Alobaidi v. State, No. 40918

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtWOODLEY
Citation89 S.Ct. 313,433 S.W.2d 440
Docket NumberNo. 40918
Decision Date03 April 1968
PartiesAziz ALOBAIDI, Appellant, v. The STATE of Texas, Appellee.

Page 440

433 S.W.2d 440
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.

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 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

Page 442

for a lawful business purpose, but to any other use of the telephone, a...

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26 practice notes
  • Donley v. City of Mountain Brook, 6 Div. 742
    • United States
    • Alabama Court of Criminal Appeals
    • May 18, 1982
    ...as to secure the benefit intended, will best effect the legislative intent, and so that it will be constitutional. Alobaidi v. State, 433 S.W.2d 440 (Tex.Cr.App.), cert. denied, 393 U.S. 943, 89 S.Ct. 313, 21 L.Ed.2d 281 (1968); Accord, State v. Elder, 382 So.2d 687, 690 (Fla.1980); People ......
  • State v. Gattis, No. 9176
    • United States
    • New Mexico Court of Appeals of New Mexico
    • November 26, 1986
    ...90 Wis.2d 110, 279 N.W.2d 710 (1979). Also, the Texas statute, after being upheld in several state court cases, e.g., Alobaidi v. State, 433 S.W.2d 440 (Tex.Crim.App.), cert. denied, 393 U.S. 943, 89 S.Ct. 313, 21 L.Ed.2d 281 (1968), was struck down by the Fifth Circuit as unconstitutionall......
  • Kramer v. Price, No. 5
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 15, 1983
    ...cases relied upon by the court in Collection Consultants include Schuster v. State, 450 S.W.2d 616 (Tex.Cr.App.1970); Alobaidi v. State, 433 S.W.2d 440 (Tex.Cr.App.1968), cert. denied, 1968, 393 U.S. 943, 89 S.Ct. 313, 21 L.Ed.2d 281; and LeBlanc v. State, 441 S.W.2d 847 (Tex.Cr.App.1969). ......
  • Walker v. Dillard, Civ. A. No. 72-C-28-R.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • August 30, 1973
    ...with intent to harass, annoy, torment, abuse, threaten or intimidate another * * * shall be guilty of a misdemeanor. Alobaidi v. State, 433 S.W.2d 440, 441 (Ct.Crim.App.Tex.1968), cert denied, 393 U. S. 943, 89 S.Ct. 313, 21 L.Ed.2d 281W.Va.Code, § 61-8-16 (1967 rev.). 4 The Louisiana statu......
  • Request a trial to view additional results
26 cases
  • Donley v. City of Mountain Brook, 6 Div. 742
    • United States
    • Alabama Court of Criminal Appeals
    • May 18, 1982
    ...as to secure the benefit intended, will best effect the legislative intent, and so that it will be constitutional. Alobaidi v. State, 433 S.W.2d 440 (Tex.Cr.App.), cert. denied, 393 U.S. 943, 89 S.Ct. 313, 21 L.Ed.2d 281 (1968); Accord, State v. Elder, 382 So.2d 687, 690 (Fla.1980); People ......
  • State v. Gattis, No. 9176
    • United States
    • New Mexico Court of Appeals of New Mexico
    • November 26, 1986
    ...90 Wis.2d 110, 279 N.W.2d 710 (1979). Also, the Texas statute, after being upheld in several state court cases, e.g., Alobaidi v. State, 433 S.W.2d 440 (Tex.Crim.App.), cert. denied, 393 U.S. 943, 89 S.Ct. 313, 21 L.Ed.2d 281 (1968), was struck down by the Fifth Circuit as unconstitutionall......
  • Kramer v. Price, No. 5
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 15, 1983
    ...cases relied upon by the court in Collection Consultants include Schuster v. State, 450 S.W.2d 616 (Tex.Cr.App.1970); Alobaidi v. State, 433 S.W.2d 440 (Tex.Cr.App.1968), cert. denied, 1968, 393 U.S. 943, 89 S.Ct. 313, 21 L.Ed.2d 281; and LeBlanc v. State, 441 S.W.2d 847 (Tex.Cr.App.1969). ......
  • Walker v. Dillard, Civ. A. No. 72-C-28-R.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • August 30, 1973
    ...with intent to harass, annoy, torment, abuse, threaten or intimidate another * * * shall be guilty of a misdemeanor. Alobaidi v. State, 433 S.W.2d 440, 441 (Ct.Crim.App.Tex.1968), cert denied, 393 U. S. 943, 89 S.Ct. 313, 21 L.Ed.2d 281W.Va.Code, § 61-8-16 (1967 rev.). 4 The Louisiana statu......
  • Request a trial to view additional results

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