Ex parte Nuncio
| Decision Date | 10 April 2019 |
| Docket Number | No. 04-18-00127-CR,04-18-00127-CR |
| Citation | 579 S.W.3d 448 |
| Parties | EX PARTE Leonardo NUNCIO |
| Court | Texas Court of Appeals |
Opinion by: Beth Watkins, Justice
Authorities charged appellant Leonardo Nuncio with violating section 42.07(a)(1) of the Texas Penal Code, i.e., the harassment statute. Nuncio filed a pretrial application for writ of habeas corpus in which he contended sections 42.07(a)(1) and (b)(3) of the harassment statute were unconstitutionally overbroad and vague. The trial court denied his application. On appeal, Nuncio contends the trial court erred in denying his application.1 We affirm the trial court’s order denying Nuncio’s application for writ of habeas corpus.
According to the complaint prepared by an investigator from the Laredo Police Department ("LPD"), he met with the complainant at her residence. The complainant told the investigator she met with Nuncio for a job interview. The complainant stated that during the two-hour interview Nuncio stared at her breasts and "made several rude comments." Nuncio allegedly asked the complainant if she liked to "party" and asked "what have you and your boyfriend done (sexually)." He also asked if her breasts were "Ds or double Ds" and told the complainant she was "hot." Nuncio went on to ask the complainant to text her boyfriend "so you all can do a quickie in the back (of [the restaurant] )." Nuncio also told the complainant she "can't be a virgin" and work for him.
When the LPD investigator asked to meet with Nuncio, Nuncio refused and stated his intent to sue the complainant’s mother for comments she allegedly made on social media about her daughter’s encounter with Nuncio. The District Attorney’s Office subsequently approved an arrest warrant for Nuncio, and a sworn complaint alleged Nuncio, "with intent to harass, annoy, alarm, abuse, torment, or embarrass [the complainant], ... initiate [sic] communication with the complainant, and in the course of the communication, make [sic] an obscene comment, to-wit: making comments about her breasts, asking about her sexual history, and/or telling [her] she could not be a virgin and work for him."
In response to the charge, Nuncio filed an application for writ of habeas corpus, challenging the constitutionality of the harassment statute under which he was charged. After the trial court denied his application, Nuncio timely perfected this appeal.
In his first two appellate issues, Nuncio challenges the facial constitutionality of sections 42.07(a)(1) and (b)(3) of the Texas Penal Code, arguing the provisions are overbroad and vague. Section 42.07(a) provides that a person commits the offense of harassment if "with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person ... initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene[.]" TEX. PENAL CODE ANN . § 42.07(a)(1). "Obscene" is specifically defined as "a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function." Id. § 42.07(b)(3). Nuncio argues the challenged provisions are overbroad because they invade the area of protected speech and are vague in that they deprive a person of adequate notice of the prohibited activity and give law enforcement authorities too much discretion with regard to enforcement. As for his third issue, Nuncio suggests this court should overturn the Supreme Court’s opinion in Miller v. California , arguing its definition of obscenity is outdated.
A defendant may file a pretrial application for writ of habeas corpus to raise a facial challenge to the constitutionality of the statute under which the defendant is charged. Ex parte Thompson , 442 S.W.3d 325, 333 (Tex. Crim. App. 2014) ; Ex parte Zavala , 421 S.W.3d 227, 231 (Tex. App.—San Antonio 2013, pet. ref'd). An appellate court generally reviews a trial court’s decision to grant or deny an application for writ of habeas corpus under an abuse of discretion standard. Ex parte Thompson , 414 S.W.3d 872, 876 (Tex. App.—San Antonio 2013), aff'd , 442 S.W.3d at 330. However, when the trial court’s ruling is based purely on an application of law, such as the constitutionality of a statute, we review the ruling de novo. Id. ; see Ex Parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013), abrogated in part on other grounds , TEX. CONST . art. V, § 32 ; Lebo v. State , 474 S.W.3d 402 (Tex. App.—San Antonio 2015, pet. ref'd).
When presented with a challenge to the constitutionality of a statute, an appellate court usually presumes the statute is valid and the Legislature has not acted arbitrarily or unreasonably. Lo , 424 S.W.3d at 14–15. With respect to constitutional provisions other than the First Amendment, a facial challenge to the constitutionality of a statute succeeds only if it is shown the statute is unconstitutional in all of its applications. State v. Johnson , 475 S.W.3d 860, 864 (Tex. Crim. App. 2015). However, if the statute in question restricts and punishes speech based on its content, the usual presumption of constitutionality does not apply. Lo , 424 S.W.3d at 15. Content-based restrictions are presumptively invalid, and the State has the burden to rebut the presumption. Id. A court uses strict scrutiny in its review of a content-based statute. Thompson , 442 S.W.3d at 344–45 ; Lo , 424 S.W.3d at 15–16.
Nuncio contends sections 42.07(a)(1) and (b)(3) are unconstitutionally overbroad, violating the First and Fourteenth Amendments of the United States Constitution and Article I, section eight of the Texas Constitution.2 See U.S. CONST . amends. I, XIV ; TEX. CONST . art. I, § 8. When, as here, a party challenges a statute as both overbroad and vague, we must first consider the overbreadth challenged. See Ex parte Maddison , 518 S.W.3d 630, 636 (Tex. App.—Waco 2017, pet. ref'd) (citing Ex parte Flores , 483 S.W.3d 632, 643 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) ).
A statute may be challenged as overbroad, in violation of the First Amendment — and Article I, section 10 — if, in addition to proscribing activity that may be constitutionally forbidden, it sweeps within its coverage a substantial amount of expressive activity that is protected by the First Amendment. See Scott v. State , 322 S.W.3d 662, 665 n.2 (Tex. Crim. App. 2010), abrogated in part on other grounds , Wilson v. State , 448 S.W.3d 418, 423 (Tex. Crim. App. 2014). However, the overbreadth doctrine "is strong medicine that is used sparingly and only as a last resort." Johnson , 475 S.W.3d at 865. To qualify as unconstitutionally overbroad, "the statute must prohibit a substantial amount of protected expression and the danger that the statute will be unconstitutionally applied must be realistic and not based on ‘fanciful hypotheticals.’ " Id. (emphasis added) (quoting United States v. Stevens , 559 U.S. 460, 485, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (Alito, J., dissenting) ). Laws restricting the exercise of rights under the First Amendment are facially overbroad only if the impermissible applications of the law are real and substantial when judged in relation to the statute’s legitimate sweep. Maddison , 518 S.W.3d at 636. We must uphold a challenged statute if we can ascertain a reasonable construction that renders it constitutional. Id. ; Flores , 483 S.W.3d at 643.
The State argues the provisions challenged by Nuncio are not unconstitutionally overbroad because under a reasonable construction, they do not prohibit expression protected by the First Amendment. More specifically, the State contends the statute does not implicate the First Amendment because it proscribes the use of obscenity — unprotected speech — for purposes of harassment. In other words, the State argues the harassment statute’s "plain legitimate sweep" is to protect a victim from obscene communications intended to harass, annoy, alarm, abuse, torment, or embarrass. See TEX. PENAL CODE §§ 42.07(a)(1), (b)(3). Thus, because the only speech or communications prohibited by sections 42.07(a)(1) and (b)(3) are those that are obscene and intended to injure another, and obscenity is defined in subsection (b)(3) more narrowly than by the Supreme Court in Miller v. California , the provisions do not criminalize conduct protected by the First Amendment and are not overbroad.
To determine whether the State is correct, we must first determine the protection afforded by the free-speech guarantee of the First Amendment and then determine the meaning of the challenged statutory provision. See Scott , 322 S.W.3d at 668. The First Amendment, as applicable to the states through the Fourteenth Amendment, prohibits laws that abridge freedom of speech. U.S. CONST . amends. I, XIV. Article I, section 10 of the Texas Constitution provides similar protections.3 TEX. CONST . art. I, § 10. The constitutional guarantee of free speech generally protects the free communication and receipt of ideas, opinions, and information. Scott , 322 S.W.3d at 668 (citing Red Lion Broad. Co. v. F.C.C. , 395 U.S. 367, 390, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969) ; Chaplinsky v. New Hampshire , 315 U.S. 568, 571–72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) ). However, the First Amendment has never been treated as an absolute. Miller v. California , 413 U.S. 15, 23, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) ; Scott , 322 S.W.3d at 668. As the Supreme Court recognized United States v. Stevens , States may proscribe certain categories of speech without violation of First Amendment protections. 559 U.S. 460, 468–69, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (); see Cohen v. California , 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (...
To continue reading
Request your trial