Duran v. State

• Decision Date: 23 August 2012
• Docket Number: NUMBERS 13-11-00205-CR and 13-11-00218-CR
• Parties: CHRISTOPHER PAUL DURAN, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

CHRISTOPHER PAUL DURAN, Appellant,

v.THE STATE OF TEXAS, Appellee.

NUMBERS 13-11-00205-CR and 13-11-00218-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

Filed: August 23, 2012

On appeal from the County Court at Law No. 3

of Jefferson County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Vela

Memorandum Opinion by Justice Rose Vela

In cause number 13-11-00205-CR, a jury convicted appellant, Christopher Paul Duran, of harassment, a Class B misdemeanor, see TEX. PENAL CODE ANN. § 42.07(a)(7), (c) (West 2011), and he was placed on community supervision. In cause number 13-11-00218-CR, a jury convicted appellant of harassment, a Class B misdemeanor. See id. Following a punishment hearing, appellant was sentenced to sixty days in jail,and the trial court revoked his community supervision in cause no. 13-11-00205-CR and sentenced him to sixty days in jail for that offense. The sentences are to run concurrently. By four issues, appellant asserts: (1) section 42.07(a)(7) of the Texas Penal Code is unconstitutionally vague; (2) the trial court erred in denying his motion to quash the information; (3) the trial court erred by denying his request for a limiting instruction; and (4) the trial court erred by revoking his community supervision. We affirm.¹

I. ISSUES RELATED TO

CAUSE No. 13-11-00218-CR

A. Constitutionality of Section 42.07(a)(7) of the Texas Penal Code

In issue one, appellant contends a subsection of the Texas harassment statute, penal code section 42.07(a)(7), is unconstitutionally vague, both as it applied to him and as applied on its face. Our initial inquiry is whether section 42.07(a)(7) implicates the free-speech guarantee of the First Amendment "because if the statutory subsection does implicate the free-speech guarantee, then [appellant], in making his vagueness challenge, is relieved of the usual requirement of showing that the statutory subsection was unduly vague as applied to his conduct." Scott v. State, 322 S.W.3d 662, 668 (Tex. Crim. App. 2010) (emphasis in original).

Even though Scott involved the constitutionality of a different subsection of the harassment statute; i.e., section 42.07(a)(4), the analysis in Scott is helpful in the case before us. In Scott, the defendant was charged by information with two counts of misdemeanor harassment. Id. at 665. He filed a motion to quash both informations,arguing that "Texas Penal Code § 42.07, the statute under which he was charged, was unconstitutional on its face[² ] because it was both unduly vague and overbroad." Id. The trial court denied the motion to quash, and the defendant pleaded nolo contendere to each harassment charge. Id. at 666. However, the court of appeals agreed with the defendant's arguments, reversed the trial court's judgments, and rendered judgments of acquittal. Id. at 667 (citing Scott v. State, 298 S.W.3d 264 (Tex. App.—San Antonio 2009)).

The State appealed to the court of criminal appeals, arguing that the court of appeals erred in concluding that section 42.07(a)(4) implicated the free-speech guarantee of the First Amendment to the United States Constitution. Id. at 668. In resolving this issue, the court of criminal appeals noted that section 42.07(a)(4) provides, in relevant part: "'A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he . . . makes repeated telephone communications . . . in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.'" Id. at 669. After examining the text of section 42.07(a)(4), the court of criminal appeals concluded:

First, the text [of section 42.07(a)(4)] requires that the actor have the specific intent to harass, annoy, alarm, abuse, torment, or embarrass the recipient of the telephone call. That is, the text requires that the actor have the intent to inflict harm on the victim in the form of one of the listed types of emotional distress. Second, the text requires that the actor make repeated telephone calls to the victim; one telephone call will not suffice. Third, the text requires that the actor make those telephone calls in a mannerreasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend an average person. Fourth, the text does not require that the actor use spoken words.

Having examined the text of § 42.07(a)(4), we conclude that it is not susceptible of application to communicative conduct that is protected by the First Amendment. In other words, the statutory subsection does not implicate the free-speech guarantee of the First Amendment. The statutory subsection, by its plain text, is directed only at persons who, with the specific intent to inflict emotional distress, repeatedly use the telephone to invade another person's personal privacy and do so in a manner reasonably likely to inflict emotional distress. Given that plain text, we believe that the conduct to which the statutory subsection is susceptible of application will be, in the usual case, essentially noncommunicative, even if the conduct includes spoken words. That is to say, in the usual case, persons whose conduct violates § 42.07(a)(4) will not have an intent to engage in the legitimate communication of ideas, opinions, or information; they will have only the intent to inflict emotional distress for its own sake. To the extent that the statutory subsection is susceptible of application to communicative conduct, it is susceptible of such application only when that communicative conduct is not protected by the First Amendment because, under the circumstances presented, that communicative conduct invades the substantial privacy interests of another (the victim) in an essentially intolerable manner.

* * *

Because § 42.07(a)(4) does not implicate the free-speech guarantee of the First Amendment, Scott, in making his vagueness challenge to that statutory subsection, was required to show that it was unduly vague as applied to his own conduct. He has not done that. Therefore, his vagueness challenge fails.

Id. at 669-71. The court of criminal appeals reversed the judgments of the court of appeals and affirmed the judgments of the trial court. Id. at 671.

1. Whether Section 42.07(a)(7) Implicates the Free-Speech Guarantee of the First Amendment

Section 42.07(a)(7) of the penal code provides: "A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he: . . . (7)sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another." TEX. PENAL CODE ANN. § 42.07(a)(7). In comparing section 42.07(a)(4) as quoted by the Scott court with section 42.07(a)(7), we note that the only difference is that (a)(7) involves "electronic communications" whereas (a)(4) involves "telephone communications." ³ Neither subsection requires the actor to use spoken words. In addition, the text of both subsections requires the actor to: (1) have the specific intent to harass, annoy, alarm, abuse, torment, or embarrass the recipient of the communication; i.e., the text of both subsections requires the actor to have the intent to inflict harm on the victim in the form of one of the listed types of emotional distress; (2) make repeated communications to the victim; one communication is not enough; and (3) make the communication in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend an average person.

Having compared section 42.07(a)(4) to section 42.07(a)(7), we conclude that (a)(7), like (a)(4), does not implicate the free-speech guarantee of the First Amendment. Section 42.07(a)(7), by its plain text, is directed only at persons who, with the specific intent to inflict emotional distress repeatedly use electronic communication to invade another person's personal privacy and do so in a manner reasonably likely to inflict emotional distress. Given the plain text of section 42.07(a)(7), the conduct to which the statutory subsection is susceptible of application will be, in the usual case,noncommunicative. Because section 42.07(a)(7) does not implicate the free-speech guarantee of the First Amendment, appellant, in making his vagueness challenge to the statutory subsection was required to show that it was unduly vague as applied to his own conduct.

2. Whether Appellant Has Shown Section 42.07(a)(7) Was Unduly Vague As Applied to His Conduct

"A claim that a statute is unconstitutional 'as applied' is a claim that the statute operates unconstitutionally with respect to the claimant because of his particular circumstances." Scott, 322 S.W.3d at 665 n.1 (citing Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex. Crim. App. 2006)). A statute may be challenged as unduly vague "if it does not: (1) give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and (2) establish definite guidelines for law enforcement." Id. (citing Bynum v. State, 767 S.W.2d 769, 773 (Tex. Crim. App. 1989)). "Ordinarily, a criminal defendant who challenges a statute as unduly vague must show that it is vague as applied to the conduct for which he was charged." Id. (citing Parker v. Levy, 417 U.S. 733, 756 (1974); Bynum, 767 S.W.2d at 774).

In the instant case, appellant was charged with harassment based on an allegation that he repeatedly sent text messages to another person. The information⁴ alleged, in relevant part, that he "unlawfully intentionally and knowingly make repeated telephone communications, with the intent to harass, annoy, alarm, abuse, torment, and embarrass LESLIE SMITH, . . . ."

Section 42.07(a)(7) provides that a person commits the offense of harassment if the "person . . . with intent to harass, annoy, alarm, abuse, torment, or embarrass another, . . . sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offends another." TEX. PENAL CODE...