State v. Grohn

• Decision Date: 18 November 2020
• Docket Number: NO. 09-20-00075-CR,09-20-00075-CR
• Citation: 612 S.W.3d 78
• Parties: The STATE of Texas, Appellant v. Dan M. GROHN, Appellee
• Court: Texas Court of Appeals

612 S.W.3d 78

The STATE of Texas, Appellant

v.Dan M. GROHN, Appellee

NO. 09-20-00075-CR

Court of Appeals of Texas, Beaumont.

Submitted on July 15, 2020

Opinion Delivered November 18, 2020

Brett W. Ligon, District Attorney, Brent Chapell, Assistant District Attorney, Conroe, for Appellant.

William E. Harrison, The Harrison Firm, PLLC, Conroe, for Appellee.

Before McKeithen, C.J., Kreger, and Johnson, JJ.

CHARLES KREGER, Justice

In an accelerated appeal, the State challenges a trial court's ruling holding Texas Penal Code Section 42.07(a)(7) is facially unconstitutional. See Tex. Penal Code Ann. § 42.07(a)(7). For the reasons explained below, we reverse and remand.

I. Background

On April 30, 2019, the State charged Dan M. Grohn by information with the following crime:

[O]n or about beginning February 1, 2019 and continuing ... through on or about March 18, 2019 ... DAN GROHN ... did then and there, with intent to harass, annoy, alarm, abuse, torment and embarrass [J.D.], make repeated electronic communication to [J.D.], in a manner reasonably likely to harass the said [J.D], to wit: emailing and or texting her numerous times with vague and rambling messages despite being asked not to send her such communications[.]¹

In response to the State's charges against him, Grohn filed a Motion to Quash and Exception to Substance of Information, arguing that Texas Penal Code 42.07(a)(7) is facially unconstitutional as vague and overbroad. See id. After a hearing, the trial court granted Grohn's motion, the State timely appealed.

II. Standard of Review

Ordinarily, when reviewing the constitutionality of a statute, we presume that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Ex parte Lo , 424 S.W.3d 10, 14–15 (Tex. Crim. App. 2013) ; Maloney v. State , 294 S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.] 2009) (citing Rodriguez v. State , 93 S.W.3d 60, 69 (Tex. Crim. App. 2002) ). The party challenging the statute normally carries the burden to establish the statute's unconstitutionality. Rodriguez , 93 S.W.3d at 69. We shall uphold the statute if there is a reasonable construction that renders it constitutional. Maloney , 294 S.W.3d at 626 (citing Ely v. State , 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979) ). "Whether a statute is facially constitutional is a question of law that we review de novo. " Ex parte Lo , 424 S.W.3d at 14 (citations omitted).

III. Analysis

The State argues three issues on appeal contending that section 42.07(a)(7) is constitutional. First, the State argues that section 42.07(a)(7) is not overbroad; second, the statute is not vague; and third, if this Court finds section 42.07(a)(7) unconstitutional, any unconstitutional phrase can be "excised" from the information. In response to the State's brief, Grohn argues that Section 42.07(a)(7) is facially unconstitutional and requests that we affirm the trial court's judgment.

Section 42.07(a)(7) contains the following language regarding harassment and repetitive electronic communication:

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

Before a statute will be invalidated on its face as overbroad, the overbreadth must be real and substantial when " ‘judged in relation to the statute's plainly legitimate sweep.’ " Ex parte Lo , 424 S.W.3d at 18 (quoting Virginia v. Hicks , 539 U.S. 113, 118–19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) ). A statute should not be invalidated for overbreadth merely because it is possible to imagine some unconstitutional application. See In re Shaw , 204 S.W.3d 9, 15 (Tex. App.–Texarkana 2006, pet. ref'd). With respect to vagueness, statutes are not necessarily unconstitutionally vague merely because the words or terms employed in the statute are not specifically defined. See Engelking v. State , 750 S.W.2d 213, 215 (Tex. Crim. App. 1988). When a statute does not define the words used therein, we will give the words their plain meaning. See Parker v. Stat e, 985 S.W.2d 460, 464 (Tex. Crim. App. 1999) ; see also Tex. Gov't Code Ann. § 311.011(a) ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage."). A statute will be invalidated if it fails to give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. See State v. Holcombe , 187 S.W.3d 496, 499 (Tex. Crim. App. 2006).

The Court of Criminal Appeals addressed a similar argument in Scott v. State when it analyzed the constitutionality of section 42.07(a)(4) regarding harassment and telephonic communication. See 322 S.W.3d 662, 664 (Tex. Crim. App. 2010) ; see also Tex. Penal Code Ann. § 42.07(a)(4). The Court of Criminal Appeals explained in Scott that to determine if section 42.07(a)(4) implicates constitutionally protected speech we must "determine the protection afforded by the free-speech guarantee, and then we must determine the meaning of § 42.07(a)(4)." Scott , 322 S.W.3d at 668. In analyzing if the statute as written implicated the First Amendment's free-speech guarantee, the Court explained that

[t]he 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, generally protects the free communication and receipt of ideas, opinions, and information[.] 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.

Id. at 668–69 (citations omitted). The Court then broke down section 42.07(a)(4) into parts and analyzed each section. Id. Upon completion of its review, Scott explained that considering the "plain text, we believe that the conduct to which the statutory subsection is susceptible of application will be, in the usual case, essentially noncommunicative, even if the conduct includes spoken words." Id. at 670 (citation omitted). The Court reasoned that the "persons whose conduct violates § 42.07(a)(4) will not have an intent to engage in the legitimate communication of ideas, opinions, or information; they will have only the intent to inflict emotional distress for its own sake." Id. In other words, because the statute required the actor have the specific intent to "annoy, alarm, abuse, torment, or embarrass another, he ... makes repeated telephone communications ... in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another[,]" this was not communication protected by the First Amendment. Id. at 669–670 ; see also Tex. Penal Code Ann. § 42.07(a)(4).

Several of our sister courts have applied Scott's analysis to section 42.07(a)(7) and affirmed the statute's constitutionality. See Ex parte McDonald , 606 S.W.3d 856, 859–862 (Tex. App.—Austin 2020, no pet.) ; Lebo v. State , 474 S.W.3d 402, 408 (Tex. App.—San Antonio 2015, pet. ref'd) ; Tarkington v. State , No. 12-19-00078-CR, 2020 WL 1283899, at *3 (Tex. App.—Tyler Mar. 18, 2020, no pet.) (mem. op., not designated for publication) ; Ex parte Sanders , No. 07-18-00335-CR, 2019 WL 1576076, at *4 (Tex. App.—Amarillo Apr. 8, 2019, pet. granted) (mem. op., not designated for publication) ; Ex parte Hinojos , No. 08-17-00077-CR, 2018 WL 6629678, at *5–6 (Tex. App.—El Paso Dec. 19, 2018, pet. ref'd) ; Ex parte Reece , No. 11-16-00196-CR, 2016 WL 6998930, at *3 (Tex. App.—Eastland Nov. 30, 2016, pet. ref'd) (mem. op., not designated for publication) ; Blanchard v. State , No. 03-16-00014-CR, 2016 WL 3144142, at *3–4 (Tex. App.—Austin June 2, 2016, pet. ref'd) (mem. op., not designated for publication) ; Duran v. State , Nos. 13-11-002505-CR, 13-11-00218-CR, 2012 WL 3612507, at *2–4 (Tex. App.—Corpus Christi—Edinburgh Aug. 23, 2012, pet. ref'd) (mem. op., not designated for publication).

In a published opinion, the San Antonio Court of Appeals held that section 42.07(a)(7) is constitutional. See Lebo , 474 S.W.3d at 408. The Appellant in Lebo was charged with harassment through repeated electronic communications, specifically sending repetitive "threatening and combative" emails to a police detective. Id. at 404. Lebo stated that Scott's analysis was "equally applicable" to section 42.07(a)(7) and any difference in text is "inconsequential to the First Amendment analysis." Id. at 407. The court noted that as with Scott and telephone harassment,

repeated emails made with the specific intent to inflict one of the designated types of emotional distress "for its own sake" invade the substantial privacy interests of the victim in "an essentially intolerable manner;" thus, they are not the type of legitimate communication that is protected by the First Amendment.

Id. at 408 (quoting Scott , 322 S.W.3d at 670 ).

In Reece , the Eastland Court of appeals analyzed Scott in relation to 42.07(a)(7). See 2016 WL 6998930, at *3. That Court determined the Scott analysis of conduct under section 42.07(a)(4) was analogous to section 42.07(a)(7)'s criminalized activity, ultimately concluding that 42.07(a)(7) was constitutional. See id.

Similarly, in McDonald , the Austin Court of Appeals explained that the reasoning and holding in Scott applied to section 42.07(a)(7). See 606 S.W.3d at 860 (citing Blanchard , 2016 WL 3144142, at *3 ).

"[T]he free-speech analysis in Scott is equally applicable to subsection 42.07(a)(7)." Although this Court noted that the language in subsections 42.07(a)(4) and 42.07(a)(7) differs slightly in that subsection 42.07(a)(4) "provides an alternative manner of committing the

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