Ex parte Barton

Decision Date03 October 2019
Docket NumberNo. 02-17-00188-CR,02-17-00188-CR
Citation586 S.W.3d 573
Parties EX PARTE Charles BARTON
CourtTexas Court of Appeals



Before Sudderth, C.J., and Kerr, J.1


Opinion by Chief Justice Sudderth

Appellee the State of Texas filed a motion for rehearing of our August 8, 2019 opinion and judgment. We deny the motion but withdraw our prior opinion and substitute the following in its place. With the exception of a footnote added to address the State's argument for rehearing, our opinion otherwise remains unchanged.

Appellant Charles Barton appeals from the trial court's order denying his application for writ of habeas corpus. In three points, he argues that the version of penal code section 42.07(a)(7) under which he was charged is unconstitutionally overbroad and vague and that the charging instrument fails to give him notice of the offense. See Act of June 15, 2001, 77th Leg., R.S., ch. 1222, 2001 Tex. Gen. Laws 2795 (amended 2013) (current version at Tex. Penal Code Ann. § 42.07(a)(7) ). Because we agree with Barton that the 2001 version of section 42.07(a)(7) is unconstitutionally vague and overbroad on its face, we reverse.


In February 2013, Barton was charged by information with nine counts of harassment by sending electronic text messages or email communications to his ex-wife.2 He moved to quash the information on the grounds that penal code section 42.07(a)(7) was unconstitutional and that the information lacked the requisite specificity. After the trial court denied the motion to quash, Barton filed an application for writ of habeas corpus, again challenging the constitutionality of section 42.07(a)(7).3 The trial court denied the application, and this appeal followed.


We review a constitutional challenge de novo as a question of law, and we presume that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Goyzueta v. State , 266 S.W.3d 126, 130 (Tex. App.—Fort Worth 2008, no pet.). At the time that Barton was charged, the statute, entitled "Harassment," provided in relevant part,

(a) 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.
(b) In this section:
(1) "Electronic communication" means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes:
(A) a communication initiated by electronic mail, instant message, network call, or facsimile machine;[4] and
(B) a communication made to a pager.

Act of June 15, 2001, 77th Leg., R.S., ch. 1222, 2001 Tex. Gen. Laws 2795 (amended 2013).

As the accused, Barton bears the burden to establish the statute's unconstitutionality.5 Goyzueta , 266 S.W.3d at 130. In his first and second points, Barton argues that penal code section 42.07(a)(7) is unconstitutionally vague and overbroad, both facially and as applied to him.6 First, Barton contends that the statute is vague because the terms "annoy" and "alarm" are reasonably susceptible to different meanings to different people and because the section "lacks a clear standard of conduct ... and is dependent on each complainant's sensitivity." Second, Barton contends that section 42.07(a)(7) is overbroad because it "chills First Amendment protected speech" and "prevents a spouse from expressing his true feelings, emotions or needs to his spouse for fear that his speech may be deemed ‘annoying’ and therefore criminal."7 The State responds that section 42.07(a)(7) is neither overbroad nor vague.

We agree with Barton that section 42.07(a)(7) is facially unconstitutional because it is vague and overbroad and therefore do not reach his third point attacking the nonspecific nature of the information. Tex. R. App. P. 47.1.8

I. Section 42.07(a)(7)'s impact on the guarantee of free speech

The First Amendment protects the freedom of speech and applies to the states by virtue of the Fourteenth Amendment. U.S. Const. amend. I ("Congress shall make no law ... abridging the freedom of speech."); W. Va. Bd. of Educ. v. Barnette , 319 U.S. 624, 638–39, 63 S. Ct. 1178, 1185–86, 87 L.Ed. 1628 (1943). The protection of free speech includes the "free communication and receipt of ideas, opinions, and information." Scott v. State , 322 S.W.3d 662, 668 (Tex. Crim. App. 2010) (citing Red Lion Broad. Co. v. F.C.C. , 395 U.S. 367, 390, 89 S. Ct. 1794, 1806, 23 L.Ed.2d 371 (1969) ; and Chaplinsky v. New Hampshire , 315 U.S. 568, 571–72, 62 S. Ct. 766, 769–70, 86 L.Ed. 1031 (1942) ). But the guarantee of free speech is not absolute and the State "may lawfully proscribe communicative conduct that invades the substantial privacy interests of another in an essentially intolerable manner." Id. (citing Cohen v. California , 403 U.S. 15, 21, 91 S. Ct. 1780, 1786, 29 L.Ed.2d 284 (1971) ).

Because this is a First Amendment challenge, we must first determine whether it "reaches a substantial amount of constitutionally protected conduct" before considering whether section 42.07(a)(7) is facially overbroad or vague.

Vill. of Hoffman Estates, v. Flipside Hoffman Estates, Inc. , 455 U.S. 489, 494, 102 S. Ct. 1186, 1191, 71 L.Ed.2d 362 (1982).

Almost a decade ago, the court of criminal appeals addressed the issue of whether the language of section 42.07 affects protected speech in the context of its prohibition of harassing telephone calls.9 Scott , 322 S.W.3d at 666. In that case, Scott moved to quash an indictment that charged him with violating the telephone-harassment subsection by calling the complainant "repeatedly by telephone while intoxicated, late at night, leaving abusive and harassing voice mail messages." Id. at 665. His motion was denied and he was convicted, but the court of appeals agreed with his argument that the telephone-harassment subsection was facially unconstitutional in violation of the First Amendment because it was unduly vague. Scott v. State , 298 S.W.3d 264, 270–73 (Tex. App.—San Antonio 2009),10 rev'd , Scott , 322 S.W.3d at 671.

The court of criminal appeals reversed and held that telephone communications that violated the harassment statute were "essentially noncommunicative" because "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." Scott , 322 S.W.3d at 669–70. In other words, the court of criminal appeals concluded that the telephone-harassment subsection was only susceptible of application to communicative conduct "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." Id. Because section 42.07(a)(4) did not reach communicative conduct, it did not implicate the free-speech guarantee of the First Amendment. Id.11

Presiding Judge Keller disagreed with the majority's decision. In her dissent, she argued that section 42.07(a)(4) implicated the First Amendment "with respect to the terms ‘annoy,’ ‘alarm,’ ‘embarrass,’ and ‘offend,’ "—emotional states that she identified as "low intensity"—but did not implicate the First Amendment "with respect to the terms ‘harass,’ ‘abuse,’ and ‘torment’ "—emotional states that she identified as "high intensity." Id. at 676 (Keller, P.J., dissenting). The distinction she drew between low and high intensity emotional states was in part based on the inherently personal and invasive nature of telephone calls:

[T]he telephone is a comparatively personal and private method of communication in which messages can be difficult to screen.... [I]t is a device readily susceptible to abuse by a person who intends to be a constant trespasser upon our privacy. When the intent of the actor is to inflict one of the higher-intensity emotional states of harass, abuse, and torment in the relatively private, "captive-audience" telephone context , and the actor's conduct is reasonably likely to achieve that end, the First Amendment provides no protection.

Id. (citation and footnotes omitted) (emphasis added).

Keller disagreed with what she assessed as the majority's unnecessary "graft[ing of] ‘sole intent’ onto the harassment statute as a narrowing construction." Id. at 676 ("[I]f the court is implying that situations are rare in which a person has more than one intent, I disagree. The mischief this statute can create is enormous."). As an example, she wrote, "One can easily imagine an ex-boyfriend hounding someone over the telephone with the intent to harass, abuse, or torment, but also having a particular grievance, real or imagined, to communicate." Id. at 677.

Four years later, the court of criminal appeals disavowed portions of the Scott decision. In Wilson v. State , it directly abrogated dicta in a footnote in the Scott decision that defined "repeated telephone communications" to mean "more than one telephone call in close enough proximity to properly be termed a single episode." 448 S.W.3d 418, 422 (Tex. Crim. App. 2014) (discussing and quoting Scott , 322 S.W.3d at 669 n.12 (majority opinion)). But more important to this case, the court of criminal appeals acknowledged that a potential offender could have more than one intent in delivering harassing conduct. Id. at 425 ; see also id. at 426 (Keller, P.J., concurring) (...

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