Scott v. The State Of Tex.

• Decision Date: 06 October 2010
• Docket Number: PD-1070-09.,No. PD-1069-09,PD-1069-09
• Citation: 322 S.W.3d 662
• Parties: Samuel SCOTT, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

322 S.W.3d 662

Samuel SCOTT, Appellant,

v.The STATE of Texas.

Nos. PD-1069-09, PD-1070-09.

Court of Criminal Appeals of Texas.

Oct. 6, 2010.

COPYRIGHT MATERIAL OMITTED.

Donald H. Flanary, III, San Antonio, for Appellant.

Kevin Patrick Yeary, Asst. Crim. D.A., San Antonio, Jeffrey L. Van Horn, State's Attorney, Austin, for State.

HOLCOMB, J., delivered the opinion of the Court, in which PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined.

The court of appeals held that two subsections of our harassment statute, Texas Penal Code § 42.07, were unconstitutionally vague on their face. We reverse.

On April 24, 2006, in Bexar County, Samuel Scott was charged by information with one count of harassment, a misdemeanor offense. The information alleged, in relevant part, that:

“on 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.”

On July 11, 2006, again in Bexar County, Scott was again charged by information with harassment. The information alleged, in relevant part, that:

“on 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.”

Sometime thereafter (the record does not reveal the exact date), Scott filed a motion to quash the two charging instruments. In his motion, Scott, citing both the First and Fourteenth Amendments to the United States Constitution, argued that Texas Penal Code § 42.07, the statute under which he was charged, was unconstitutional on its face ¹ because it was both unduly vague and overbroad. ² He argued further that the statute's vagueness and overbreadth threatened “to induce individuals to forgo [their] First Amendment rights [to free speech] for fear of violating an unclear law.” Scott, citing our decision in Long v. State, 931 S.W.2d 285, 288 (Tex.Crim.App.1996), noted that “when [as here] 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.” Notably, Scott did not argue that § 42.07 was vague as applied to his conduct, i.e., that the statute failed to give him a reasonable opportunity to know that the conduct for which he was charged was prohibited. ³ On June 25, 2008, the trial court held a hearing on Scott's motion to quash. Neither Scott nor the State presented any evidence at that hearing. Just after the start of the hearing, Scott explained to the trial court that he believed that the April 24, 2006 information had been brought under Texas Penal Code § 42.07(a)(4), whereas he believed that the July 11, 2006 information had been brought under § 42.07(a)(7). ⁴ Toward the end of the hearing, Scott, when queried on the matter by the trial court, appeared to concede that both charging instruments had been brought under § 42.07(a)(4).

As for the substance of his motion to quash, Scott reiterated the arguments that he had made in his written motion. In addition, he argued that: (1) § 42.07(a)(4) and (a)(7) were both unconstitutionally vague and overbroad on their face because the terms “annoy” and “alarm” included in those statutory subsections were “inherently vague”; (2) neither statutory subsection clearly indicated “whose sensibilities must be offended”; (3) neither statutory subsection clearly indicated “the standard by which the [prohibited] conduct [was] to be assessed”; and (4) the specific intent elements included in the statutory subsections did not save them from vagueness.

The State, in response, did not address the merits of Scott's arguments. Instead, the State argued simply that “[t]here is no court that has any jurisdiction over this specific [trial] court that has ruled that specific statute to be unconstitutionally vague.”

At the conclusion of the hearing, the trial court denied Scott's motion to quash. Shortly thereafter, Scott pled nolo contendere, pursuant to a plea bargain, to each harassment charge. The trial court then assessed Scott's punishment in each case at incarceration for two days and a $50 fine.

On direct appeal, Scott reiterated the arguments that he had made in the trial court. In addition, he argued, for the first time, ⁵ that: (1) § 42.07(a)(4) and (a)(7) were both unconstitutionally vague as applied to his conduct (although he failed to explain how they were unconstitutionally vague as applied to his conduct); and (2) § 42.07(a)(4) and (a)(7) were both unconstitutionally vague and overbroad because the terms “abuse,” “torment,” “embarrass,” and “repeated” included in those statutory subsections were “inherently vague.” ⁶

The State, in response to Scott's arguments, argued that: (1) both charging instruments tracked the language of § 42.07(a)(4) and charged Scott under that statutory subsection; (2) § 42.07(a)(4) was neither unconstitutionally vague nor overbroad; (3) § 42.07(a)(4) did not implicate the free-speech guarantee of the First Amendment; and (4) “the fact that [Scott] chose [in the trial court] not to challenge the statute as applied to [his conduct] constitute[d] a failure to preserve [that] issue for appellate review.”

The court of appeals agreed with Scott's arguments, reversed the trial court's judgments, and rendered judgments of acquittal. Scott v. State, 298 S.W.3d 264 (Tex.App.-San Antonio 2009). More specifically, the court of appeals held that: (1) the July 11, 2006 information, which involved allegations of harassing voice-mail messages, could have been brought under § 42.07(a)(7) because voice mail messages fell within the statutory definition of “electronic communication”; (2) § 42.07(a)(4) and (a)(7) both implicated the free speech guarantee of the First Amendment; ⁷ and (3) the terms “annoy,” “alarm,” “abuse,” “torment,” “embarrass,” and “repeated” contained in the two statutory subsections were all unconstitutionally vague. ⁸

We granted the State's petition for discretionary review, which raised six grounds, ⁹ in order to determine whether the court of appeals erred in its analysis. See Tex.R.App. Proc. 66.3(d).

We turn first to the State's fourth ground for review, in which the State argues that the court of appeals erred in addressing the constitutionality of § 42.07(a)(7). The State argues that, contrary to the court of appeals's conclusion, the July 11, 2006 information against Scott charged him under § 42.07(a)(4), not (a)(7).

A careful reading of the July 11, 2006 information, which we quoted earlier, reveals that it tracks the language of § 42.07(a)(4), which we also quoted earlier, but not the language of (a)(7). Furthermore, the text of (a)(4) suggests that it covers ordinary voice (and therefore voice mail) communication involving an ordinary telephone, whereas the text of (a)(7) suggests that it covers various types of non-telephonic, “electronic” communication, e.g., e-mail, instant message, etc. Therefore, we conclude that the July 11, 2006 information against Scott was brought under § 42.07(a)(4) and that the court of appeals erred in addressing the constitutionality of § 42.07(a)(7). We sustain the State's fourth ground for review.

We turn next to the State's second ground for review, in which the State argues that the court of appeals erred in concluding that § 42.07(a)(4) implicated the free-speech guarantee of the First Amendment. The question of whether the statutory subsection implicates the free-speech guarantee is important in the cases before us, because if the statutory subsection does implicate the free-speech guarantee, then Scott, in making his vagueness challenge, is relieved of the usual requirement of showing that the statutory subsection was unduly vague as applied to his conduct. See footnote three, supra.

To answer the question of whether § 42.07(a)(4) implicates the free-speech guarantee of the First Amendment, we must first determine the protection afforded by the free-speech guarantee, and then we must determine the meaning of § 42.07(a)(4). The First Amendment provides, in relevant part, that “Congress shall make no law ... abridging the freedom of speech.” This guarantee of free speech, which was made applicable to the various states by the Due Process Clause of the Fourteenth Amendment, Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), generally protects the free communication and receipt of ideas, opinions, and information, Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 390, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). In a nation of ordered liberty, however, the guarantee of free speech cannot be absolute. The 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. Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). ¹⁰

Turning to the meaning of § 42.07(a)(4), we find that, given the allegations in the charging instruments, the relevant portion of (a)(4) reads as follows: “A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he ... makes repeated telephone...