Opinion filed November 30, 2016

In The

Eleventh Court of Appeals 

__________

No. 11-16-00196-CR

__________

EX PARTE KELCEY KENT REECE

On Appeal from the County Court at Law No. 2

Midland County, Texas

Trial Court Cause No. CR 151,104

M E M O R A N D U M O P I N I O N

Kelcey Kent Reece is charged with committing the offense of harassment by 

sending repeated electronic communications to Stephanie Reece in a manner 

reasonably likely to harass, annoy, alarm, abuse, torment, and embarrass her with 

the intent to harass, annoy, alarm, abuse, torment, and embarrass her. See TEX.

PENAL CODE ANN. § 42.07(a)(7) (West Supp. 2016). Appellant filed an application 

for a pretrial writ of habeas corpus challenging the constitutionality of 

Section 42.07(a)(7). The trial court denied Appellant’s application for writ of habeas 

corpus without conducting a hearing. In two issues on appeal, Appellant argues that 
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(1) the statute is unconstitutionally vague and (2) the statute is overbroad and 

suppresses protected speech. We affirm.

Background Facts

Appellant is charged by information and complaint under Section 42.07(a)(7), 

which provides:

 (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.

PENAL § 42.07(a)(7). Appellant filed a pretrial application for writ of habeas corpus 

in which he argued that he was illegally restrained of his liberty because 

Section 42.07(a)(7) is unconstitutional on its face. Specifically, Appellant asserts 

that Section 42.07(a)(7) is vague and overbroad and violates the Free Speech Clause 

of the First Amendment to the United States Constitution because it prohibits 

conduct or expressive activity that is expressly permitted by the First Amendment.

Appellant appeals the trial court’s order denying his application.

Analysis

A defendant may file a pretrial application for writ of habeas corpus in order 

to raise a facial challenge to the constitutionality of the statute under which the 

defendant is charged. Ex parte Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App. 

2014). Whether a statute is facially unconstitutional is a question of law subject to 

de novo review. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). 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.” Lebo v. State, 474 S.W.3d 402, 

405 (Tex. App.—San Antonio 2015, pet. ref’d) (quoting Scott v. State, 322 S.W.3d 
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662, 665 n.1 (Tex. Crim. App. 2010); Gillenwaters v. State, 205 S.W.3d 534, 536 

n.2 (Tex. Crim. App. 2006)). 

We note at the outset that, in Lebo, the San Antonio Court of Appeals recently 

addressed overbreadth and vagueness challenges to Section 42.07(a)(7). 474 S.W.3d 

at 405–06. In reliance upon Scott, the court in Lebo concluded that 

Section 42.07(a)(7) is neither overbroad or unduly vague in violation of the freespeech guarantees of the First Amendment. Id. at 407–08; see also Blanchard v. 

State, No. 03-16-00014-CR, 2016 WL 3144142 (Tex. App.—Austin June 2, 2016, 

pet. ref’d) (mem. op., not designated for publication). For the reasons set forth 

below, we agree with the court’s reasoning in Lebo.

In Scott, the Court of Criminal Appeals considered whether the telephone 

harassment provision of Section 42.07 implicates the First Amendment’s freespeech guarantee in the context of an overbreadth and vagueness challenge. The 

relevant portion of Section 42.07 at issue in Scott provides as follow:

(a) A person commits an offense if, with intent to harass, annoy,

alarm, abuse, torment, or embarrass another, the person:

. . . .

(4) . . . makes repeated telephone communications 

. . . in a manner reasonably likely to harass, annoy, alarm, 

abuse, torment, embarrass, or offend another.

PENAL § 42.07(a)(4); see Scott, 322 S.W.3d at 669. The court in Scott held that this 

portion of the statute did not implicate the free-speech guarantee of the First 

Amendment. 322 S.W.3d at 669. The court noted that the free-speech guarantee of 

the First Amendment generally protects the free communication and receipt of ideas, 

opinions, and information. Id. at 668 (citing Red Lion Broad. Co. v. FCC, 395 U.S. 

367, 390 (1969); Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942)). 

However, “[t]he State may lawfully proscribe communicative conduct (i.e., the 

communication of ideas, opinions, and information) that invades the substantial 
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privacy interests of another in an essentially intolerable manner.” Id. at 668–69 

(citing Cohen v. California, 403 U.S. 15, 21 (1971)). The court concluded:

[I]n the usual case, 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. To the extent that the statutory 

subsection is susceptible of application to communicative conduct, it is 

susceptible of such application only when that communicative conduct 

is not protected by the First Amendment because, under the 

circumstances presented, that communicative conduct invades the 

substantial privacy interests of another (the victim) in an essentially 

intolerable manner.

Id. at 670.

In Lebo, the defendant’s overbreadth and vagueness challenge hinged on 

whether Section 42.07(a)(7) proscribed communications that fell within the scope of 

protected free speech. 474 S.W.3d at 406. The San Antonio Court of Appeals found 

Scott’s free-speech analysis of Section 42.07(a)(4) “equally applicable” to 

Section 42.07(a)(7). Id. at 407. The court based this conclusion on the similarity of 

the language in subsection (a)(4) to the language of subsection (a)(7) and the fact 

that the defendant in Scott was charged with essentially the same manner of 

committing harassment as proscribed by subsection (a)(7).1 Id. at 407–08. The court 

determined that an actor whose repeated electronic communications run afoul of 

subsection (a)(7) (i.e. made with the specific intent to inflict one of the designated 

types of emotional distress) “will have no more of an intent to engage in legitimate 

communication of ideas, opinions, or information than an actor whose telephone 

calls violate subsection (a)(4).” Id.

 

1Subsection (a)(7) prohibits sending “repeated electronic communications in a manner reasonably 

likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.” PENAL § 42.07(a)(7). Scott

addressed the portion of subsection (a)(4) that prohibits making “repeated telephone communications . . .

in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.” Id.

§ 42.07(a)(4); see Scott, 322 S.W.3d at 669.
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Appellant contends that the holding in Lebo was the result of “incorrect 

reasoning.” Appellant asserts that the holding in Scott is inapplicable to subsection 

(a)(7) because harassing telephone calls are much different than harassing electronic 

communications because the recipient of electronic communications has greater 

freedom to ignore them. He also contends that the telephone harassment prohibition 

contains “non-communicative” factors that make the result in Scott distinguishable.

We disagree with Appellant’s interpretation of Scott. The Court of Criminal 

Appeals essentially held in Scott that a person does not have a First Amendment 

right to engage in telephone communications with the intent to harass, annoy, abuse, 

torment, or embarrass another in a manner reasonably likely to harass, annoy, alarm, 

abuse, torment, embarrass, or offend another. In Lebo, the San Antonio Court of 

Appeals held that this analysis extended to electronic communications made under 

the same circumstances. As noted by the court in Lebo: 

As Scott stated with respect to 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;”[sic] 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). We agree with our sister court’s 

determination in Lebo that the electronic communications proscribed by subsection 

(a)(7) do not implicate protected speech under the First Amendment. 

As was the case in Lebo, Appellant’s overbreadth and vagueness challenges 

hinge on whether Section 42.07(a)(7) proscribes communications that fall within the

scope of protected free speech. Specifically, Appellant contends in his first issue

that Section 42.07(a)(7) is unconstitutionally vague.2 Ordinarily, a criminal 

 

2Appellant contends that the words “harass, annoy, alarm, abuse, torment, embarrass, or offend” 

are vague. He further argues that it is impossible to tell from the statute what conduct is “reasonably likely” 

to offend another person.
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defendant who challenges a statute as unduly vague must show that it is vague as 

applied to the conduct for which he was charged. Parker v. Levy, 417 U.S. 733, 756 

(1974); Scott, 322 S.W.3d at 665 n.3; Bynum v. State, 767 S.W.2d 769, 774 (Tex.

Crim. App. 1989). If, however, the challenged statute implicates the free-speech 

guarantee of the First Amendment—that is, if the statute is susceptible of application 

to speech guaranteed by the First Amendment—the defendant may argue that the 

statute is overbroad on its face because its vagueness makes it unclear whether it 

regulates a substantial amount of protected speech. United States v. Williams, 553 

U.S. 285, 304 (2008); Gooding v. Wilson, 405 U.S. 518, 520–21 (1972); Scott, 322 

S.W.3d at 665 n.3. Appellant’s facial challenge to Section 42.07(a)(7) on vagueness 

grounds fails because the statute does not regulate communications that fall within 

the scope of protected free speech under the First Amendment.

3

 We overrule 

Appellant’s first issue.

In his second issue, Appellant contends that Section 42.07(a)(7) is overbroad

because it “suppresses protected speech.”4 A statute is impermissibly overbroad if, 

in addition to proscribing activities that may be constitutionally prohibited, its 

sweeping coverage also proscribes speech or conduct that is protected by the First 

Amendment. Bynum, 767 S.W.2d at 772. A statute will not be invalidated for 

overbreadth merely because some unconstitutional applications are conceivable. 

Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 

466 U.S. 789, 800 (1984). Appellant’s overbreadth claim also fails in light of our 

conclusion that Section 42.07(a)(7) does not regulate communications that fall 

 

3We express no opinion with respect to any “as applied” constitutional challenge that Appellant 

may subsequently make to Section 42.07(a)(7).

4Appellant contends that the words “repeated” and “manner,” given their ordinary definitions,

render the statute overbroad. 
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within the scope of protected free speech under the First Amendment. We overrule 

Appellant’s second issue.

This Court’s Ruling

We affirm the order of the trial court. 

JOHN M. BAILEY 

JUSTICE

November 30, 2016

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.