Alobaidi v. State
| Decision Date | 03 April 1968 |
| Docket Number | No. 40918,40918 |
| Citation | 89 S.Ct. 313,433 S.W.2d 440 |
| Parties | Aziz ALOBAIDI, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Marvin O. Teague, Houston, (on appeal only), for appellant.
Carol S. Vance, Dist. Atty., Joseph W. Doucette and Charles E. Bonney, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
The conviction is for violation of Art. 476 Vernon's Ann.P.C. with punishment assessed at 182 days in jail.
The complaint and information were drawn under the portion of the statute which provides:
'Whoever * * * uses any telephone in any manner with intent to harass, annoy, torment, abuse, threaten or intimidate another, except if such call be for a lawful business purpose, shall be guilty of a misdemeanor, and upon conviction shall be fined not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00) or by imprisonment in the county jail for not less than one (1) month nor more than twelve (12) months, or by both such fine and imprisonment.'
Appellant's ground of error No. 1 is: 'The statute under which the defendant stands charged is unconstitutional as it violates the Due Process and the Equal Protection Clauses of the Fourteenth Amendment to the Constitution of the United States of America.'
Appellant's complaint, in essence, is that because of the exception, to-wit: 'except if such call be for a lawful business purpose,' the statute is unconstitutional in that it would permit a person to use vulgar, obscene or indecent language over or through any telephone or use a telephone in any manner with the intent to harass, annoy, torment, abuse, threaten or intimidate another if such call was for a lawful business purpose.
Appellant concedes that if the Legislature had omitted the phrase 'except if such call be for a lawful business purpose' his complaint that the statute is unconstitutional 'would be for naught.'
We do not agree with appellant's contention that the exception of calls for a lawful business purpose applies also to the reenacted portion of Art. 476 which makes it unlawful to use any vulgar, profane, obscene, or indecent language over or through any telephone.
As we construe the statute, it was the intent of the Legislature that the portion which made it an offense to use a telephone in any manner with intent to harass, annoy, torment, abuse, threaten or intimidate another would not apply to telephone calls for a lawful business purpose, but to any other use of the telephone, a system or process for transmission of sound or speech, in any manner with intent to harass, annoy, torment, abuse, threaten or intimidate another.
The exception makes plain the intent of the Legislature that the added portion of the statute should apply in all cases not excepted, and the act, including the severance clause and the emergency clause, makes clear the intent of the Legislature as we have construed it. 1
A statute susceptible of more than one construction will be so interpreted as to secure the benefit intended, will best effect the legislative intent, and so that it will be constitutional. Newsom v. State, Tex.Cr.App., 372 S.W.2d 681; Baldridge v. State, 167 Tex.Cr.R. 519, 321 S.W.2d 309; Carter v. State, 135 Tex.Cr.R. 457, 116 S.W.2d 371.
In determining whether there is a reasonable basis for excluding telephone calls for a lawful business purpose, the presumption is that the Legislature has not violated the constitution and the statute will be upheld unless it appears without doubt that the exception has no reasonable basis for support. See Patterson v. City of Dallas, Tex.Civ.App., 355 S.W.2d 838; State v. Richards, 157 Tex. 166, 301 S.W.2d 597; Ex parte Rubin, Tex.Cr.App., 362 S.W.2d 331.
There is ample basis for the exclusion of telephone calls made for a lawful business purpose in making it unlawful to use a telephone in any manner to harass, annoy, torment, abuse, threaten or intimidate. The exception is not designed to except any person or class of persons, but to except all persons if the call is for a...
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