Lebo v. State, 04–14–00383–CR

• Citation: 474 S.W.3d 402
• Decision Date: 26 August 2015
• Docket Number: No. 04–14–00383–CR,04–14–00383–CR
• Parties: Sean Lebo, Appellant v. The State Of Texas, Appellee
• Court: Court of Appeals of Texas

474 S.W.3d 402

Sean Lebo, Appellant

v.The State Of Texas, Appellee

No. 04–14–00383–CR

Court of Appeals of Texas, San Antonio.

Delivered and Filed: August 26, 2015

Discretionary Review Refused February 3, 2016

Patrick Barry Montgomery, Attorney At Law, San Antonio, TX, for Appellant.

Andrew Warthen, Paul Elizondo Tower, San Antonio, TX, for Appellee.

Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C. Martinez, Justice, Luz Elena D. Chapa, Justice

OPINION

Opinion by Rebeca C. Martinez, Justice

Sean Lebo appeals his conviction for harassment through electronic communications, a Class B Misdemeanor. Tex. Penal Code Ann. § 42.07(a)(7) (West Supp.2014). Lebo asserts on appeal that the statute proscribing harassment by electronic communications is unconstitutional on its face, and therefore his conviction is void and must be reversed. We disagree, and affirm the trial court's judgment.

BACKGROUND

In 2010, Bexar County Sheriff's Detective Jason Layman investigated a criminal case involving Lebo. On December 21, 2012, Lebo contacted Layman by email and accused him of destroying evidence and being a felon, corrupt, and incompetent. Lebo threatened to seek Layman's arrest. Two days later, Lebo emailed Layman twice, again accusing him of being corrupt, threatening to sue Layman and have him arrested, and stating, "Do you know what they do to Police Officers in prison?" On December 25, 2012, Lebo sent five emails to Layman calling him names, threatening him with civil and criminal proceedings, and threatening his family. Layman responded to Lebo by email on December 26, 2012, requesting that Lebo stop sending emails for non-official business and referring him to the appropriate contact to make a complaint about his professional conduct. Lebo continued sending Layman threatening and combative emails during 2013, along with letters through the regular mail. Layman received a total of almost 40 emails from Lebo.

On April 16, 2013, Lebo was charged with harassing Detective Layman through repeated electronic communications. See Tex. Penal Code Ann. § 42.07(a)(7). The information alleged that, on or about January 3, 2013, Lebo, "with intent to harass, annoy, alarm, abuse, torment, and embarrass another, namely, Jason Layman, ... did send repeated electronic communications to Jason Layman in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, and offend another, to-wit: by sending multiple electronic mail messages." Lebo pled not guilty and was tried by a jury, which found him guilty. The trial court imposed a sentence of six months' confinement in jail, plus a $1,000 fine. Lebo appealed.

DISCUSSION

Lebo raises two related issues on appeal: (1) the portion of the harassment statute pertaining to electronic communications is unconstitutional on its face; and (2) his original trial counsel was ineffective for failing to raise the constitutional challenge earlier in the trial proceedings. The relevant subsection of the statute provides as follows:

§ 42.07 Harassment

(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) (West Supp.2014). The term "electronic communication" is defined to include "a communication initiated by electronic mail." Id. § 42.07(b)(1) (West Supp. 2014).

CONSTITUTIONALITY OF SECTION 42.07(a)(7)

Preservation of Error

We must first address whether Lebo preserved his facial constitutional challenge. The State argues that Lebo failed to raise his constitutional challenge in the trial court, and has thus waived the issue. See Karenev v. State, 281 S.W.3d 428, 434 (Tex.Crim.App.2009) (holding that a facial challenge to a statute's constitutionality falls within the category of rights that may be forfeited under Marin, and therefore may not be raised for the first time on appeal); see also Marin v. State, 851 S.W.2d 275, 279–80 (Tex.Crim.App.1993) (establishing three categories of rights).² The State acknowledges that Lebo filed a post-verdict motion to set aside the conviction and dismiss the information on the basis that the statute is overbroad and unduly vague, and thus unconstitutional. However, the State contends the motion and argument contained only bald, conclusory statements and presented no substantive analysis, and that defense counsel acknowledged that the motion was filed to preserve the issue for appeal. Lebo concedes that the post-verdict motion was the first time he raised the issue of constitutionality of the statute; the motion was filed on the day of the sentencing hearing by new counsel who was appointed after Lebo was found guilty by the jury. A brief hearing was held on the motion a few days later, and the court denied the motion.

Lebo's argument in his trial court motion and on appeal is identical—that subsection (a)(7) of the harassment statute is unconstitutional on its face, as both overbroad in violation of the right to free speech and unduly vague in violation of the right to due process. We conclude that Lebo preserved his complaint that the statute is facially unconstitutional.³ That issue was presented to the trial court at the sentencing hearing and again in a hearing held a few days later. Thus, Lebo's constitutional claim was presented to the trial court while it still had jurisdiction to set aside the conviction, and the trial court ruled on Lebo's motion. See TEX. R. APP. P. 33.1(a). We will therefore address the merits of Lebo's argument that section 42.07(a)(7) is unconstitutional on its face.

Facially Unconstitutional

The constitutionality of a criminal statute is a question of law which we review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex.Crim.App.2013). In assessing a statute's constitutionality, an appellate court starts with the presumption that the statute is valid and that the legislature did not act arbitrarily or unreasonably in enacting the statute. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002). The party challenging the statute has the burden of establishing its unconstitutionality. Id. We must uphold the statute if we can determine a reasonable construction that renders it constitutional. See Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978).

An argument that a penal statute is unconstitutional on its face is based solely on the text of the statute and the charging instrument, and constitutes a claim that "the statute, by its terms, always operates unconstitutionally." Scott v. State, 322 S.W.3d 662, 665 n. 1 (Tex.Crim.App.2010) ; Gillenwaters v. State, 205 S.W.3d 534, 536 n. 2 (Tex.Crim.App.2006). Lebo argues section 42.07(a)(7) is unconstitutional because it is overbroad in that it invades the area of protected speech, and because it is unduly vague in that it contains undefined terms which deprive a person of adequate notice and give too much discretion in the enforcement of the statute. "A statute may be challenged as overbroad, in violation of the Free Speech Clause of the First Amendment, if, in addition to proscribing activity that may be constitutionally forbidden, it sweeps within its coverage a substantial amount of expressive activity that is protected by the First Amendment." Scott, 322 S.W.3d at 665 n. 2 ; Morehead v. State, 807 S.W.2d 577, 580 (Tex.Crim.App.1991). "A statute may be challenged as unduly vague, in violation of the Due Process Clause of the Fourteenth Amendment, if it does not: (1) give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and (2) establish definite guidelines for law enforcement. Scott, 322 S.W.3d at 665 n. 2 ; Bynum v. State, 767 S.W.2d 769, 773 (Tex.Crim.App.1989). However, an argument that a statute is unduly vague usually requires a showing that the statute is overly vague "as applied" to the particular defendant. Scott, 322 S.W.3d at 665 n. 3 ; Bynum, 767 S.W.2d at 774. As noted, Lebo does not make an as-applied argument. An exception to the requirement of an as-applied challenge exists, however, if the statute implicates the First Amendment's guarantee of free speech, "i.e., if the statute, as authoritatively construed, is susceptible of application to speech guaranteed by the First Amendment." Scott, 322 S.W.3d at 665 n. 3 ; see United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (noting that in such a situation, a defendant may argue that the statute is overbroad on its face because it is unclear whether it proscribes a substantial amount of protected speech); see also Gooding v. Wilson, 405 U.S. 518, 520–21, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (same).

Thus, Lebo's overbreadth and vagueness challenges hinge on whether section 42.07(a)(7) proscribes communications which fall within the scope of protected free speech. As the court did in Scott, we construe the gist of Lebo's argument to be that subsection (a)(7) is "overbroad on its face because its inherent vagueness makes it unclear whether it prohibits a substantial amount of protected speech." See Scott, 322 S.W.3d at 665 n. 3.

In Scott, the court addressed the question of whether the telephone harassment portion of section 42.07 implicates the free-speech guarantee of the First Amendment in the context of an overbreadth/vagueness challenge. Id. at 668–69 (addressing section 42.07(a)(4) ). The court first analyzed the scope of protection granted by the First Amendment's free speech clause, stating that it "generally protects the free communication and receipt of ideas, opinions, and information" but also noting that "[t]he State may lawfully proscribe communicative conduct (i.e., the communication of ideas, opinions, and information) that invades the substantial privacy interests of another in an essentially intolerable manner. " Id. (internal citations omitted) (emphasis added). The court then applied...