Opinion filed November 30 , 2016



### In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 1 6

- 00 196

- C R

__________


### 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
, abus e, torment, and embarrass her. See T EX

. P ENAL C ODE A NN

. § 42.07(a)(7) (Wes t Supp. 2016 ). Appellant filed a n application
for a pretrial writ of habeas corpus challeng ing the constitutionality of
S ection 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 that2

(1) the statute is unconstitutionally vague and (2) the s tatute is overbroad an d suppresses protected speech. We affirm. Background Facts Appellant is charged by information and complaint under S ection 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 communication s in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, o r offend another.

P ENAL § 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
S ection 42.07(a)(7) is unconstitutional on its face

. Specifically, Appellant assert s that S ection 42.07(a)(7) is vague and overbroad and violates the Free Speech Clause
of t he First Amendment to the United States Constitution because it prohibits conduct or expressive activity that is expressly per mitted 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) (quo ting Scott v. State , 322 S.W.3d3

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 ove rbreadth and vagueness challenges to S ection 42.07(a)(7)

. 474 S.W.3d
at 405

– 06. In reliance upon Scott , the court in Lebo concluded that
S ection 42.07(a)(7) is neither overbroad or unduly vague in violation of the free

speech 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 S ection 42.07 implicates the First Amendment’ s free

speech guarantee in the context of an overbreadth and vagueness challenge. The relevant portion of S ection 42.07 at issue in Sco tt 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 re p e ated telephone communications

. . . in a manner reasonably likely to harass, annoy, alarm, abuse, tormen t, embarrass, or offend another.

P ENAL § 42.07(a)(4) ; see Scott , 322 S.W.3d at 669

. The court in Scott held that this portion of th e statute did not implicate the free

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

- speech guarantee of
the First A mendment 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 substantial4

privacy in terests of another in an essentially intolerable manner. ” Id

. at 668

– 69 (ci ting Cohen v. California , 403 U.S. 15, 21 (1 971)). 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 susceptibl e 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 in tolerable manner

. Id

. at 670.
In Lebo , the defendant’s overbreadth and vagueness challenge hinge d on whether S ection 42.07(a)(7) proscribed communications that fe ll within the scope of protected free speech. 474 S.W.3d at 406. T he San Antonio Court of Appeals found
Scott ’s free

- speech analysis of S ection 42.07(a)(4) “equally applicable” to

S ection 42 .07(a)(7). Id

. at 407. The court based this conclusion on the similarity of the language in sub section (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 repeate d 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

.

1 Subsection (a)(7) prohi bits sending “repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.” P ENAL § 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 669.5

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 g reater 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 do es not have a First Amendment right to engage in telephone communications with the int ent 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 Sa n Antonio Court of Appeals held that this analysis extended to electronic commun ications 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 priv acy 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 s peech under the First Amendment.
As was the case in Lebo , Appellant’s overbreadth and vagueness challenges hinge on whether S ection 42.07(a)(7) proscribes communications that fall within the scope of protected free speech. Specifically, A ppellant contends in his first issue
that S ection 42.07(a)(7) is unconstitutionally vague. 2 Ordinarily, a criminal

2 Appellant contends that the words “harass, annoy, alarm, abuse, torment, embarrass, or offend” are vag ue. He further argues that it is impossible to tell from the statute what conduct is “reasonably lik ely” to offend another person.6

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, 77 4 (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 ch allenge to S ection 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, Appell ant contends that S ection 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 spe ech 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 S ection 42.07(a)(7) does not regulate communications that fall

3 We express no opinion with respect to any “as applied” constitutional challenge that Appellant may subsequently make to S ection 42.07(a)(7).

4 Appellant contends that the words “repeated” and “manner,” given their ordinary definitions, render the statute overbroad.7

within the scope of protected free speech under the First A mendment . 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 T EX

. R. A PP

. P. 47.2(b).
Panel consists of: W right , C.J., Willson, J. , and Bailey, J.