712 F.2d 174 (5th Cir. 1983), 82-1185, Kramer v. Price

Docket Nº:82-1185.
Citation:712 F.2d 174
Party Name:Shirley KRAMER, Petitioner-Appellee, v. Tom PRICE, Judge, County Criminal Court No. 5, and Carl Thomas, Sheriff, Dallas County, Texas, Respondents-Appellants.
Case Date:August 15, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 174

712 F.2d 174 (5th Cir. 1983)

Shirley KRAMER, Petitioner-Appellee,


Tom PRICE, Judge, County Criminal Court No. 5, and Carl

Thomas, Sheriff, Dallas County, Texas,


No. 82-1185.

United States Court of Appeals, Fifth Circuit

August 15, 1983

Page 175

Douglas M. Becker, Asst. Atty. Gen., Austin, Tex., for respondents-appellants.

Paul H. Chitwood, Dallas, Tex., for petitioner-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before WISDOM, RUBIN and TATE, Circuit Judges.

WISDOM, Circuit Judge:

This appeal from the grant of a writ of habeas corpus requires us to decide whether the Texas Harassment Statute under which the petitioner was convicted is void for vagueness in violation of the first and fourteenth amendments to the United States Constitution. We conclude that it is and affirm.


Shirley Kramer, the petitioner, was tried by a jury in state court and found guilty of harassment. Kramer and John Keiser lived together for several months during 1970. In 1971, Keiser married another woman, Anne, but Kramer continued to write to him frequently for three years following his marriage. 1 Six days after Anne Keiser returned home from the hospital with the couple's first-born child, the United States Postal Service delivered a postcard addressed to Mr. Keiser. Affixed to the back of the postcard was the following message quoted from a newspaper advertisement:

Baby Problem Solved!

--with this beautiful




P.O. Box 11074

Cincinnati, Ohio 45211 2

Based on this bizarre message, the State charged the petitioner with violating the

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Texas Harassment Statute, Tex.Penal Code Ann. § 42.07(a)(1). She was tried by a jury in state court, found guilty, and sentenced to six months imprisonment. The sentence, however, was suspended and she was placed on probation for six months. The Texas Court of Criminal Appeals, en banc, affirmed. Kramer v. State, 605 S.W.2d 861 (Tex.Cr.App.1980) (en banc).

After exhausting her state remedies, Kramer sought habeas corpus relief in federal district court. The court found the Texas Harassment Statute to be unconstitutionally vague and overbroad, declared it void on both grounds, and entered judgment granting the writ. On appeal, the State challenges both conclusions and argues that the Harassment Statute protects important privacy interests. We address only the contention that the statute is void for vagueness.


The Texas Harassment Statute, Tex.Penal Code Ann. § 42.07 provides:

(a) A person commits an offense if he intentionally:

(1) communicates by telephone or in writing in vulgar, profane, obscene, or indecent language or in a coarse and offensive manner and by this action intentionally, knowingly, or recklessly annoys or alarms the recipient;

The State argues that § 42.07 is not vague because the statute's requirement of intent makes its application turn on the state of mind of the actor, and therefore ensures that the actor will have adequate notice of the proscribed conduct.

An enactment is void for vagueness 3 under the due process clause of the fourteenth amendment if it fails to draw reasonably clear lines between lawful and unlawful conduct. Smith v. Goguen, 1974, 415 U.S. 566, 574-578, 94 S.Ct. 1242, 1247-1249, 39 L.Ed.2d 605, 612-615. Vague statutes fail to provide citizens with fair notice or warning of statutory prohibitions so that they may act in a lawful manner. Connally v. General Const. Co., 1926, 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328; Lanzetta v. New Jersey, 1939, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, 890; Papachristou v. City of Jacksonville, 1972, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115.

The infirmities of vagueness, however, extend beyond the lack of fair notice. The absence of a determinate standard gives police officers, prosecutors, and the triers of fact unfettered discretion to apply the law, and thus there is a danger of arbitrary and discriminatory enforcement. The Supreme Court recently defined the void-for-vagueness doctrine as follows:

As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of vagueness doctrine 'is not actual notice, but the other principal element of the doctrine--the requirement that a legislature establish minimal guidelines to govern law enforcement.' Where the legislature fails to provide such minimal

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guidelines, a criminal statute may permit 'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.'

Kolender v. Lawson, --- U.S. ----, ---- - ----, 103 S.Ct. 1855, 1858-59, 75 L.Ed.2d 903 (1983) (citations omitted). See Hynes v. Mayor & Council of Borough of Oradell, 1976, 425 U.S. 610, 622, 96 S.Ct. 1755, 1761, 48 L.Ed.2d 243, 254; Grayned v. City of Rockford, 1972, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28. See also Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 75-85 (1960). In the first amendment area, "[t]he very existence of ... [a] censorial power, regardless of how or whether it is exercised, is unacceptable." Int'l. Soc'y For Krishna Consciousness v. Eaves, 5 Cir.1979, 601 F.2d 809, 822-23. When a statute is capable of reaching first amendment freedoms, the doctrine of vagueness "demands a greater degree of specificity than in other contexts." Smith v. Goguen, 415 U.S. at 573, 94 S.Ct. at 1247, 39 L.Ed.2d at 612. See also Hynes v. Mayor & Council of Borough of Oradell, 425 U.S. at 620, 96 S.Ct. at 1760, 48 L.Ed.2d at 253; NAACP v. Button, 1963, 371 U.S. 415, 432-433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, 418; Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 75-85 (1960).

The State relies on Collection Consultants, Inc. v. State, 556 S.W.2d 787, 793-94 (Tex.Cr.App.1977), appeal dismissed, 1978, 436 U.S. 901, 98 S.Ct. 2228, 56 L.Ed.2d 399, for the proposition that "annoy" and "alarm" are not vague terms. In that case, the Court of Criminal Appeals relied on earlier decisions upholding the constitutionality of Article 476, V.A.P.C., the predecessor to the current Texas Harassment Statute. Noting that there were no meaningful distinctions between the language of the old statute and its replacement, the court relied on these earlier cases to justify its conclusion that § 42.07 was not vague. 4 We find the reasoning of Collection Consultants unpersuasive.

The Supreme Court struck down a statute using the word "annoy" in Coates v. City of Cincinnati, 1971, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214. The city ordinance at issue in Coates made it a criminal offense for three or more individuals to assemble on public sidewalks and conduct themselves in a manner which might annoy passersby. The Ohio Supreme Court held that the statute was not vague in the light of its well-understood dictionary definition:

The ordinance prohibits, inter alia, 'conduct ... annoying to persons passing by.' The word 'annoying' is a widely used and well understood word; it is not necessary to guess its meaning. 'Annoying' is the present participle of the transitive verb 'annoy' which means to trouble, to vex, to impede, to incommode, to provoke, to harass or to irritate.

21 Ohio St.2d 66, 69, 255 N.E.2d 247, 249.

The Supreme Court rejected the Ohio Supreme Court's simple reliance on a dictionary meaning. The Court found two closely related flaws which rendered the statute void for vagueness. First, the Court recognized that some vagueness inheres in the word annoy:

Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.

402 U.S. at 614, 91 S.Ct. at 1688, 29 L.Ed.2d at 217. Second, the ordinance did not specify and the Ohio Supreme Court "did not indicate upon whose sensitivity a violation does depend--the sensitivity of the judge or jury, the sensitivity of the arresting officer,

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or the sensitivity of a hypothetical reasonable man". 402 U.S. at 613, 91 S.Ct. at 1688, 29 L.Ed.2d at 217. The inherent vagueness in attempting to define what annoys people and the failure to specify whose sensitivities are relevant compelled the Court to conclude that the ordinance was vague.

We conclude that the Texas Harassment Statute suffers from the same infirmities as the ordinance in Coates. The Texas courts have made no attempt to construe the terms "annoy" and "alarm" in a manner which lessens their inherent vagueness. 5 Of greater importance, the Texas courts have refused to construe the statute to indicate whose sensibilities must be offended. See Kramer v. State, 605 S.W.2d 861 (1980 Tex.Cr.App.); Collection Consultants, Inc. v. State, 556 S.W.2d 787 (Tex.Cr.App.1977). Coates recognized that a statute is unconstitutionally vague when the standard of conduct it specifies is dependent on each complainant's sensitivity. Whereas Coates specified that a passerby's sensitivity must be offended, the statute in this case makes no attempt at all to specify whose sensitivity must be offended. In the absence of judicial clarification, enforcement officials, as well as the citizens of Texas, are unable to determine what conduct is prohibited by the statute. 6

The State maintains that the Texas Harassment Statute is restricted to individuals who act with an intent to annoy. An...

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