Ex parte Johnston

• Decision Date: 14 April 2021
• Docket Number: NO. 09-19-00445-CR,09-19-00445-CR
• Parties: EX PARTE JUSTIN BRIAN JOHNSTON
• Court: Texas Court of Appeals

EX PARTE JUSTIN BRIAN JOHNSTON

NO. 09-19-00445-CR

Court of Appeals Ninth District of Texas at Beaumont

Submitted on May 21, 2020

April 14, 2021

On Appeal from the 359th District Court Montgomery County, Texas

Trial Cause No. 19-03-03754-CR

MEMORANDUM OPINION

Justin Brian Johnston¹, Appellant, was indicted for allegedly stalking an ex-girlfriend.² This accelerated appeal arises from the trial court's order denying Johnston the relief sought in his "Application for Pretrial Writ of Habeas Corpus and/or Motion to Quash Amended Indictment" (hereinafter the Pretrial Motions). The amended indictment alleged that Johnston committed the offense of stalking in violation of section 42.072(a) in that

on or about June 08, 2018, . . . [Johnston] did then and there on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, namely: [S.E.³], knowingly engage in conduct that: constitutes the offense of harassment; caused [S.E.] to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and would cause a reasonable person to feel harassed, annoyed alarmed, abused, tormented, embarrassed, or offended to-wit: by sending repeated, unsolicited electronic communications to [S.E.] between the dates of May 1, 2018 and October 1, 2018, in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend [S.E.]

In his Pretrial Motions, Johnston alleged that section 42.072 of the Texas Penal Code is facially unconstitutional because it is vague and overbroad and that it chills First Amendment speech. Johnston also argued that the indictment lacked specificity and certainty as to the acts for which he was being tried, put him in jeopardy, and failed to set forth the offenses in plain and intelligible words. The trial court had a hearing on and then denied the Pretrial Motions, and thereafter Johnston timely appealed. Both in the trial court and on appeal, Johnston argues section 42.072 of the Texas Penal Code is facially unconstitutional under due process because of its overbreadth and vagueness, and Johnston argues that it also violates the free speech protections in the First Amendment. Finding no error, we affirm.Standard of Review

The Court of Criminal Appeals "ha[s] held that an applicant may use pretrial writs to assert his or her constitutional protections with respect to double jeopardy and bail[,]" to challenge the facial constitutionality of the statute under which he or she is prosecuted, or to allege that the offense charged is barred by limitations. Ex parte Weise, 55 S.W.3d 617, 619-20 (Tex. Crim. App. 2001). We review a trial court's ruling on a pretrial writ of habeas corpus for an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). In conducting this review, we view the record evidence in the light most favorable to the trial court's ruling. Id.

Ordinarily, when reviewing the constitutionality of a statute, we presume that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Ex parte Lo, 424 S.W.3d 10, 14-15 (Tex. Crim. App. 2013); Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.] 2009, pet ref'd) (citing Rodriquez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002)). The party challenging the statute normally carries the burden to establish the statute's unconstitutionality. Rodriguez, 93 S.W.3d at 69. We shall uphold the statute if there is a reasonable construction that renders it constitutional. Maloney, 294 S.W.3d at 626 (citing Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979)). "Whether a statute is facially constitutional is a question of law that we review de novo." Ex parte Lo, 424 S.W.3d at 14. (citations omitted).

Section 42.072(a)(1) provides that a person commits the offense of stalking

. . . if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct that . . . constitutes an offense under Section 42.07, or that the actor knows or reasonably should know the other person will regard as threatening:

(A) bodily injury or death for the other person;

(B) bodily injury or death for a member of the other person's family or household or for an individual with whom the other person has a dating relationship; or

(C) that an offense will be committed against the other person's property[.]

Tex. Penal Code Ann. § 42.072(a)(1). Section 42.07 codifies the offense of harassment and states, in relevant part, that

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:

. . .

(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

Id. § 42.07(a)(7). Section 42.07(b)(1) defines "electronic communication" as follows:

"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 through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine; and

(B) a communication made to a pager.

Id. § 42.07(b)(1).

Void for Vagueness

In his first issue, Johnston argues that section 42.072(a)(1) is unconstitutionally vague. He argues that the statute is void for vagueness because the proscribed conduct—engaging in conduct that constitutes an offense under Section 42.07 by causing another person to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended—does not give reasonable notice of what constitutes criminal conduct as required by the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution and Article I, Sections 10 and 19 of the Texas Constitution. According to Johnston, the verbs in the section 42.07(a)(7) (harass, annoy, alarm, abuse, torment, embarrass, or offend) are not defined by the statute and do not lend themselves to objective definitions. Johnston acknowledges that the intermediate appellate courts have disagreed that these terms render the harassment statute impermissibly vague, and he cites Karenev v. State, 258 S.W.3d 210, 217 (Tex. App.—Fort Worth 2008), rev'd on other grounds, 281 SW.3d 428 (Tex. Crim. App. 2009), and Ex parte Barton, 586 S.W.3d 573, 584 (Tex. App.—Fort Worth 2019, pet. granted) (op. on reh'g), in arguing that this language in the harassment statute is impermissibly vague. Johnston also cites to several dissenting opinionsauthored by Presiding Judge Keller, wherein Presiding Judge Keller has described the harassment statute as unconstitutional.⁴

The State responds and argues the statute is not unconstitutional. The State relies on the majority opinion in Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010), in arguing that the telephone harassment portion of the stalking statute is not unconstitutionally overbroad or void for vagueness, and it does not implicate the First Amendment. According to the State, in Scott the Court rejected the same constitutional attacks to section 42.07(a)(4) that Johnston is making in this case to section 42.07(a)(7). The State contends that "[t]he only functional difference between the subsection at issue in Scott and the incorporated portion of the harassment statute in this case is that the subsection at issue here prohibits repeated 'electronic communications,' rather than repeated telephone communications."⁵

We agree that in Scott, the Court of Criminal Appeals addressed similar arguments to Johnston's when it analyzed the constitutionality of section 42.07(a)(4)regarding harassment and telephonic communications. See 322 S.W.3d at 667-71; see also Tex. Penal Code Ann. § 42.07(a)(4). The Court of Criminal Appeals explained in Scott that to determine if section 42.07(a)(4) implicates constitutionally protected speech we must "determine the protection afforded by the free-speech guarantee, and then we must determine the meaning of § 42.07(a)(4)." Scott, 322 S.W.3d at 668. In analyzing if the statute as written implicated the First Amendment's free-speech guarantee, the Court explained that

[t]he First Amendment provides, in relevant part, that "Congress shall make no law . . . abridging the freedom of speech." This guarantee of free speech, which was made applicable to the various states by the Due Process Clause of the Fourteenth Amendment, generally protects the free communication and receipt of ideas, opinions, and information[.] In a nation of ordered liberty, however, the guarantee of free speech cannot be absolute. The State may lawfully proscribe communicative conduct (i.e., the communication of ideas, opinions, and information) that invades the substantial privacy interests of another in an essentially intolerable manner.

Id. at 668-69 (citations omitted). The Court stated that considering the "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." Id. at 670 (citation omitted). The Court noted that the "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." Id. In other words, because the statute required the actor have the specific intent to "harass, annoy,alarm, abuse, torment, or embarrass another, he . . . makes repeated telephone communications . . . in a manner reasonable likely to harass, annoy, alarm abuse, torment, embarrass, or...