Ex parte McDonald, 03-19-00652-CR

CourtCourt of Appeals of Texas
Writing for the CourtThomas J. Baker, Justice
Citation606 S.W.3d 856
Parties EX PARTE Randy Scott MCDONALD
Docket NumberNO. 03-19-00652-CR,03-19-00652-CR
Decision Date19 June 2020

606 S.W.3d 856


NO. 03-19-00652-CR

Court of Appeals of Texas, Austin.

Filed: June 19, 2020
Reconsideration En Banc Denied August 18, 2020


Thomas J. Baker, Justice

Randy Scott McDonald was charged with the offense of harassment for sending repeated electronic communications to Jeffrey Comstock. See Tex. Penal Code § 42.07(a)(7). After being charged, McDonald filed a pretrial application for writ of habeas corpus arguing that subsection 42.07(a)(7) of the Penal Code is facially unconstitutional. See Tex. Code Crim. Proc. art. 11.09 ; Tex. Penal Code § 42.07(c). The trial court denied McDonald's pretrial habeas application. McDonald appeals the trial court's ruling. We will affirm the trial court's order denying McDonald's application for writ of habeas corpus.


"[P]retrial habeas, followed by an interlocutory appeal, is an ‘extraordinary remedy,’ and ‘appellate courts have been careful to ensure that a pretrial writ is not misused to secure pretrial appellate review of matters that in actual fact should not be put before appellate courts at the pretrial stage.’ " Ex parte Ellis , 309 S.W.3d 71, 79 (Tex. Crim. App. 2010) (quoting Ex parte Doster , 303 S.W.3d 720, 724 (Tex. Crim. App. 2010) ). "Pretrial habeas can be used to bring a facial challenge to the constitutionality of the statute that defines the offense." Id. A determination regarding whether a statute is facially unconstitutional is a question of law subject to de novo review. Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). A facial challenge is essentially "a claim that ‘the statute, by its terms, always operates unconstitutionally.’ " Lebo v. State , 474 S.W.3d 402, 405 (Tex. App.—San Antonio 2015, pet. ref'd) (quoting Gillenwaters v. State , 205 S.W.3d 534, 536 n.2 (Tex. Crim. App. 2006) ). When assessing a statute's constitutionality, reviewing courts "presume that the statute is valid and that the legislature has not acted unreasonably or arbitrarily" when enacting the statute. Rodriguez v. State , 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). Moreover, the party presenting the statutory challenge has the burden of establishing that the statute is unconstitutional. Id.

"The First Amendment overbreadth doctrine holds that a statute is facially invalid if, as written, it sweeps within its coverage a ‘substantial’ amount of First Amendment-protected expression as compared to any activity it proscribes

606 S.W.3d 859

constitutionally." Ex parte Perry , 471 S.W.3d 63, 88 (Tex. App.—Austin 2015) (quoting Ex parte Lo , 424 S.W.3d at 18 ), rev'd in part on other grounds , 483 S.W.3d 884 (Tex. Crim. App. 2016). "[T]he overbreadth doctrine allows a statute to be invalidated on its face even if it has legitimate application, and even if the parties before the court have suffered no constitutional violation." Ex parte Ellis , 309 S.W.3d at 91. "The overbreadth doctrine is ‘strong medicine’ that should be employed ‘sparingly’ and ‘only as a last resort.’ " Id. (quoting Broadrick v. Oklahoma , 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) ). "[T]he overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Id. (quoting Broadrick , 413 U.S. at 615, 93 S.Ct. 2908 ).

The concepts of overbreadth and vagueness can be intertwined. See Long v. State , 931 S.W.2d 285, 288 (Tex. Crim. App. 1996). "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." Scott v. State , 322 S.W.3d 662, 665 n.2 (Tex. Crim. App. 2010), abrogated on other grounds by Wilson v. State , 448 S.W.3d 418 (Tex. Crim. App. 2014). Generally, arguments alleging that a statute is unduly vague requires a showing that it is overly vague "as applied" to the defendant. Bynum v. State , 767 S.W.2d 769, 774 (Tex. Crim. App. 1989) ; see Scott , 322 S.W.3d at 670-71 (explaining that because statute did "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"). "If, however, the challenged statute implicates the free-speech guarantee of the First Amendment—that is, if the statute is susceptible of application to speech guaranteed by the First Amendment—the defendant may argue that the statute is overbroad on its face because its vagueness makes it unclear whether it regulates a substantial amount of protected speech." Blanchard v. State , No. 03-16-00014-CR, 2016 WL 3144142, at *1 (Tex. App.—Austin June 2, 2016, pet. ref'd) (mem. op., not designated for publication); see United States v. Williams , 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) ; Scott , 322 S.W.3d at 665 n.3.

In his habeas application, McDonald urged that subsection 42.07(a)(7) of the Penal Code is facially unconstitutional because it is overbroad and vague. That provision provides, in relevant part, as follows:

(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.

Tex. Penal Code § 42.07(a)(7) ; see also id. § 42.07(b)(1) (defining "[e]lectronic communication"). Both McDonald's overbreadth and vagueness challenges asserted that the statute criminalizes communication that is within the scope of protected speech, and McDonald did not assert that the statute was overly vague "as applied" to him.

Previously, the Court of Criminal Appeals addressed the constitutionality of subsection 42.07(a)(4), which contains a prohibition on harassing phone calls that is similar to the prohibition on certain electronic communications in subsection

606 S.W.3d 860

42.07(a)(7). See Scott , 322 S.W.3d at 667-71. Specifically, the Court was asked to address whether subsection 42.07(a)(4) implicated the First Amendment free-speech guarantee when confronted with vagueness and overbreadth challenges to the statute. Id. at 667-69. The Court concluded that the provision does not implicate the First Amendment's free-speech guarantee because the statute "is directed only at persons who, with the specific intent to inflict emotional distress, repeatedly use the telephone to invade another's privacy and do so in a manner reasonably likely to inflict emotional distress," meaning 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 669-70. In other words, the Court explained that, "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." Id. at 670. Consequently, the Court reasoned that "[t]o 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 covered 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.

Following that ruling by the Court of Criminal Appeals, this Court was presented with similar arguments regarding subsection 42.07(a)(7), which is the provision at issue in this case. See Blanchard , 2016 WL 3144142. In Blanchard , this Court explained that "[t]he free-speech analysis in Scott is equally applicable to subsection 42.07(a)(7)." Id. at *3. Although this Court noted that the language in subsections 42.07(a)(4) and 42.07(a)(7) differs slightly in that subsection 42.07(a)(4) "provides an alternative manner of committing the offense by making repeated phone calls ‘anonymously,’ " this Court reasoned that the slight "textual difference is inconsequential to the First Amendment analysis" and noted that the remaining statutory language in the two subsections "is identical." Id. (quoting Tex. Penal Code § 42.07(a)(4) ).

Further, this Court observed that "[e]ach of the subsections in section 42.07 has the same subjective intent requirement that the actor engage in the particular form of communicative conduct with the specific intent to" harm the victims by inflicting one of the types of emotional distress listed in the statute. Id. For that reason, this Court reasoned that "an actor who violates subsection 42.07(a)(7) has no more an intent to engage in legitimate communication of ideas, opinions, or information than an actor whose telephone calls violate subsection 42.07(a)(4)" and that "[r]epeated electronic communications made with the specific intent to inflict one of the designated types of emotional distress ‘for its own sake’ invade the substantial privacy interests of the victim in ‘an essentially intolerable manner.’ " Id. (quoting Scott , 322 S.W.3d at 670 ); see also Wagner v. State , 539 S.W.3d 298, 311, 312 (Tex. Crim. App. 2018) (observing that Court of Criminal Appeals previously explained that "the First Amendment...

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