Ex parte Sanders
| Decision Date | 06 April 2022 |
| Docket Number | PD-0469-19 |
| Parties | EX PARTE NATHAN SANDERS, Appellant |
| Court | Texas Court of Criminal Appeals |
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SEVENTH COURT OF APPEALS LUBBOCK COUNTY
Walker, J., delivered the opinion of the Court, in which Hervey, Richardson, Yeary, and Newell, JJ., joined. Yeary J., filed a concurring opinion. Keller, P.J., filed a dissenting opinion, in which Keel, J., joined. Slaughter and McClure, JJ., dissented.
In Scott v. State, 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 662, 669-70 (Tex Crim. App. 2010), disavowed on other grounds by Wilson v. State, 448 S.W.3d 418, 423 (Tex. Crim. App. 2014). In the case before us today, we clarify and reaffirm our holding in Scott. Following Scott's precedent, we hold that § 42.07(a)(7) of the Penal Code, the electronic harassment statute, also fails to implicate the First Amendment's freedom of speech protections because it too prohibits non-speech conduct. We affirm the judgment of the court of appeals upholding § 42.07(a)(7) against Appellant's First Amendment challenge.
Nathan Sanders, Appellant, was charged with violating Penal Code § 42.07(a)(7), the electronic harassment statute, which provides:
Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec. 42.07, 1973 Tex. Gen. Laws 883, 956-57 (amended 2013)[1] (current version at Tex. Penal Code Ann. § 42.07(a)(7)).[2] Appellant filed a pre-trial application for habeas corpus relief on the basis that the statute was unconstitutionally overbroad. The trial court denied relief, and the court of appeals affirmed. Ex parte Sanders, No. 07-18-00335-CR, 2019 WL 1576076, at *1 (Tex. App.-Amarillo Apr. 8, 2019) (). The court of appeals determined that, for First Amendment purposes, § 42.07(a)(7) was the same as § 42.07(a)(4) which we upheld against a similar First Amendment challenge in Scott. Id. at *2-3. The appellate court concluded that Scott was controlling and rejected Appellant's First Amendment challenge. Id. at *3-4.
We granted Appellant's petition for discretionary review which argues that § 42.07(a)(7) violates the First Amendment and that Scott should be overruled.[3]
Before we address the substance of Appellant's challenge, we begin with the State's threshold argument that Appellant's ground for review is not properly before us. The State points out that Appellant did not raise Scott before the trial court in his pre-trial application for writ of habeas corpus. The State also faults Appellant for failing to make a proper First Amendment overbreadth argument in his pre-trial application. As the State sees it, Appellant's ground for review is not adequately presented, and any opinion on the constitutionality of § 42.07(a)(7) or regarding Scott would be advisory.
It is well-established that a decision of the trial court may be affirmed if it is correct on any applicable theory of law-even if that theory was not presented to the trial court. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Penry v. State, 903 S.W.2d 715, 750 n.34 (Tex. Crim. App. 1995). It is also well-established that "[i]n our discretionary review capacity we review 'decisions' of the courts of appeals." Stringer v. State, 241 S.W.3d 52, 59 (Tex. Crim. App. 2007) (quoting Lee v. State, 791 S.W.2d 141, 142 (Tex. Crim. App. 1990)); Tex.R.App.P. 66.1. Thus, it is not dispositive that a party may not have preserved an issue in the trial court where the court of appeals properly addressed the issue, and we granted discretionary review of it. Gallups v. State, 151 S.W.3d 196, 199 n.3 (Tex. Crim. App. 2004).
The court of appeals affirmed the trial court, finding that § 42.07(a)(7) is constitutional based on Scott. Appellant challenges the court of appeals's decision and its underlying basis in Scott. Scott was properly addressed by the court of appeals. Scott's holding was relevant to § 42.07(a)(7), several other courts of appeals that considered the constitutionality of § 42.07(a)(7) relied on Scott, and both parties argued the applicability of Scott in their respective appellate briefs. Accordingly, Appellant's ground for review is properly before us, regardless of whether Appellant's pre-trial application raised Scott or presented an adequate First Amendment overbreadth argument.
The court of appeals, following the lead of several other appellate courts, [4] upheld § 42.07(a)(7) by relying upon Scott v. State. In Scott, the defendant 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:
Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec. 42.07, 1973 Tex. Gen. Laws 883, 956-57 (amended 2001) (current version at Tex. Penal Code Ann. § 42.07(a)(4)). We concluded that the 2001 version of § 42.07(a)(4) is not susceptible to being considered communicative conduct protected by the First Amendment because the statute criminalized harassing conduct that, although it may include spoken words, was essentially noncommunicative. Scott, 322 S.W.3d at 669-70.[5] Furthermore, we determined that "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. We held that § 42.07(a)(4) did not implicate the First Amendment, and, accordingly, Scott failed to show it was unconstitutionally vague on its face. Id. at 669, 670-71.
Additionally, we noted that while the First Amendment "generally protects the free communication and receipt of ideas, opinions, and information," the Id. at 668-69. Therefore, if the conduct was, in fact, communicative:
To 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 protected 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. at 670. In other words, communicative conduct-speech-that invades the substantial privacy interests of another in an essentially intolerable manner is outside the protection of the First Amendment. This particular discussion in Scott is the crux of Appellant's argument before us today.
IV - Scott and § 42.07(a)(7)
In considering Appellant's case below, the court of appeals determined that the text of the electronic harassment statute, § 42.07(a)(7), is-for the purposes of First Amendment analysis- identical to § 42.07(a)(4):
As others have pointed out . . . all subsections of section 42.07(a) require the same specific intent, that "to harass, annoy, alarm, abuse, torment, or embarrass another." And while subsection (a)(4) is violated when the actor "makes" repeated telephone communications and (a)(7) is violated when the actor "sends" repeated electronic communications, both subsections require for guilt that the repeated communications occur "in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another."
Sanders, 2019 WL 1576076, at *3. Appellant also notes that although Scott was concerned with the telephone harassment statute instead of the electronic harassment statute, "the rationale is the same."[6]
We agree with the court of appeals's reliance on Scott. For First Amendment purposes, Scott's holding that § 42.07(a)(4), the telephone harassment statute, does not implicate the First Amendment should apply equally to § 42.07(a)(7), the electronic harassment statute. Accordingly, if Scott is still good law, then § 42.07(a)(7) does not implicate the First Amendment.
Appellant argues that Scott should be reconsidered because our opinion in that case "created, ex nihilo, a new category of unprotected speech: speech which, for purposes of inflicting emotional distress, invades substantial privacy interests."[7] Appellant would have us overrule Scott and, in the absence of Scott, hold that § 42.07(a)(7) is unconstitutional.
"We ordinarily observe the doctrine of stare decisis 'to promote judicial efficiency and consistency encourage reliance on judicial decisions, and contribute to the integrity of the judicial process.'" Garcia v. State, 614 S.W.3d 749, 754 (Tex. Crim. App. 2019) (quoting Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim. App. 2000)). Accordingly, we "should not frivolously overrule established precedent." Ex parte Thomas, 623 S.W.3d 370, 381 (Tex. Crim....
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