Ex parte Barton, PD-1123-19

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtWalker J.
Docket NumberPD-1123-19
Decision Date06 April 2022


No. PD-1123-19

Court of Criminal Appeals of Texas

April 6, 2022


Walker, J., delivered the opinion of the Court, in which Hervey, Richardson, Yeary, and Newell, JJ., joined. in which Keel, J., joined. Slaughter and McClure, JJ., dissented.


Walker J.

In this case, the court of appeals held that § 42.07(a)(7) of the Penal Code, the electronic harassment statute, is unconstitutionally vague and overbroad under the First Amendment. The court determined that it was not bound to follow our decision in Scott v. State. 322 S.W.3d 662 (Tex. Crim. App. 2010), disavowed on other grounds by Wilson v. State, 448 S.W.3d 418, 423 (Tex. Crim. App. 2014). In Scott, we held that § 42.07(a)(4) of the Penal Code, the telephone harassment statute, does not implicate the freedom of speech protections of the First Amendment of the United States Constitution because it prohibits non-speech conduct. 322 S.W.3d at 669-70. Today, we clarify our


holding in Wilson and its impact upon our holding in Scott. Following Scott's precedent, we hold that § 42.07(a)(7), the electronic harassment statute, also fails to implicate the First Amendment's freedom of speech protections because it too prohibits non-speech conduct. We reverse the judgment of the court of appeals.

I - Background

Charles Barton, Appellant, was charged with violating Penal Code § 42.07(a)(7), the electronic harassment statute, which provided:

(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.

Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec. 42.07, 1973 Tex. Gen. Laws 883, 956-57 (amended 2001)[1] (current version at Tex. Penal Code Ann. § 42.07(a)(7)).[2] Appellant filed a motion to quash the information arguing that the statute was unconstitutional and that the information failed to provide adequate notice because it lacked specificity. The motion was denied


after a hearing. Appellant then filed a pre-trial application for habeas corpus relief again raising the constitutionality of the statute. The trial court denied relief, but the court of appeals held § 42.07(a)(7) unconstitutional and reversed. Ex parte Barton, 586 S.W.3d 573, 585 (Tex. App.-Fort Worth 2019) (op. on reh'g). Acknowledging that other appellate courts upheld the constitutionality of § 42.07(a)(7) by applying Scott, the court of appeals below nevertheless declined to follow Scott-finding that Scott's reasoning was undermined by our later opinion, Wilson. Id. at 578 n.11, 579-80. The court of appeals found that § 42.07(a)(7) implicated the First Amendment and, following the precedent of its earlier opinion in Karenev v. State, held that § 42.07(a)(7) was unconstitutionally vague and overbroad. Id. at 580-85 (citing Karenev v. State, 258 S.W.3d 210, 213, 218 (Tex. App.-Fort Worth 2008), rev'd on other grounds, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009)).

We granted the State's petition for discretionary review which raised two grounds:

1.The court of appeals decided a facial overbreadth claim that was not preserved at trial or raised on appeal.
2. Is Tex. Penal Code § 42.07(a)(7), which prohibits harassing electronic communications, facially unconstitutional?

We answer the question raised by State's second ground for review: No. Section 42.07(a)(7) does not implicate the First Amendment, and it satisfies the "rational basis" test. The overbreadth doctrine is inapplicable, and we dismiss the State's first ground for review as moot.

II - Overbreadth and Preservation of Error

The State's first ground for review argues that the court of appeals erred in considering overbreadth under the First Amendment because Appellant failed to present a proper overbreadth argument in the trial court. The State and Appellant dispute whether the bare assertion, in


Appellant's motion to quash and the hearing on that motion, [3] that the electronic harassment statute is "overly broad" and "chills" protected speech is sufficiently specific to preserve the overbreadth issue for consideration on appeal.

"The First Amendment doctrine of substantial overbreadth is an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others." Massachusetts v. Oakes, 491 U.S. 576, 581 (1989). "In the First Amendment context, . . . a law may be invalidated as overbroad if 'a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.'" United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008)). "[O]utside the limited First Amendment context, a criminal statute may not be attacked as overbroad." Schall v. Martin, 467 U.S. 253, 268 n.18 (1984); United States v. Salerno, 481 U.S. 739, 745 (1987) ("[W]e have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment.").

Due to our resolution of the State's second ground for review-that § 42.07(a)(7) does not implicate the First Amendment[4]-overbreadth is inapplicable. See Martin, 467 U.S. at 268 n.18; Salerno, 481 U.S. at 745. Because the doctrine is inapplicable, whether Appellant's bare references to overbreadth are sufficient to preserve the issue for appeal is entirely academic and unnecessary for our analysis.

We therefore dismiss the State's first ground for review as moot.


III - Vagueness Challenges Are As-Applied Unless the First Amendment Is Implicated

The State's second ground for review complains that the court of appeals erred in holding that § 42.07(a)(7) is unconstitutionally vague and overbroad on its face.

Generally, "in addressing a vagueness challenge," courts are to "consider whether the statute is vague as applied to a defendant's conduct before considering whether the statute may be vague as applied to the conduct of others." Wagner v. State, 539 S.W.3d 298, 314 (Tex. Crim. App. 2018). "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law." Id. (internal quotations omitted).

This general rule gives way when freedom of speech under the First Amendment is involved. "[W]hen a vagueness challenge involves First Amendment considerations, a criminal law may be held facially invalid even though it may not be unconstitutional as applied to the defendant's conduct." State v. Doyal, 589 S.W.3d 136, 144 (Tex. Crim. App. 2019) (internal quotations omitted). A law implicating First Amendment freedoms may be found facially vague without "a showing that there are no possible instances of conduct clearly falling within the statute's prohibitions." Id. at 145.

Determining that § 42.07(a)(7) implicates the First Amendment, the court of appeals evaluated vagueness without first considering whether Appellant showed the statute was vague as applied to his own conduct. See Barton, 586 S.W.3d at 580-85.

IV - Scott v. State: Conduct Under § 42.07(a)(4) is Non-Speech Conduct

In finding § 42.07(a)(7) unconstitutionally vague, the court of appeals distinguished our opinion in Scott. See id. at 579. Although Scott involved a First Amendment challenge to a different


subsection of § 42.07-subsection (a)(4), the telephone harassment statute-it has been relied upon by other appellate courts to conclude that subsection (a)(7), the electronic harassment statute, does not implicate the First Amendment. See, e.g., State v. Grohn, 612 S.W.3d 78, 83 (Tex. App.-Beaumont 2020, pet. filed); Ex parte McDonald, 606 S.W.3d 856, 859-61 (Tex. App.-Austin 2020, pet. filed); Lebo v. State, 474 S.W.3d 402, 406-08 (Tex. App.-San Antonio 2015, pet. ref'd).[5]

In Scott, the appellant argued that § 42.07(a)(4), the telephone harassment statute, is unconstitutionally "vague and overbroad" in violation of the First Amendment. Scott, 322 S.W.3d at 665. This statute provided:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he:
(4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another[.]

Tex. Penal Code Ann. § 42.07(a)(4). We concluded that the 2001 version of § 42.07(a)(4) is not communicative conduct protected by the First Amendment because the statute criminalizes harassing


conduct that, although it may include spoken words, is essentially noncommunicative. Scott, 322 S.W.3d at 669-70. Furthermore, we determined that "persons whose conduct violates § 42.07(4)(a) 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." Id. at 670. We held that because § 42.07(a)(4) does not implicate the First Amendment, Scott failed to show it was unconstitutionally vague on its face. Id. at 669, 670-71.

As the court of appeals correctly noted: "Because section 42.07(a)(4) did not reach communicative conduct, it did not implicate the free-speech guarantee of the First Amendment." Barton, 586 S.W.3d at 578 (citing Scott, 322 S.W.3d at 669-70). The harassing conduct is non-communicative. It is not speech.

V - Wilson did not Change Scott's Holding

Although the court of appeals recognized our holding in...

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