Scott v. State

• Decision Date: 24 June 2009
• Docket Number: No. 04-08-00502-CR.,No. 04-08-00501-CR.,04-08-00501-CR.,04-08-00502-CR.
• Citation: 298 S.W.3d 264
• Parties: Samuel SCOTT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

298 S.W.3d 264

Samuel SCOTT, Appellant, v. The STATE of Texas, Appellee.

No. 04-08-00501-CR.

No. 04-08-00502-CR.

Court of Appeals of Texas, San Antonio.

June 24, 2009.

Discretionary Review Granted December 16, 2009.

Donald H. Flanary, III, Goldstein, Goldstein and Hilley, San Antonio, TX, for Appellant.

Helen Petry, Assistant Criminal District Attorney, San Antonio, TX, for Appellee.

Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.

OPINION

Opinion: by KAREN ANGELINI, Justice.

At issue in this appeal is whether subsections (a)(4) and (7) of the harassment statute are unconstitutionally vague. Because we hold that subsections (a)(4) and (7) are unconstitutionally vague on their face, we reverse the trial court's judgments and render judgments of acquittal.

BACKGROUND

In two separate cases, Samuel Scott was charged by information with harassing his former wife. He filed motions to quash, arguing that subsections (a)(4) and (7) of the harassment statute are unconstitutionally vague and overbroad. The trial court denied the motions to quash, and Scott then entered a conditional plea of nolo contendere. In each case, Scott was sentenced to two days in jail and a fifty dollar fine. He appeals, arguing that the trial court should have granted his motions to quash because the harassment statute is unconstitutionally vague and overbroad.

INFORMATION

In Trial Court No. 963428, Scott was charged by information with committing harassment:

[O]n or about the 5th Day of December, 2005, SAMUEL SCOTT, hereinafter referred to as defendant, with intent to harass, annoy, alarm, abuse, torment, and embarrass Yvette Scott, hereinafter referred to as complainant, did MAKE REPEATED COMMUNICATIONS TO THE COMPLAINANT, to wit: telephone calls, IN A MANNER REASONABLY LIKELY TO HARASS, ANNOY, ALARM, ABUSE, TORMENT, EMBARRASS, AND OFFEND THE COMPLAINANT.

In Trial Court No. 972642, Samuel Scott was also charged by information with committing harassment:

[O]n or about the 12th Day of March, 2006, SAMUEL SCOTT, hereinafter referred to as defendant, with intent to harass, annoy, alarm, abuse, torment, and embarrass Yvette Scott, hereinafter referred to as complainant, did MAKE REPEATED TELEPHONE COMMUNICATIONS TO THE COMPLAINANT IN A MANNER REASONABLY LIKELY TO HARASS, ANNOY, ALARM, ABUSE, TORMENT, EMBARRASS, AND OFFEND THE COMPLAINANT; to wit: the defendant called the complainant repeatedly by telephone while intoxicated, late at night, leaving abusive and harassing voice mail messages.

TEXAS HARASSMENT STATUTE

Subsections (a)(4) and (7) of the harassment statute, which is codified in section 42.07 of the Texas Penal Code, provide the following (a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he:

...

(4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another; ... or

(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)(4), (7) (Vernon 2003). An "electronic communication" is defined as the following:

(1) "Electronic communication" 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 by electronic mail, instant message, network call, or facsimile machine; and

(B) a communication made to a pager.

Id. § 42.07(b)(1).

The information in Trial Court No. 963428 alleges that Scott violated section 42.07(a)(4) by making repeated telephone calls to the complainant in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, and offend the complainant. The information in Trial Court No. 972642 alleges that Scott, while intoxicated, repeatedly called the complainant by telephone and left "abusive and harassing voice mail messages" late at night in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, and offend the complainant. Because voice mail messages clearly fall within the definition of "electronic communications," Scott argues that in addition to subsection (a)(4), he was also charged with violating subsection (a)(7). We agree that voice mail messages fall within "electronic communications." Therefore, we will analyze whether subsections (a)(4) and (7) are unconstitutionally vague.

VAGUENESS

Scott argues that subsections (a)(4) and (7) are void for vagueness on their face in violation of the First and Fourteenth Amendments to the United States Constitution.¹ Specifically, Scott argues that subsections (a)(4) and (7)'s phrase "in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another" is unconstitutionally vague because "[i]t is impossible for a citizen to know what, in the disjunctive, is meant by this statute's series of vague terms." According to Scott, "[t]hese terms are susceptible to uncertainties of meaning, and because the statute does not establish clear standards for whose sensibilities are to be offended, it is unconstitutionally vague." Similarly, Scott argues that subsections (a)(4) and (7)'s prohibition of "repeated" communications is unconstitutionally vague "because the statute does not define how many communications are prohibited or the period of time over which such communications are not to occur."

A. Standard of Review

When reviewing the constitutionality of a statute, we presume that the statute is valid and that the legislature acted reasonably in enacting the statute. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim. App.2002). The person challenging the statute must prove its unconstitutionality. Id.

"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). "Vague laws offend several important values." Id. "First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Id. "Vague laws may trap the innocent by not providing fair warning." Id. "Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them." Id. "A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." Id. at 108-09. "Third, but related, where a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms." Id. at 109 (quotations omitted). "Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked." Id. (quotations omitted). Thus, for a statute not to be unconstitutionally vague, it must be sufficiently clear in at least three respects: (1) a person of ordinary intelligence must be given a reasonable opportunity to know what is prohibited; (2) the law must establish determinate guidelines for law enforcement; and (3) if First Amendment freedoms are implicated, the law must be sufficiently definite to avoid chilling protected expression. Id. at 108-09; Long v. State, 931 S.W.2d 285, 287 (Tex. Crim.App.1996).

B. Are First Amendment freedoms implicated?

We first note that if First Amendment freedoms are not implicated, Scott must show that subsections (a)(4) and (7) are unconstitutional as applied to his conduct. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (explaining that to challenge the vagueness of a law that does not reach constitutionally protected conduct, a person must first show the law is unconstitutionally vague as applied to him because a person "who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others"); Bynum v. State, 767 S.W.2d 769, 773-74 (Tex. Crim.App.1989) (explaining that when First Amendment rights are not implicated, a court must first consider whether the statute is impermissibly vague as applied to the challenging party's specific conduct). However, if First Amendment freedoms are implicated, then Scott may bring only a facial challenge to the statute. That is, "[t]he vagueness doctrine requires different levels of clarity depending on the nature of the law in question." Comm'n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437 (Tex.1998). "Courts demand less precision of statutes that impose only civil penalties than of criminal statutes because their consequences are less severe." Id. (citing Village of Hoffman Estates, 455 U.S. at 498-99, 102 S.Ct. 1186). "However when the statute's language is capable of reaching protected speech or otherwise threatens to inhibit the exercise of constitutional rights, a stricter vagueness standard applies than when the statute regulates unprotected conduct." Id. at 438 (citing Village of Hoffman Estates, 455 U.S. at 497, 102 S.Ct. 1186). Thus, "[w]hen speech is at stake," allowing a defendant to raise a facial vagueness challenge without showing the statute is vague as applied to his conduct, is "justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights." Id. (quoting Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972)). Thus, we must decide whether subs...