Griswold v. State, 05-19-01561-CR

CourtCourt of Appeals of Texas
Writing for the CourtOpinion by Justice Schenck
Citation640 S.W.3d 929 (Mem)
Parties Thomas George GRISWOLD, III, Appellant v. The STATE of Texas, Appellee
Docket Number05-19-01561-CR
Decision Date24 February 2022

640 S.W.3d 929 (Mem)

Thomas George GRISWOLD, III, Appellant
The STATE of Texas, Appellee

No. 05-19-01561-CR

Court of Appeals of Texas, Dallas.

Opinion Filed February 24, 2022
Rehearing En Banc Denied February 24, 2022

Niles S. Illich, Scott H. Palmer, P.C., Dallas, for Appellant.

Jeffrey William Shell, Kenda L. Culpepper, Rockwall County District Attorney's Office, Rockwall, for Appellee.

Before the Court sitting En Banc.


Opinion by Justice Schenck

Confronting a res nova question for our Court, the panel has declared an important criminal statute to be unconstitutional. In so doing, the Court deepens an existing division among the appellate courts of this State and places our court in the distinct minority view. The State has sought reconsideration en banc , which we now deny despite the new precedent we set for this Court and the effect of our holding. I disagree with the panel's analysis and conclusions and, regardless of my view of the merits, further disagree with the Court's decision declining to consider this case en banc. I therefore dissent.


Section 42.072(a) of the penal code proscribes a person's knowingly engaging in

640 S.W.3d 930

conduct that either constitutes an offense under section 42.07 of the penal code or that the actor knows or reasonably should know another person will regard as threatening an offense against the person, a member of her household, her romantic partner, or her property. See TEX. PENAL CODE § 42.072(a). The indictment here alleged appellant committed the offense of stalking by "engag[ing] in conduct that constituted an offen[s]e under section 42.07 and/or conduct that [appellant] knew or reasonably should have known [the complainant] would regard as threatening bodily injury for [the complainant]." (emphasis added).

The panel opinion addresses appellant's constitutional challenge to section 42.07 and concludes that subsection 42.072(a) is unconstitutional to the extent it incorporates section 42.07. See Griswold v. State , 637 S.W.3d 888, 892 (Tex. App.—Dallas 2021, no pet. h.). However, in this case, no one attacked the second half of the stalking statute as set forth in the indictment: the portion that alleges appellant knew or reasonably should have known the complainant would regard appellant's conduct as threatening bodily injury to the complainant. See In re Ginsberg , 630 S.W.3d 1, 10 (Tex. 2018) (defining constitutional avoidance as canon of statutory construction requiring courts decide constitutional questions only when issue cannot be resolved on non-constitutional grounds). If only a portion of a statute is challenged as facially unconstitutional, the court of criminal appeals has directed that we are to leave the remainder of the statute intact, so long as doing so would be feasible. See Salinas v. State , 523 S.W.3d 103, 110 (Tex. Crim. App. 2017). As the State notes in its Petition for Reconsideration, the unchallenged portion of the stalking statute presents a fully viable alternate ground for conviction.

Because I would have avoided the constitutional question, I dissent from the panel opinion's analysis.


Section 42.07, which is incorporated in section 42.072(a), provides that a person commits harassment if with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person sends repeated electronic communications1 in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another. See PENAL § 42.07(a)(7).

The panel opinion concludes that because the offense described by section 42.07 is "open to various ‘uncertainties of meaning,’ " its incorporation into section 42.0722 renders section 42.072 unconstitutionally

640 S.W.3d 931

vague on its face. See Griswold , 637 S.W.3d at 892. The panel opinion further concludes the stalking statute is unconstitutionally overbroad because the statute includes "electronic communications," which the panel concludes "goes ‘beyond a lawful proscription of intolerably invasive conduct and instead reaches a substantial amount of speech protected by the First Amendment.’ " See id. at 891–92. More specifically, the panel opinion concludes the inclusion of the terms "harass, annoy, alarm, abuse, torment, embarrass, or offend" leaves the section prohibiting sending "repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another" open to various "uncertainties of meaning." See id. at 892.

That is all well enough. But the constitutional vagueness standard we apply here does not require the legislature to craft language free from the prospect of debate, even reasonable debate, over the meaning of its text. See State v. Doyal , 589 S.W.3d 136, 146 (Tex. Crim. App. 2019) (reciting standard for constitutional vagueness as "sufficiently clear (1) to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and (2) to establish determinate guidelines for law enforcement"); Scott v. State , 322 S.W.3d 662, 669 (Tex. Crim. App. 2010) (holding plain text of section 42.07 "is directed only at persons who [have] the specific intent to inflict emotional distress.").3

The controlling question, as I understand it, is whether the statute impermissibly quells protected speech and is so unclear in its application that a person of ordinary intelligence would be left to guess at its application. See Garcia v. State , 583 S.W.3d 170, 174–75 (Tex. App.—Dallas 2018, pet. ref'd) (First Amendment held to not bar prosecution for threatening to murder police officers on social media). Discerning when an electronic communication is "reasonably likely to" harass or offend another is, to be sure, a challenge, just as determining whether an oral statement is "a true threat" and thus subject to prosecution and conviction despite the obvious free speech implications. See id. Any forward-looking attempt to craft language precisely and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT