Long v. State

Decision Date11 September 1996
Docket NumberNo. 803-95,803-95
Citation931 S.W.2d 285
PartiesRaymond Edward LONG, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Connie Kelley, Austin, for appellant.

Giselle Horton, Asst. County Atty., Matthew Paul, State's Atty., Austin, for Appellee.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge.

Appellant was convicted under the "stalking" provision of the 1993 harassment statute. See Texas Penal Code, § 42.07(a)(7) (1993). 1 Relying primarily upon Kramer v. Price, 712 F.2d 174 (5th Cir.1983), rehearing en banc granted, 716 F.2d 284 (5th Cir.1983), grant of relief affirmed, 723 F.2d 1164 (5th Cir.1984), he argued to the Court of Appeals that the stalking provision is unconstitutionally vague on its face and as applied to his conduct. 2 Addressing the merits of appellant's facial challenge, the Court of Appeals held that the statute was not vague and affirmed the conviction. Long v. State, 903 S.W.2d 52 (Tex.App.--Austin 1995). 3 Because we find the statute to be unconstitutionally vague on its face, we will reverse.

A. Prior Vagueness Precedent

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. Grayned v. Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972). Kramer, 712 F.2d at 176. Second, the law must establish determinate guidelines for law enforcement. Grayned, 408 U.S. at 108-109, 92 S.Ct. at 2298-2299. Kramer, 712 F.2d. at 176-177. Finally, where First Amendment freedoms are implicated, the law must be sufficiently definite to avoid chilling protected expression. Grayned, 408 U.S. at 109, 92 S.Ct. at 2299. "When a statute is capable of reaching First Amendment freedoms, the doctrine of vagueness 'demands a greater degree of specificity than in other contexts.' " Kramer, 712 F.2d at 177 (citations omitted). 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." Grayned, 408 U.S. at 109, 92 S.Ct. at 2299 (internal ellipses and quotation marks omitted). 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. Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). Kramer, 712 F.2d at 176 n. 3.

In Kramer, the Fifth Circuit addressed the constitutionality of Texas' pre-1983 harassment statute. The pre-1983 statute provided in part:

(a) A person commits an offense if he intentionally:

(1) communicates by telephone or in writing in vulgar, profane, obscene, or indecent language or in a coarse and offensive manner and by this action intentionally, knowingly, or recklessly annoys or alarms the recipient;

Kramer, 712 F.2d at 176, citing Texas Penal Code § 42.07(a)(1)(pre-1983 version). While the court declined to address the question of overbreadth, it nevertheless indicated that First Amendment considerations were intertwined with the vagueness issue. Kramer, 712 F.2d at 176 n. 3 & 177. Relying upon Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), the Fifth Circuit held that the words "annoy" and "alarm" were inherently vague and that Texas courts had not construed the terms to lessen their vagueness. Kramer, 712 F.2d at 177-178. The Fifth Circuit also criticized the statute for failing to specify whose sensitivities were offended. Id. at 178. The court further explained that a statute's vagueness is not lessened by making the conduct depend upon each complainant's sensitivity. Id. Finally, the court held that the intent requirement did not save the statute because the underlying conduct was still vague. Id. Consequently, the Fifth Circuit held the statute to be facially unconstitutional due to vagueness. Id. We subsequently endorsed Kramer in holding the pre-1983 harassment statute to be unconstitutional. May v. State, 765 S.W.2d 438 (Tex.Crim.App.1989).

B. The Present Statute

The question we confront today is whether the 1993 stalking provision suffers from the same flaws that invalidated the pre-1983 harassment statute in Kramer. The "stalking" portion of the 1993 harassment statute provides:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he: ...

(7)(A) on more than one occasion engages in conduct directed specifically toward the other person, including following that person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass that person;

(B) on at least one of those occasions by acts or words threatens to inflict bodily injury on that person or to commit an offense against that person, a member of that person's family, or that person's property; and

(C) on at least one of those occasions engages in the conduct after the person toward whom the conduct is specifically directed has reported to a law enforcement agency the conduct described by this subdivision.

....

(e) It is an affirmative defense to prosecution under Subsection (a)(7) of this section that the actor was engaged in conduct that consisted of activity in support of constitutionally or statutorily protected rights.

§ 42.07(a)(7) & (e). Appellant concedes that subsection (a)(7)(B) is reasonably specific but complains that (a)(7)(A) is vague and renders the entire statute unconstitutional. The Court of Appeals opinion tends to focus upon the stalking provision as a whole, finding that the combined requirements sufficiently define the offense to provide notice and guidelines for law enforcement.

1. The "Conduct" Requirement

If (a)(7)(A) is viewed in isolation, it appears to suffer the same flaws denounced by Kramer. The words "annoy" and "alarm" remain in the statute although they are now joined by the words "harass," "abuse," "torment," and "embarrass." But, all these terms are joined with a disjunctive "or," and thus do nothing to limit the vagueness originally generated by "annoy" and "alarm." Moreover, the additional terms are themselves susceptible to uncertainties of meaning. The stalking subsection specifies a mental state of "intent" as opposed to mere knowledge or recklessness, but Kramer did not turn upon the degree of mental culpability; the mental state did not solve the vagueness of the underlying conduct. The stalking subsection adds a requirement that the conduct be "specifically directed" toward a particular person. But at the same time, (a)(7)(A) covers any conduct in which a person could possibly engage. This broad conduct provision is even more expansive than that found in the earlier statute, which merely proscribed "communications by telephone or in writing." Any limiting function served by the words "specifically directed" is offset by the expansive coverage of all conduct by the stalking provision.

Appellant concedes that (a)(7)(A) contains a "reasonable person" standard, which was absent from the earlier statute. But we are not bound by such a concession. Whether the stalking provision contains a "reasonable person" standard is a question of law, and we are under no obligation to accept a concession on an issue of law even if all parties agree. See Colorado Republican Federal Campaign Committee v. Federal Election Commission, --- U.S. ----, ----, 116 S.Ct. 2309, 2319, 135 L.Ed.2d 795 (1996). Orloff v. Willoughby, 345 U.S. 83, 87, 73 S.Ct. 534, 537, 97 L.Ed. 842 (1953).

To determine whether the offense contains a reasonable person standard, we must first examine the plain meaning of the statute's words. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). If the words are ambiguous or the plain meaning leads to absurd results, we may then consider extratextual sources to aid our interpretation. Id. The only possible locus for a reasonable person standard would be the words "reasonably likely," contained in (a)(7)(A). While those words suggest a degree of probability, standing alone they do not explain from whose perspective the probability is determined. Moreover, the subsection also contains the words "that person," which appear to specify the perspective as being that of the complainant rather than that of a reasonable person. We do not believe that ordinary persons, viewing the language of (a)(7)(A), would find an implied "reasonable person" perspective. At most, the words "reasonably likely" plainly import a minimal causality requirement. For example, a person who delusionally believes that he can annoy another through the use of "telepathic powers," and actually intends to do so, would not be covered by the statute because such conduct would not be "reasonably likely" to annoy the recipient. Such a minimal causality requirement, however, is a far cry from a reasonable person standard.

One Court of Appeals, in the context of the harassment statute, has held that the "reasonably likely" language "specifies whose sensitivities are relevant." Bader v. State, 773 S.W.2d 769, 770 (Tex.App.--Corpus Christi 1989, pet. for disc. rev. ref'd). According to that court, it is the recipient of the communication whose sensitivities must be offended. Id.

Another legal context in which "reasonably likely" commonly appears is in connection with the right against self-incrimination. "Interrogation" has been defined as any words or actions by the police that "they should have known are reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 302, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980)(emphasis in original). See also Jones v. State, 742 S.W.2d 398, 407 (Tex.Crim.App.1987). The self-incrimination context appears to undercut...

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