided in favor of the defendant in the first trial.
When a defendant is acquitted on a defense of a third person theory after stabbing a person engaged in a fight, collateral estoppel does not bar a subsequent prosecution for stabbing another person who was not fighting.
Curry v. State, No. PD-0577-18, 2019 Tex.Crim.App. LEXIS 1088 (Tex.Crim.App. Oct. 30, 2019) (designated for publication) (Failure to Stop and Render Aid per Tex. Transp. Code § 550.021(a) & (c)(1), Harris Co.) [Legal sufficiency; mistake of fact under Tex. Penal Code § 8.02]
Statutory construction is a question of law reviewed de novo. If the language is plain, the court will effectuate the plain language. If the language is ambiguous or effectuating the plain language would lead to absurd results, the court may resort to extra-textual sources to determine the intent of the legislators.
Under Tex. Transp. Code § 550.021(a)(1)–(4) (Failure to Stop and Render Aid), the operator of a vehicle involved in an accident that results or is reasonably likely to result in injury or death shall: (1) immediately stop the vehicle at the scene of the accident or as close to the scene as possible; (2) immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident; (3) immediately determine whether a person is involved in the accident, and if a person is involved in the accident, whether that person requires aid; and (4) remain at the scene of the accident until the operator complies with the requirements of § 550.023.
To prove Tex. Transp. Code § 550.021(a)(1)–(4) (Failure to Stop and Render Aid), the State need not prove that the driver knew a person involved in the accident was injured or killed (although such proof will suffice). The State may allege that a driver failed to stop and render aid because he knew that he was involved in an accident that was reasonably likely to injure or kill another person, if another person was involved. A driver does not have to stop and render aid if he does not know that he was involved in an accident; if he knows that he was involved in an accident and knows that it did not result in injury to or the death of a person; or if he knows that he was involved in an accident but it was not reasonably likely that the accident would result in injury to or the death of another.
A defendant is entitled to a mistake-of-fact instruction if the issue is raised by the evidence even if that evidence is weak or controverted. Under Tex. Penal Code § 8.02(a), it is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.
- Curry was indicted for Failure to Stop and Render Aid to bicyclist Ambrose per Tex. Transp. Code § 550.021(a), (c)(1). Curry did not dispute that he struck Ambrose and failed to stop and render aid and conceded that Ambrose died from complications arising from the medical treatment. Curry contended that he did not know that he had struck a person who required his assistance.
- The investigation showed that a vehicle struck Ambrose from behind while he was bicycling in the northbound lane of a narrow, two-lane road, a driver traveling in the northbound lane could have seen Ambrose because his bicycle had reflectors that were visible at night, and the driver who struck Ambrose was aware that the collision had occurred because the debris path showed that the driver had swerved.
- A citizen’s tip lead deputies to Curry. The front passenger side of his truck was damaged.
- Curry testified that he did not think that he had been in an accident. It was dark and the surrounding lighting was poor. Curry said he did not see anything in the roadway and the passenger-side headlight suddenly burst. He believed that somebody threw something, something hit his truck, or that it was something that had just came up off the road. Curry conceded that he knew there had been a collision of some sort. Curry braked but did not stop, explaining that it was dark, and he feared the possibility of an “altercation” with someone.
- Curry’s girlfriend San Felipo testified that she and Curry were returning from dinner that evening. San Felipo was following him in her car. They were traveling 30–40 mph. San Felipo could see the roadway beyond Curry’s truck. She did not see a bicyclist in the road. Curry’s headlight shattered, his truck “jerked a little bit,” and he braked. She thought somebody threw a bottle at him. San Felipo did not see Ambrose after the impact.
- Curry and San Felipo drove to his home where they inspected the truck. Immediately afterward, they then returned to the scene in San Felipo’s car to determine what had happened. They slowly drove by the area, but they did not stop there. San Felipo saw the silhouette of a man, whom she thought might have thrown the bottle. Aside from the remains of his headlight, Curry said that he did not see debris in the road. Nor did he see Ambrose or his bike. Curry conceded that he would have found Ambrose and known that Ambrose needed help if he and San Felipo had stopped and looked around for a few minutes.
- Rooke (accident reconstructionist and defense expert) opined that Ambrose was not in the roadway immediately before the accident; Ambrose, whose BAC was more than 2× the legal limit, had pulled out onto the road just as Curry’s truck passed by; Ambrose and his bike would have come to rest elsewhere if Curry had struck him from directly behind; the bicycle’s rear tire was too low to damage the truck’s headlight; because Curry’s truck sustained so little damage, a reasonable person could have believed that it struck something other than a person or another vehicle.
- Rooke conceded that his testimony about Ambrose’s sudden entry onto the road was based on Curry’s and San Felipo’s statements and not physical evidence; the physical evidence was consistent with the police reconstruction; and if Ambrose was already on the road when Curry approached, Curry would have been able to see Ambrose from a distance.
The trial court erred by refusing the mistake-of-fact instruction
- A defendant is entitled to a mistake-of-fact instruction if the issue is raised by the evidence even if that evidence is weak or controverted. Under Tex. Penal Code § 8.02(a), it is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.
- The question is not whether Curry knew that he was involved in an accident (he admitted that he was). It is whether he made a reasonable mistake in thinking that no one involved in the accident was injured or killed or in thinking that the accident was not reasonably likely to have injured or killed another person.
- Curry and his girlfriend testified that they never saw Ambrose or anyone else riding a bicycle. This testimony was sufficient to raise the mistake-of-fact issue when viewing the evidence in the light most favorable to the defense. If the jury concluded that Curry reasonably believed that he was not involved in an accident that injured or killed someone, or that he reasonably believed he was not involved in an accident that was reasonably likely to injure or kill someone, that would negate the necessary mens rea to find Curry guilty.
- Because the court of appeals did not reach the issue of whether Curry was harmed by the failure to include a mistake-of-fact instruction, the case is reversed and remanded to determine if Curry was harmed by the absence of the instruction.
International Fidelity Ins. Co. (A-1 Bonding) v. State, No. PD-0642-18 to PD-0644-18, 2019 Tex.Crim.App.LEXIS 1082 (Tex.Crim.App. Oct. 30, 2019) (designated for publication) (Bond Forfeiture, Harris Co.) [Tex. Rule App. Proc. 34.6(f)]
Review of a trial court’s ruling on an MNT is for an abuse of discretion, a deferential standard that requires appellate courts to view the evidence in the light most favorable to the trial court’s ruling. A trial court abuses its discretion only when no reasonable view of the record could support its ruling.
Under Tex. Rule App. Proc. 34.6(f), an appellant is entitled to a new trial if: (1) the appellant timely requested a reporter’s record; (2) without the appellant’s fault, a significant exhibit or a significant portion of the court reporter’s notes and records has been lost or destroyed or—if the proceedings were electronically recorded—a significant portion of the recording has been lost or destroyed or is inaudible; (3) the lost, destroyed, or inaudible portion of the reporter’s record or the lost or destroyed exhibit is necessary to the appeal’s resolution; and (4) the lost, destroyed, or inaudible portion of the reporter’s record cannot be replaced by agreement of the parties, or the lost or destroyed exhibit cannot be replaced either by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit.
Tex. Rule App. Proc. 34.6(f) places a burden on Appellant to prove that a record existed in the first place. Litigants have no way of knowing how to meet the hefty burden this rule places on them. Where litigants have taken all reasonable steps to ensure the creation of a record, their right to appeal should be protected. But Rule 36.6(f) offers no remedy when through no fault of the appellant a record was never created.
Editor’s note: This is too strict of a reading of Rule 34.6(f)’s “lost or destroyed” language. It allows an incompetent court reporter to not make a record at all, leaving parties with no recourse. Certainly, judges may remove incompetent court reporters. But even if they do, cases are still destroyed, and parties are left without recourse through no fault of their own.
Williams v. State, No. PD-1199-17, 2019 Tex.Crim.App. LEXIS 980 (Tex.Crim.App. Oct. 9, 2019) (designated for publication) [Manslaughter and Accident Involving Personal Injury or Death, Brazoria Co.; Tex. Code Crim. Proc. Art. 38.41’s constitutionally permissible notice-and-demand provision for laboratory reports]
The Confrontation Clause allows the accused the right to confront witnesses against him. When the State offers a testimonial statement into evidence, the accused has a right to insist that the person making the statement appear in court and be subject to cross-examination.
Forensic laboratory reports created solely for an evidentiary purpose in aid of a police investigation are testimonial. Ordinarily a defendant has a right to insist that an analyst making incriminating claims in a laboratory report explain and defend her findings in person at trial.
The State may—without offending the Confrontation Clause—adopt procedural rules governing confrontation-based objections like a notice-and-demand statute that requires the prosecution to notify the defendant of its intent to use an analyst’s report as evidence, after which the defendant is given time in which he may object to its admission absent the analyst’s appearance live at trial.
Tex. Code Crim. Proc. Art. 38.41 is a constitutionally permissible notice-and-demand provision that provides: (§ 1) a certificate of analysis that complies with this article is admissible in evidence to establish the results of a laboratory analysis of physical evidence conducted by or for a law enforcement agency without the necessity of the analyst personally appearing in court; (§ 3) a certificate of analysis must contain this information certified under oath: (1) analyst’s name and the name of the lab employing her; (2) statement that the lab is properly accredited; (3) description of the analyst’s education, training, and experience; (4) statement that the analyst’s duties include analyzing evidence for law enforcement agencies; (5) description of the tests or procedures conducted by the analyst; (6) statement that the tests or procedures were reliable and approved by the lab; and (7) the results of the analysis; (§ 4) offering party must file the certificate with the trial court and provide a copy to the opposing party not later than the 20th day before the trial. The certificate is not admissible if not later than the 10th day before trial the opposing party files a written objection to the use of the certificate; (§ 5) a certificate is sufficient if it substantially complies with Art. 38.41 with an affidavit worded in the first person.
“Substantial compliance” under Art. 38.41 does not require particular words but only that information be communicated in some effective way. It is irrelevant if the affiant is someone who could not over a Sixth Amendment confrontation-objection serve as a sponsoring witness for the laboratory results at trial. The affiant need not be the same person as the analyst. Whoever the affiant is, she must provide information that is responsive to § 3, including information pertinent to the analyst. Regardless of who the affiant is, the defendant can assert his right of confrontation if he is diligent about it. If the defendant does not promptly object to a timely filed and substantially compliant certificate, his confrontation objection will be forfeited.
Texas Courts of Appeals
Barnes v. State, No. 06-19-00045-CR, 2019 Tex.App.—LEXIS 8578 (Tex.App.—Texarkana, Sep. 25, 2019) (designated for publication) (Burglary of a Habitation, Gregg Co.) [Sufficiency of the evidence on the law of parties; proving prior convictions for enhancement purposes; nonconstitutional harm under Tex. Rule App. Proc. 44.2(b)]
Under Tex. Penal Code § 7.01(a), a person is criminally responsible as a party if the offense is committed by his conduct, the conduct of another for which he is criminally responsible, or by both. A person is criminally responsible for the conduct of another if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other to commit the offense.
Under Beardsley v. State, 738 S.W.2d 681, 684 (Tex.Crim.App. 1987), while an agreement to act together in a common design seldom is proved by direct evidence, a trier of fact may rely on the actions of the parties, showing by direct or circumstantial evidence an understanding and common design to do an act. Circumstantial evidence may be sufficient to show that a person is a party. When determining whether an individual is a party to an offense and bears criminal responsibility, the court may look to events before, during, and after the commission of the offense.
Under Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1994) (op. on reh.), evidence is sufficient to convict under the law of parties if the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement.
Under Rollerson v. State, 227 S.W.3d 718, 725–726 (Tex.Crim.App. 2007), a defendant’s unexplained possession of property recently stolen in a burglary permits an inference that the defendant is the one who committed the burglary. Where the possession of stolen property is not exclusive, the permitted inference by the factfinder is that the person in possession of the property was a party to the offense even where there is no evidence that the person entered the burglarized premises.
Under Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App. 2007), and Wood v. State, 486 S.W.3d 583, 589 (Tex.Crim.App. 2016), to establish that a defendant was convicted of a prior offense, the State must prove beyond a reasonable doubt that: (1) a prior conviction exists; and (2) the defendant is linked to that conviction. No specific mode of proof is required to prove the elements. Identity often includes the use of a combination of identifiers. The totality of the circumstances determines whether the State met its burden. The evidence resembles a jigsaw puzzle: Pieces standing alone usually have little meaning, but when fitted together, they usually form the picture of the person who committed the alleged prior conviction. The trier of fact must fit the pieces together and weigh the credibility of each piece. The standard of review for evaluating the sufficiency of evidence is consideration of all the evidence in the light most favorable to the finding.
Under Beck v. State, 719 S.W.2d 205, 210 (Tex.Crim.App. 1986), unless the defendant’s name is unique, a name and signature are insufficient by themselves to link a defendant to a prior conviction.
The erroneous admission of extraneous-offense evidence is not constitutional error.
Under Tex. Rule App. Proc. 44.2(b), an appellate court must disregard a nonconstitutional error that does not affect a criminal defendant’s substantial rights. An error affects a substantial right when it has a substantial and injurious effect or influence on the jury’s verdict. Nonconstitutional error does not allow a reversal if when the court looks at the entire record it concludes that there is fair assurance that the error did not influence the factfinder or had only slight effect. A harm analysis may include overwhelming evidence of guilt.
Ex parte Barton, No. 02-17-00188-CR, 2019 Tex.App.—LEXIS 8859 (Tex.App.—Fort Worth Oct. 3, 2019) (designated for publication) (Pretrial Habeas Corpus, Tarrant Co.) [Constitutionality of Tex. Penal Code § 42.07(a)(7), Online Harassment]
Tex. Penal Code 42.07(a)(7) is facially unconstitutional because it is vague and overbroad. The criminalization of “annoying” behavior—without any objective measurement or standard—is unconstitutionally vague.
Under Scott v. State, 322 S.W.3d 662, 668 (Tex.Crim.App. 2010), Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 390 (1969), and Cohen v. California, 403 U.S. 15, 21 (1971), the protection of free speech includes the free communication and receipt of ideas, opinions, and information. The guarantee of free speech is not absolute, and the State may lawfully proscribe communicative conduct that invades the substantial privacy interests of another in an essentially intolerable manner.
A person who communicates with the intent to harass, annoy, alarm, abuse, torment, or embarrass can also have an intent to engage in the legitimate communication of ideas, opinions, information, or grievances.
A phone call by the appellant (complainant’s neighbor) had both a facially legitimate reason behind it—to inform the complainant of construction issues—and could also have been made with an intent to harass or annoy the complainant when viewed in the context of other harassing phone calls made by the appellant.
Under May v. State, 765 S.W.2d 438, 439 (Tex.Crim.App. 1989), vague laws violate the Constitution by: (1) allowing arbitrary and discriminatory enforcement, (2) failing to provide fair warning, and (3) inhibiting the exercise of First Amendment freedoms. When examining the vagueness of a statute, a court must focus on the statute’s ability to provide fair notice of the prohibited conduct. A law imposing criminal liability must be sufficiently clear to: (1) give a person of ordinary intelligence a reasonable opportunity to know what is prohibited; and (2) establish determinate guidelines for law enforcement. A law that implicates First Amendment freedoms requires even greater specificity to avoid chilling protected expression. Specificity and clarity are important to prevent citizens from steering far wider of the unlawful zone than if the boundaries of the forbidden areas are clearly marked.
Under Long v. State, 931 S.W.2d 285, 288 (Tex.Crim.App. 1996), and State v. Johnson, 475 S.W.3d 860, 865 (Tex.Crim.App. 2015), vagueness and overbreadth are intertwined. A statute is overbroad and if in addition to proscribing activity that may be forbidden it sweeps a substantial amount of expressive activity that is protected. The statute’s oppressive affect cannot be minor—it must prohibit a substantial amount of protected expression and the danger that the statute will be unconstitutionally applied must be realistic and not based on fanciful hypotheticals.