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

• Court: Court of Appeals of Texas
• Citation: 637 S.W.3d 888
• Docket Number: No. 05-19-01561-CR,05-19-01561-CR
• Parties: Thomas George GRISWOLD III, Appellant v. The STATE of Texas, Appellee
• Decision Date: 21 December 2021

637 S.W.3d 888

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

No. 05-19-01561-CR

Court of Appeals of Texas, Dallas.

Opinion Filed December 21, 2021

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

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

Before Justices Molberg, Goldstein, and Smith

OPINION ON REHEARING

Opinion by Justice Goldstein

637 S.W.3d 889

On the Court's own motion, we withdraw our October 26, 2021 opinion and judgment. This is now the opinion of the Court.

Thomas George Griswold III appeals his conviction for the third-degree felony offense of stalking. In three issues, Griswold asserts (1) the evidence is insufficient to support his conviction, (2) the trial court abused its discretion by denying his motion for new trial without conducting an evidentiary hearing, and (3) the trial court erred by denying his motion to quash the indictment because the stalking statute is unconstitutionally overbroad and vague on its face. Because we agree with Griswold that the stalking statute is unconstitutionally overbroad and vague on its face, we reverse and remand to the trial court for further proceedings consistent with this opinion.

BACKGROUND

Griswold was indicted for stalking under section 42.072 of the penal code for conduct beginning on or about January 1, 2007 and ending on April 24, 2018. Specifically, the indictment alleged that Griswold:

did then and there on more than one occasion and pursuant to the same scheme or course of conduct directed specifically toward [the complainant] that [Griswold] knowingly engaged in conduct that constituted an offence under section 42.07 and/or conduct that [Griswold] knew or reasonably should have known [the complainant] would regard as threatening bodily injury for [the complainant] and or bodily injury or death, and did cause [the complainant] to be placed in fear of bodily injury or death, to-wit: [listing five specific allegations of repeated communications, public declarations on Facebook, public statements, and public threats].

The indictment continued by alleging Griswold's conduct caused the complainant "to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended" and "would cause a reasonable person to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended."

At the time Griswold was indicted, section 42.072 of the penal code, entitled "Stalking," provided:

(a) A person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct that:

(1) constitutes an offense under Section 42.07 ...:

(2) causes the other person ... to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and

(3) would cause a reasonable person to:

...

637 S.W.3d 890

(D) feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.

TEX. PENAL CODE ANN. § 42.072(a). Section 42.07, the "electronic-communications-harassment statute," provided:

(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 ANN. § 42.07(a)(7). The definition of electronic communication encompasses current forms of communication and means:

a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes:

(A) a communication initiated through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine; and

(B) a communication made to a pager.

TEX. PENAL CODE ANN. § 42.07(b)(1).

Prior to trial, Griswold filed a motion to quash the indictment alleging the stalking statute was unconstitutionally vague and overbroad, citing Ex parte Barton , 586 S.W.3d 573, 583–85 (Tex. App.—Fort Worth 2019, pet. granted) (op. on reh'g). After a hearing, the trial court denied the motion and proceeded to trial. Griswold was convicted of stalking as charged in the indictment and sentenced to ten years in prison. He filed a motion for new trial, which the trial court denied. This appeal followed.

DISCUSSION

In his third issue, Griswold challenges the constitutionality of the stalking statute. In particular, he contends the harassment statute, which is...