Karenev v. State

• Decision Date: 03 April 2008
• Docket Number: No. 2-05-425-CR.,2-05-425-CR.
• Citation: 258 S.W.3d 210
• Parties: Nikolai Ivanov KARENEV, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

258 S.W.3d 210

Nikolai Ivanov KARENEV, Appellant, v. The STATE of Texas, State.

No. 2-05-425-CR.

Court of Appeals of Texas, Fort Worth.

April 3, 2008.

Discretionary Review Granted August 20, 2008.

William E. Trantham, Denton, TX, for Appellant.

John A. Stride, Assistant District Attorney, for Appellee.

PANEL B: DAUPHINOT, GARDNER, and MCCOY, JJ.

OPINION

LEE ANN DAUPHINOT, Justice.

A jury convicted Appellant Nikolai Ivanov Karenev on one count of harassment. The trial court sentenced him to 120 days' confinement in Denton County Jail, probated for eighteen months, and a $500 fine. On appeal, Appellant challenges the constitutionality of section 42.07(a)(7) of the Texas Penal Code, the legal sufficiency of the evidence, and the jury charge. Because we hold that section 42.07(a)(7) is unconstitutionally vague, we reverse the trial court's judgment and render judgment of acquittal.

FACTUAL BACKGROUND

Attorney Elena Karenev filed for divorce from her husband, Appellant, in October 2004, and Appellant moved out of their residence in December 2004. Elena testified at Appellant's trial that Appellant had left telephone messages after he moved out and had sent her e-mail messages in March 2005. In March 2005, Elena reported the emails to the police. Based on their investigation, the police arrested Appellant, and he was charged by information in April 2005. An amended information was filed in the trial court in October 2005. The amended information charged one count of harassment based on the telephone messages and one count of harassment based on Appellant's "electronic communications" to Elena. Count two elaborates the charge—"to wit: sending harassing and/or threatening e-mail to Elena with the intent to harass, annoy, alarm, abuse, torment, or embarrass [her.]"

At trial, the State offered five email messages sent between March 3 and March 29, 2005, all written in Bulgarian. The prosecution relied without objection on translations of the messages provided by Stefanova Helstrom, a woman who was not a certified translator and who was an acquaintance of Elena. Helstrom testified without objection that the telephone calls and the emails were harassment. Appellant countered Helstrom's translations with the testimony of Tatiana Vassileva Gilbard, a Bulgarian translator. Gilbard disagreed with Helstrom's interpretation of some of the language in the emails. The first email is dated March 23, 2005, and Helstrom's translation provides,

Elena,

I pray for you every day and I light up candles in the church.

I hope that it helps you.

Nick

Gilbard did not voice any disagreement with this translation.

The second email is dated March 26, 2005. Helstrom's translation provides,

Elena Petkova,

If you ask me there is no purpose to change your passwords ... Unless you change them every hour it is totally useless.

I thought you might want to know ...

Rest in peace!

Nick Karenev

Elena testified that Petkova was her maiden name and that she used it as well as Karenev and Kareneva. Appellant testified without contradiction that he had emailed Elena about the passwords because she had called him and asked if she needed to change her password. He told her that she did not, and she asked him to put it in writing, so he sent the email. He testified that until March 15, they communicated regularly by email. He also testified that Elena asked him questions about the computer system at her office because he was the administrator and had set up the system. Elena did not contradict his explanation.

Helstrom translated the final line in the March 26 email as "Rest in peace." She testified that the line was meant as irony. Gilbard testified that the phrase in Bulgarian was "Haide ostani si s zdrave." She explained that in Bulgarian, "zdrave" means "health." Literally translated, the phrase means "remain in good health." Gilbard testified that the phrase did not mean "rest in peace." We note that the Bulgarian toast, "Na zdrave," means "to your health."¹ The Bulgarian word for "peace" is "mir," not "zdrave."² "Zdrave" means "health."³

The remaining three emails appear to be dated March 26, March 28, and March 29, 2005. They are longer and appear to reveal anger. In those emails, as translated, Appellant predicted Elena's future: he would raise their child, Elena's mother would be paralyzed, and Elena would be in either a mental hospital or prison. He called her "not even a regular slut and whore, ... something much scarier," "a pathological li[ar], a dirty whore, a filthy thief, a rotten user, a sick nymphomaniac, a mental case, and a devil's work." He told her, "It is about time to pay for all of your filthy deeds which you have committed during your pathetic life!"

At trial, Appellant explained that while in Bulgaria, he had run into fortunetellers that Elena had relied on and that they had asked him to relay the message regarding her future. He testified that in the email he was doing as they had requested.

The emails concerned the divorce, and, at least on occasion, were responses to emails sent by Elena. In the emails, Appellant urged her to reach an agreement with him about the terms of the divorce to prevent their entire estate going to the attorneys.

CONSTITUTIONALITY OF PENAL CODE SECTION 42.07(a)(7)

In his second point, Appellant contends that section 42.07(a)(7) of the Texas Penal Code is unconstitutionally vague so that a person of ordinary circumstances cannot tell what is prohibited and what is not. This court has previously explained There are two types of challenges to the constitutionality of a statute: the statute is unconstitutional as applied to the defendant, or the statute is unconstitutional on its face. The constitutionality of a statute as applied must be raised in the trial court in order to preserve error. Appellant was not required, however, to raise in the trial court a constitutional challenge that the statute is facially invalid, because a defendant may raise a constitutional challenge to the facial validity of a statute for the first time on appeal.

This rule is limited to challenges to the constitutionality of the statute under which a defendant was actually convicted. The rationale for the Rabb exception to the general rule that failure to object at trial waives any right to complain is because if the statute giving rise to a prosecution is unconstitutional, it is void from its inception, is no law, confers no rights, bestows no power on anyone, and justifies no act performed under it. Requiring the defendant to preserve such a challenge in the court below on pain of waiver could result in a criminal conviction based upon an unconstitutional statute. Because a statute criminalizing the defendant's conduct is necessary to the jurisdiction of the convicting court, the Rabb rule is properly applied when the defendant challenges the constitutionality of the specific statute he is charged with violating.⁴

Appellant cites to no place in the record where he challenged the constitutionality of section 42.07(a)(7) before raising the issue on appeal, and we have found none. We therefore address only the issue of facial constitutionality of the statute.

Because he relies on the standard discussed in Kramer v. Price,⁵ which deals with the interplay of the vagueness doctrine and the First Amendment guarantees, and on Article I, Section 8 of the Texas Constitution,⁶ we construe Appellant's vagueness argument as including a complaint that the statute offends the First Amendment protection of free speech. The State argues that the First Amendment is not implicated in this case because harassment is not protected speech contemplated by the First Amendment. The problem with the State's argument is that it is the challenged statute itself that defines harassment. Unless the harassment statute is sufficiently clear to withstand constitutional scrutiny, no unlawful harassment exists that would be excluded from First Amendment protection.

As the Texas Court of Criminal Appeals has provided, "It is axiomatic that vague laws offend the Federal Constitution by allowing arbitrary and discriminatory enforcement, by failing to provide fair warning, and by inhibiting the exercise of First Amendment freedoms."⁷ Additionally, in Long v. State,⁸ a case in which the Texas Court of Criminal Appeals struck down the stalking statute, the court had this to say:

It is well-established that criminal laws must be sufficiently clear in at least three respects. First, a person of ordinary intelligence must be given a reasonable opportunity to know what is prohibited. Second, the law must establish determinate guidelines for law enforcement. Finally, where First Amendment freedoms are implicated, the law must be sufficiently definite to avoid chilling protected expression. "When a statute is capable of reaching First Amendment freedoms, the doctrine of vagueness `demands a greater degree of specificity than in other contexts.'" Greater specificity is required to preserve adequately the right of free expression because "[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked." Moreover, when a vagueness challenge involves First Amendment considerations, a criminal law may be held facially invalid even though it may not be unconstitutional as applied to the defendant's conduct.⁹

The Fifth Circuit discussed the vagueness doctrine in Kramer, the case in which it struck down the pre-1983 version to the current harassment statute:

Although the [vagueness] doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of the vagueness doctrine "is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement." Where the legislature fails to provide such minimal...