433 S.W.2d 440 (Tex.Crim.App. 1968), 40918, Alobaidi v. State

Docket Nº:40918.
Citation:433 S.W.2d 440
Party Name:Aziz ALOBAIDI, Appellant, v. The STATE of Texas, Appellee.
Case Date:April 03, 1968
Court:Court of Appeals of Texas, Court of Criminal Appeals of Texas

Page 440

433 S.W.2d 440 (Tex.Crim.App. 1968)

Aziz ALOBAIDI, Appellant,

v.

The STATE of Texas, Appellee.

No. 40918.

Court of Criminal Appeals of Texas.

April 3, 1968

Rehearing Denied May 29, 1968.

Certiorari Denied Nov. 12, 1968.

See 89 S.Ct. 313.

Page 441

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.

OPINION

WOODLEY, Presiding Judge.

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...

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