Reversed and Rendered and Memorandum Majority Opinion filed August 29 ,

2023

. Concurring Opinion to Fol low.

In The 

## Fourteenth Court of Appeals

N O

. 14

- 19

- 00 372

- CR NO. 14

- 19

- 00373

- CR

THE STATE OF TEXAS , Appellant

V.

JASPER ROBIN CHEN , Appellee

On Appeal from the Co unty Criminal Court at L a w No

. 16

Harris County, Texas Trial Court Cause No. 2233753 & 2250796

MEMORANDUM OPINION

In this appeal, which returns to us on remand from the c ourt of c riminal

a ppeals, we re consider a facial challenge to Penal Code s ectio n 42.07(a)(7)

, otherwise kn own as the e lectronic

- harassment statute , in light of recent opinions from the court of criminal appe als

. Tex. Penal Code An n

. § 42.07(a)(7)

. We

conclude that the challenged version of the electronic

- harassment statute is not

fac ial ly unconstitutional

. Accor dingly, we reverse the tria l court ’ s judgment and2

render judgment that a ppellee Jasper Chen ’ s applic ation for pre

- trial habeas

- corpus
relief is denied.

I. B ACKGRO UN D

T he charging instrume nt in this case alleged that :

on or abo ut A pril 15, 2018 continuing through October 29, 20 18, [appellee] di d then and there unlawfully, with intent to harass, annoy, alarm, abuse, torment and embarrass another, namely, [the complainant] , send repeated electronic communications, to

- wi t: electron ic m ail and instant m essage in a manner reasonably likely to harass, annoy, alarm, ab use, torment and embarrass.
Appellee filed an ap plication for writ of habeas corpus and motion to quash

the info rmation, arguing that the statute under which he was charge d, P enal Code section 42.07(a)(7) (the “electronic

- communications

- ha rassment sta tute” ), is facially unconstitutional and unconstituti onal as applied to him under the First

Amendment. U.S. Const. am end. I; see Tex. Code Crim. Proc. Ann. art. 11.09 ( “ If

a person is confined on a charge of misdemeanor, he may apply to the county judge of the county in which the misdemeanor is charged to have been committed,

or if there be no county judge in said county, then to the county judge whose

residence is nearest to the co urthouse of the county in which the applicant is held in custody. ” )

. Specific ally, he argued it was vague and overbroad. The tri al court granted the application, a writ of habeas corpus was issued, and appellee and the State appeared for a heari ng on the a pplication. After the hearing, the trial court

concluded the statute is facia lly unconstitutional and granted habeas

- corpus reli ef

and the motion to quash the inf ormation, thereby discharging the appellee. See

Tex. Code Crim. Proc. Ann. art. 11. 40. Th is ap peal followed. 1

1 In a unitary notice of appeal, the State appealed both “from the trial court ’ s order d is m issing the info rmation in cause number 2233753,” which has been assigned case numbe r 14

- 19

- 00373

- CR by this court, “and from its order granti ng habeas relief in cause number3

Upon original submission, we concluded that the electronic

- h arassment

statute was unconstitutionally overbroad i n violation of th e First Amendmen t. See

State v. Chen , 615 S.W.3d 376, 38 5 (Tex . App.

— Houston [14th Dist.] 2020),

vacated and re manded sub nom. Ex parte Chen , 665 S.W.3d 448 (Tex. Crim. App.
2022)

. But af

ter we issued our judgment s , the c ourt of c riminal a ppeals decided Ex

parte Barton

, 66 2 S.W.3d 876 (Tex. Crim. App. 2022 ) and Ex par te Sanders

, 663

S.W.3d 197 (Tex. Crim. App. 2022 ), and in both of those related cases, the c ourt of

c riminal a

ppeals determi ned that earlier versions of the electronic

- harassme nt

statute were no t facially uncon stitutional in violation of the Fi rst Amendmen t.

I n light of its decisions in Barton and Sande rs , the court of criminal appeals

vacated the judgment in this case and rem anded the case back to us for

reconsideration

.

II. A N ALY SIS

The State asse rts that the trial court erred by granting the mot ion to quash

and granting appellee ’ s requested habeas relief because the electronic

- harassment

statute is con stitutional

. Specifically , the State argues the electronic

- harassment

statute : (1) does not implicate the First Amendment ; (2) sati sfies intermedia te

scrutin y because it serves a legitimate state interest; a n d (3) is not overbroad or

vague. The State additionally claims that the pre sent case is controlled by our

court ’ s recen t decisi on in Ex part e Ordonez , No. 14

- 19

- 01005

- CR, 2023 WL
4711526, at *1 ( Tex. App.

— Houston [14th Dist.] July 25, 2023, no pet. h.) . W e

agree

.

In Ordonez

, this court concluded that the electronic

- h arassment stat ute was unconstitutionally overbroad in violation o f the First A mendment. See Ex parte

2250796,” which has been assigned case number 14

- 19

- 00372

- CR by this court.4

Ordonez , No. 14

- 19

- 01005

- CR, 20 21 WL 245219, at *2 (Tex. App.

— Houston
[14th Dist.] Jan. 26, 2021) (mem. op

. , not designated for publication ), vacated

, No. PD

- 0145

- 21, 2022 WL 16626255 (Tex. Crim. App. Nov. 2, 2022) (pe r curiam). Just as here , t he court of c riminal appeals granted the St ate ’ s petition for discretionary review in Or donez

, vacated t his court ’ s judgment, and remanded the

case to this court fo r further consideration in light of Sa nders and Barton

.

On remand in Ordone z , our court c oncluded that the 201 7 version of the

elec tronic

- harassment statute d oes not imp licate the First Amendment, despite its expanded definition of “ electroni c communication ” :
This expanded definition may have broaden ed the types of electronic

com m unications th at can b e used to complete the offe nse, bu t the gravamen of the offense itself did not change. As with the 2001 version in Barto n and the 2013 version in Sanders , the gravamen is still the repeated sending of ele ctronic communications in a ma n ner reasonabl y likely to harass, annoy, alarm, abuse, t orment, embarrass, or offend another. That “repeated sending of e lectronic communicati ons” is noncommunicative conduct, even when such conduct is accompanied by speech

— ju st as the Sanders court explai n ed with its e xamples involving e

- mails and computer cod e. Accordingly, we conclude that the 2017 version of t he electron ic harassment statute does not implicate the F irst Amendment

. Ex parte Ordonez

, 2023 WL 4711526, at *3 (i nternal quotation omitt ed)

.

B e c ause the Firs t Amend m ent was not implicated, our court then reviewed

Ordone z ’ s constitutional challenge under the ration al

- basis test

. See i d. U nder that

test, the statute is presumed to be valid, and a reviewing court must uphold the

statute if it is rat i onally relat ed to a legitimate state interest

. S ee Bart on , 662

S.W.3d at 884

. Our court noted that the state has a legit imate interest in protecting

the su bstantial privacy interests of individuals from harassment

, and that th e 2001

version of the elect ro n ic

- harassment statute served that int erest. Ex parte Or donez

,5

2023 WL 4711526, at *3

. Accordingly, because “ [t] he same r easoning applies her e

to the 2017 version of the electronic harassment [ statute ,] ” we concluded that the

electronic

- harassment statut e w as pre sumed to be valid. I d.

In Ordonez

, we al so obser ved that because the First Amendment was not implica ted, Or donez could not maintain an overbreadth challenge to the

electronic

- harassment statute. See id. ( quoting Ba rton , 662 S.W.3d at 8 8 5 (“Since § 4 2 .07(a)(7) does not regulate speech, and therefo re does not implicate

the free

- speech guarantee of the First Amendment, the statute is not susceptible to

an overbreadth challenge.”) )

.

As for Ordonez ’ s vagueness chal lenge, because the First Amendment was

no t implicated, we observed that Ordo n e z was requi red to show that the 2017

version of the electronic

- harassment statute w as unduly vague as applied to her

own conduct. See E

x parte Ordonez

, 2023 WL 4711526, at *3 ( ci ting B arton , 662

S.W.3d at 8 8 5 )

. But bec au s e she did not present any argument regarding h er own conduct, we concluded that her vagueness challenge fail ed

. See E x parte Ordonez

, 202 3 WL 4711526, at *3

. Following our precedent in Or donez , we c onclud e that th e
ele ctronic

- harassment statute does not i m pli cate the First Amendment . Likewise,

we pres ume the electronic

- har assment statute is valid bec ause the statute is

ra tionally related to a legitimate state interest

. Because the First Amendment is not implica ted, appe llee cannot maintain an overbreadth c h allenge to the

electronic

- harassment statute

. See Barton , 662 S.W.3d at 88 5 ; E x parte Ordonez

, 2023 WL 4711526, at *3

. Also, appellee ’ s vagueness challenge fails because he does not present any argu ment regarding his o wn conduct

. See Barton , 662 S.W.3d

at 88 5 ; E x parte Ordonez

, 2023 WL 4711526, at *3

.

T hrough supp lemental briefin g, appellee urg es our court

— despite Sanders6

and Barton

—

to r ely on the Supreme Court ’ s recent decision in Counterman v.

Colo rado

, No. 22

- 138 ( U.S. June 27, 2023) to conclude that th e
electronic

- harassment statute is unconstit uti onal

. However, this court has al ready

consider ed and rejected this argum ent in Ordonez

. See E x parte Ordonez

, 2023

WL 4711526 , at * 4 ( “ Counterman did not specifically examine whether the sending of r epeated electr o nic communications in a manner reasonably likely to

h arass, annoy, alarm, abus e, torment, embarrass, or offend ano ther was
noncommunicative, as the Court of Criminal A ppeals held in Barton and

Sanders. ” ).

We therefore sustain t he State ’ s sole issue

.

II I

. C ONCLUSION

The trial court reversibly err ed in granting appellee ’ s applicati o n for pre trial

habeas

- corpus relief and granting the motion to quash in each of these two criminal

cases. Therefore, in each of the appeals, we revers e the trial court ’ s judgme n t and

render judgment that appellee ’ s appl ication for pre trial habeas

- corpu s relief be

denied. We reinstate the inf ormation in trial court cause number 

### 2233753 so that

the trial court may conduct further proceedings on this info rmation

.

/s/ Cha rles A. Spain Jus t ice

P anel consi s ts of J u stices Zimme rer, Spain, and Hassan (Hassan, J., concurring
with concurrence to follow)

. Do Not Publish

— T ex. R. App. P. 47.2(b).