Ex parte Nuncio
| Docket Number | PD-0478-19 |
| Decision Date | 06 April 2022 |
| Citation | 662 S.W.3d 903 |
| Parties | EX PARTE Leonardo NUNCIO, Appellant |
| Court | Texas Court of Criminal Appeals |
Mark Bennett, Houston, Oscar O. Pena, Laredo, Lane Haygood, Odessa, for Appellant.
John R. Messinger, for State.
Walker, J., delivered the opinion of the Court, in which Hervey, Richardson, Yeary, and Newell, JJ., joined.
Section 42.07(a)(1) of the Penal Code, the obscene harassment statute, makes it an offense for a person with the specific intent to harass, annoy, alarm, abuse, torment, or embarrass another to initiate communication and, in the course of the communication, make a comment, request, suggestion, or proposal that is "obscene." TEX. PENAL CODE Ann. § 42.07(a)(1). Appellant argues that this statute is unconstitutionally vague and overbroad in violation of the First Amendment to the United States Constitution.
We find that § 42.07(a)(1) is a content-based regulation of speech implicating the First Amendment. We further find that § 42.07(a)(1) is potentially overbroad by its incorporation of the definition of "obscene" under § 42.07(b)(3). However, we conclude that Appellant's overbreadth challenge fails because he does not attempt to make the required showing that a substantial amount of protected speech is affected by the statute, beyond its plainly legitimate sweep. Finally, we hold that § 42.07(a)(1) is not unconstitutionally vague under the First Amendment. We affirm the judgment of the court of appeals.
I — Background
Leonardo Nuncio, Appellant, was charged with violating Penal Code § 42.07(a)(1), the obscene harassment statute, which provides:
TEX. PENAL CODE Ann. § 42.07(a)(1), (b)(3). Appellant filed a pre-trial application for writ of habeas corpus on the basis that the statute is unconstitutionally vague and overbroad under the First Amendment. The trial court denied Appellant's habeas corpus application, and the court of appeals affirmed. Ex parte Nuncio , 579 S.W.3d 448, 451–52 (Tex. App.—San Antonio 2019). The court of appeals, accepting the State's appellate argument that § 42.07(a)(1) restricted obscenity proscribable under the First Amendment, held that the statute is not overbroad. Id. at 454, 456. As for Appellant's vagueness challenge, the court of appeals found that the statute's use of "another" is not unconstitutionally vague. Id. at 457. The "another" that the defendant must intend to harass is the same person that the defendant initiates communication with and to whom the defendant makes the obscene comment. Id.
Justice Rodriguez dissented. Id. at 458 (Rodriguez, J., dissenting). She agreed with the panel majority that § 42.07(a)(1) is not unconstitutionally overbroad because it proscribes obscenity not protected by the First Amendment. Id. However, she believed that § 42.07(a)(1) suffers from the same issues that plagued the "stalking" provision of the 1993 harassment statute which we held was unconstitutionally vague on its face in Long v. State . Id. at 459 (discussing Long v. State , 931 S.W.2d 285, 297 (Tex. Crim. App. 1996) ). Justice Rodriguez additionally agreed with Appellant that "another" is vague because "the person receiving" the obscene communication might not necessarily be the same person which the defendant intends to harass. Id.
We granted Appellant's petition for discretionary review, which raises four grounds challenging § 42.07(a)(1) as unconstitutionally vague and overbroad.1
II — Preservation of Error
Before we address the First Amendment questions before us, we begin with the threshold argument posed by the State, via the State Prosecuting Attorney's office, that Appellant failed to present a proper argument challenging § 42.07(a)(1) as constitutionally overbroad before the trial court.2 The State argues that, although Appellant recited overbreadth law and claimed that the statute was overbroad, he failed to present a complete—"true"—overbreadth claim, thus failing to preserve the issue for appeal.3 The State takes the position that Appellant's overbreadth claims in the trial court were incomplete, failed to apply the appropriate tests, and primarily served his vagueness claims which formed the bulk of his argument.
As we have oft-stated:
Preservation of error is a systemic requirement on appeal. If an issue has not been preserved for appeal, neither the court of appeals nor this Court should address the merits of that issue. Ordinarily, a court of appeals should review preservation of error on its own motion, but if it does not do so expressly, this Court can and should do so when confronted with a preservation question.
Ford v. State , 305 S.W.3d 530, 532–33 (Tex. Crim. App. 2009) ; see also Wilson v. State , 311 S.W.3d 452, 473–74 (Tex. Crim. App. 2010) ; Blackshear v. State , 385 S.W.3d 589, 590–91 (Tex. Crim. App. 2012) ; Darcy v. State , 488 S.W.3d 325, 327–28 (Tex. Crim. App. 2016) ; Wood v. State , 560 S.W.3d 162, 165 n.8 (Tex. Crim. App. 2018).
Pena v. State , 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) ; Lankston v. State , 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). "This gives the trial judge and the opposing party an opportunity to correct the error." Pena , 285 S.W.3d at 464 (citing Reyna v. State , 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) ). Accordingly, a "general or imprecise objection may be sufficient to preserve error for appeal, but only if the legal basis for the objection is obvious to the court and to opposing counsel." Buchanan v. State , 207 S.W.3d 772, 775 (Tex. Crim. App. 2006) (emphasis in original). "Usually, for a complaint to be obvious," there will "have been statements or actions on the record that clearly indicate what the judge and opposing counsel understood the argument to be." Clark v. State , 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).
In his pre-trial application for writ of habeas corpus, Appellant specifically 4 As the State concedes, Appellant cited appropriate overbreadth law,5 showing the legal basis for the ruling sought.6 Appellant at the very least attempted to make overbreadth arguments; he presented several different examples of speech that would be prohibited by the statute but should be—in his estimation—protected.7 In other words, Appellant at least contended that the statute swept up a substantial amount of protected speech beyond its plainly legitimate sweep. See United States v. Williams , 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). At this juncture, we need not dwell on how well Appellant made his overbreadth claims in the trial court. Whatever criticisms the State may have about the quality or depth of Appellant's overbreadth argument and whether Appellant conflated overbreadth with other First Amendment doctrines, insofar as preservation of error is concerned, it is clear that Appellant argued that the statute was overbroad.
Furthermore, there is no doubt that the State, via the Webb County District Attorney's office, understood the complaint. The State's written response noted "Applicant argues that the statute is unconstitutional as applied and per se on First Amendment grounds and in regards to overbreadth[.]"8 The response included an entire section dedicated to specifically arguing that "The Statute Is Not Overbroad."9
Finally, the trial court understood the objection and ruled on it. The trial court's order noted that the court "considered the merits" of Appellant's "request that the relevant portions of the subject statute as described in the application for habeas corpus relief, including Texas Penal Code § 42.07(a) and (a)(1) and (b)(3) be struck down as constitutionally and legally invalid, overbroad[.]"10 The court was "of the opinion that said motion should be and is hereby DENIED on its merits."11
The arguments Appellant presented in his pre-trial application for writ of habeas corpus were patently sufficient to make both the trial court and the State aware of his contention that § 42.07(a)(1) was unconstitutionally overbroad under the First Amendment. We find that Appellant's objection had the necessary specificity to preserve the issue for appeal.
III — § 42.07(a)(1) Regulates Speech, and Scott v. State Does Not Apply
The Free Speech Clause of the First Amendment to the United States Constitution provides that "Congress shall make no law ... abridging the freedom of speech ...." U.S. CONST. amend. I. Although the amendment refers to "Congress," it ...
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