## I N THE COURT OF CRIMINAL APPEALS OF TEX AS
NO. PD-1123-19

EX PARTE CHARLES BARTON, Appellant

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS

TARRANT COUNTY W A L K E R 

### , J., delivered the opinion of the Court, in w hich H E R V E Y 

### , R I C H A R D S O N 

### , Y E A R Y 

### , and N E W E L L 

### , JJ., joined. Y E A R Y 

### , J., filed a concurring opinion. KE L L E R 

### , P.J., filed a dissenting opinion, in w h ich KE E L 

### , J., joined. S L A U G H T E R 

### and M C 

### C L U R E 

### , JJ., dissented. O P I N I O N

In this c ase, the court o f appeals held that § 42.07(a)(7) of the Penal Code, the e l ectronic harassment statute, is unconstitutionally vague and o verbroad under the F irst Amendment. The court determin e d t h a t i t was n o t bound to follow our decision in Scott v . State

. 322 S.W .3d 662 ( Tex

. Crim. App. 2010), disavowed on other grounds by W ilson v. S tate , 448 S.W .3d 418, 423 ( Tex

. Crim. App. 2 014). I n Scott , we h eld that § 42.07(a)(4) of the Penal Code, the telephone harassment statute, does not implicate the freedom of speech protections of the F irst Amendment of the United States Constitution because it prohibits non-speech conduct. 322 S.W

. 3d at 6 69–70. Today , we clarify our2

holding in W

ilson and its impact upon our holding in Scott

. F ollowing Scott ’s precedent, we hold that § 42.07(a)(7), the e lectronic harassmen t statute, also fails to implicate the F irst Amendment’s freedom of speech protections because it too prohibits n on-speech conduct. We reverse the judg ment of the court of appeals. I — Background Charles B arton, Appellant, was c harg e d with violating Penal Code § 42.07(a)(7), the electronic harassment statute, which provided: (a) A person c o mmit s a n offense if, with intent to harass, annoy , alarm, abuse, torment, or embarrass another, he: (7) sends repeated electronic communications in a manner reasonably likely to harass, annoy , alarm, abuse, torment, embarrass, or offend another. Act o f May 24, 1973 , 6 3 d L e g. , R

. S

. , ch. 399, § 1, sec. 42.07, 1973 Tex

. Gen. L aws 883, 956–57 (amended 2001) 1 ( c urrent version at T E X
. P E N A L C O D E A nn. § 42.07(a)(7)). 2 Appellant filed a motion to quash the infor m a t i o n a rguing that the statute was unconstitutional and that the information failed to provide adequate notice b ecause it lacked specificity

. The motion w as denied

1 Appellant’s case is g overned by the 2001 vers i on o f the electronic harassment statute. According ly , while we will reference the statute with its current citation, this opinion refers to the 2001 version.

2 “El ec t r onic communication” means a transfer of sig ns, sig n als, writing , imag e s, sounds, data, or intellig e nce of any n a t u r e transmitted in whole or in p ar t b y a wire, radio, electromagn etic, photoelectronic, or photo-optical sy stem. The term includes: (A) a communication initiated by electronic mail, instant messag e , network call, or facsimile machine; and (B ) a communication made to a pag er. T E X
. P E N A L C O D E Ann. § 42.07(b)(1).3

after a hearing

. Appellant then filed a pre-trial application for habeas corpus relief ag a in raising the constitutionality of t h e statute. The trial c ourt d e nied relief, but the court of appeals held § 42.07(a)(7) unconstitutional and reversed. Ex parte B arton , 586 S.W .3d 573, 585 (Tex

. App.—F ort W o rth 2019) (op. on r eh’g ). Acknowledg ing that other appellate courts upheld the constitutionality of § 42.07(a) ( 7 ) b y applying Scott , the court of appeals below nevertheless declined to follow Scott —finding that Scott ’s reasoning was undermined by our later opinion, W ilson

. Id. at 578 n.11, 579–80. The court o f a

ppeals found that § 42.07(a)(7) implicated the F irst Amendment and, following the precedent of its e a r l i er opinion in Karenev v. State , held that § 42.07(a)(7) was unconstitutionally vague and overbroad. Id. at 580–85 (citing Karenev v. Sta t e , 2 5 8 S.W .3d 210, 213, 218 (Tex

. App.—F ort W orth 2008), rev’d o n other grounds , 281 S.W .3d 428, 434 (Tex

. Crim. App. 2009)). W e g ranted the State’s petition for discretionary review which raised two g rounds: 1. The court of appeals decided a facial overbreadth claim that was not p reserved at trial or raised on appeal. 2. I s Tex

. Penal Code § 42. 0 7 ( a ) (7), which prohibits h arassing electronic communications, facially unconstitutional? W e answer the question raised by State’s second ground for review: No. Section 42.07(a)(7) does
not implicate the F irst Amendment, and it satisfies the “rational basis” test. The overbreadth doctrine is inapplicable, and we dismiss the State’s first ground for review as moot.

II — Overbreadth and P reservation of Error The State’s first g r ound for revie w argues that the court of appeals erred in considering overbreadth under the F irst A m en dment because Appellant failed to present a p roper overbreadth argument i n t h e trial court. The State and Appellant dispute whether the bare assertion, in4

Appellant’s motion to q

uash and the hearing on that motion, 3 that the electronic harassment statute is “overly broad” and “chills” protected speech is sufficiently specific to p reserve the overbreadth issue for consideration on appeal. “The F irst Amendment doctrine of substantial overbreadth is a n ex ception to the g eneral rule that a person to whom a statute may be constitutionally a pplied cannot challeng e the statute on the g round that it may be un constitutionally applied to others.” Massachusetts v. Oakes , 491 U.S. 576, 581 (1989). “ I n t h e Fi r st Amendment contex t,

. . . a law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judg ed in relation to the statute’s plainly leg itimate sweep.’” United States v. Stevens , 5 5 9 U.S. 460, 473 ( 2010) (quoting W ash. State Grange

v. W ash. State Republican Party , 552 U .S. 442, 44 9 n . 6 ( 2 0 08)). “[ O] utside the limited F irst Amendment contex t, a c riminal statute may not be attacked as overbroad.” Schall v. Martin , 467 U.S. 253, 2 68 n.1 8 ( 1 9 8 4 ); Un ited States v. S alerno , 481 U.S. 739, 745 (1987) (“[ W ] e have not recogniz ed an ‘overbreadth’ doctrine outside the limited contex t of the F irst Amendment.”). Due to our r esolution of the State’s second g round f o r review—that § 42.07(a)(7) does not implicate the F irst Amendment 4 —overbreadth is inapplicable. See Martin , 4 6 7 U.S. at 268 n.18; Salerno , 481 U.S. at 745. B ecause the doctrine is inapplicable, whether Appellant’s bare references
to overbreadth are sufficient to preserve the issue for appeal is entirely academic and unnecessary for our analy sis. W e therefore dismiss the State’s first g r ound for review as moot.

3 D uring the hearing o n the pre-trial application for writ of habeas corpus, the trial court took judicial notice of the arguments that were made in the e arlier motion to quash the information and the hearing

on that motion.

4 Infra Part VI

.5

III — Vagueness Challenges Are As-Applied Unless the F irst Am endm ent Is Im plicated The State’s second g round f or review c omplains that the co u r t o f appeals erred in holding that § 42.07(a)(7) is unconstitutionally vague and overbroad on its face. Generally , “ in addressing a vagueness challeng e,” courts are to “consider whether the statute is vague as applied to a d efendant’s conduct before consi d e ring w hether the statute may be vague

as applied to the conduct of others.” W agner v. State , 539 S.W .3d 2 9 8, 314 (Tex

. Crim. App. 2018). “A plaintiff who eng ag e s in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of o thers. A cou r t s h ould therefore ex amine the compla i n a n t ’s conduct before analy z ing other hy

p othetical applications of the law.” Id. (internal quotations omitted). This g eneral rule g ives w ay when freedom of speech under the F irst Amendment is involved. “[ W ] hen a vagueness c halleng e involves F irst A mendment consid erations, a criminal law may be held facially invalid ev e n t h o ug h it may n o t be unconstitutional a s applied to the defendant’s conduct.” State v . Doyal , 5 8 9 S.W .3d 136, 144 ( Tex

. Crim. App. 2019) (internal q uotations omitted). A law implicating F irst Amendment freedoms may be found facially vague without “a showing that there are no possible instances o f conduct clearly falling within the statute’s prohibitions.” Id. at 145. Determining that § 42.07(a)(7) implicates the F irst Amendmen t , t h e court of appeals evaluated vag

ueness without first considering whether Appellant showed the statute was vag ue as applied to his own conduct. See Barton , 586 S.W .3d at 580–85.

IV — Scott v. State : Conduct Under § 42.07(a)(4) is Non-Speech Conduct In f i n d i n g § 4 2.07(a)(7) unconstitutionally vague, the court o f appeals disting uished our opinion in Scott

. S

ee id. at 579. Althoug h Scott involved a F irst Amendment challeng e to a different6

subsection of § 42.07—subsection (a)(4), the telephone h arassment statute—it has been relied upon by o ther appellate courts to conclude that subsection (a)(7), the electronic harassment statute, does
not implicate the F irst Amendm ent. See, e .g. , State v . G rohn , 612 S.W .3d 78, 83 ( Tex

. App.—B eaumont 2020, pet. f iled); Ex parte McDonald, 606 S.W .3 d 8 5 6 , 8 59–61 ( Tex

. App.—Austin 2020, pet. filed); Lebo v. State , 474 S.W .3d 4 02, 406–08 (Tex

. App.—San Antonio 2015, pet. ref’d). 5 In Scott , the appellant argued that § 42.07(a)(4), the tel ep h o n e harassment statute, is unconstitutionally “ vague and overbroad” in violation of the F irst Amendment. Scott , 322 S.W .3d at 665. This statute provided: (a) A person c o mmits an offense if, with i n t ent to harass, annoy , alarm, abuse, torment, or embarrass another, he: (4) causes the telephone of another to ring r epeate d l y or makes repeated telephone communications anony mously or in a manner reasonably likely to harass, annoy , alarm, abuse, torment, embarrass, or offend another[ .] T E X
. P E N A L C O D E Ann. § 42.07(a)(4). W e concluded that the 2001 version of § 42.07(a)(4) is not communicative conduct protected by the F irs t Am e n d m e nt b e c a u s e t h e s t a t ut e criminaliz es harassing

5 S ee a lso Ex parte Sanders , No. 0 7-18-00335-CR, 2 0 19 WL 1576076, at *4 ( Tex

. App.—Amarillo Apr. 8 , 2019, pet. g ranted) (mem. op., n ot desig nated for publication); Ex parte Hinojos , No. 08-17-00077-CR, 2018 W L 6629678, at *5 (Tex

. App.—El Paso Dec. 19, 2018, pet. ref’d) (not desig nated for publication); Ex p arte Ogle , N o. 03-18-00207-CR, 2018 W L 3637385, at *7 (Tex

. App.—Austin Aug

. 1, 2018, pet. ref’d) (mem. op., not d esig nated for publication); Ex parte Reece , No. 11-16-00196-CR, 2016 W L 6998930, at *3 (Tex

. App.—Eastland Nov. 3 0, 2016, pet. ref’d) (mem. op., not desig nated for publication); B lanchard v. S tate , No. 03-16-00014-CR, 2016 W L 3144142, at *3 (Tex

. App.—Austin J une 2, 2 0 1 6 , pet. ref’d) (mem. op., n ot desig nated f or publica t ion); Duran v. S

tate , No. 13-11-00205-CR, 2012 W L 3612507, at *2–3 (Tex

. App.—Corpus Christi–Edinburg Aug . 23, 2012, pet. ref’d) (mem. op., not desig nated for publication). W e note that one other court o f appeals ag reed with the appellate court in this case, finding that Scott does not apply b ecause W ilson had undermined Scott ’s underpinning s. State v. Chen , 615 S.W .3d 376, 383 (Tex . App.—Houston [ 14th Dist.] 2020, pet. filed).7

conduct that, althoug h it may include spoken words, is essentially noncommunicative. Sco tt , 322 S.W

. 3d at 669–70. F urthermore, we d etermined that “persons whose conduct violates § 42.07(4)(a) will not h ave an intent to e ng a g e in the leg itimate communication of ideas, opinions, or information; they will h ave only the intent to inflict emotional distress for its o wn sake.” I d. at 670. W e held that because § 42.07(a)(4) does not implicate the F irst Amendment, Scott failed to show it was unconstitutionally

vague on its face. Id. at 669, 670–71. As the court of appeals c o r r e c t l y noted: “B ecause section 42.07(a)(4) did not r each communicative conduct, it did not implicate the free-speech g ua ra n t e e of the F irst Amendment.” Barton , 586 S.W .3d at 578 ( citing Scott , 322 S.W

. 3d a t 6 6 9

– 7 0 ). The harassing conduct is noncommunicative. It is not speech. V — Wilson did not Change Scott ’s Holding Althoug h the court of appeals recogniz ed o ur holding in Scott , i t concluded that Scott ’s reasoninghad been undermined by our opinion in W

ilson

. Id. at 579–80. In W ilson , we revisited § 42.07(a)(4), not on a constitutionality challeng e, but on a challeng e to the sufficiency of the evidence to support W ilson’s conviction. W ilson , 448 S.W .3d at 420. W ilson was charg ed w ith violating § 42.07(a)(4), a nd the evidence showed that she left six voicemail messag es o n her neig h bor’s phone over a period of ten months. Id. at 420. The court of appeals found the evidence insufficient to show that the telephone communications w ere “repeated” because the six calls occurred over a ten-month period, and t h e m e s s a g es that w ere not within a thirty -day period of each other were not in close enoug h prox imity to be c onsidered a sing le episode. W i l s o n v. State , 4 31 S.W .3d 92, 96 (Tex

. App.—Houston [ 1st Dist.] 2013), rev’d, 448 S.W .3d at 426. This analy sis followed from a footnote in Scott , which stated that:8

The term “repeated” is commonly understood to mean “reiterated,” “recurring ,” or “frequent.” . . . Here, we believe that the L eg islature intended the phrase “repeated telephone communications” to mean “more than o ne telephone c all in c lose enoug h prox imity t o p r o p e r l y be termed a sing le episode,” because it is the f requent repetition of harassing telephone c alls that makes them intolerable and justifies their criminal prohibition. 322 S.W .3d at 669 n.12. The court o f appeals identified two messag e s that it thoug ht mig ht be in close enoug h prox imity to be termed a sing le e pisode—on e m a de on August 31 and one made on September 5. W

ilson , 4 31 S.W

. 3d at 96. However, the court o f appeals found that t h e r e w as a leg itimate reason for the September 5 call, 6 neg ating b oth the element of an intent to harass and the element requiring the call to b e made in a manner reasonably likely to h arass or annoy . Id. A ccording
to the court of appeals, without the September 5 call, t h e r e m a i n i n g c alls were too far apart to be considered a “part of a sing le e p isode.” Id. The court of appeals fou n d t h e e lement of “repeated” unproven and rendered a judg ment of acquittal. Id. On discretionary review, w e d etermined that Scott ’s f o otnote twelve was “troublesome,” and

we according ly disavowed it. W ilson , 448 S.W .3d a t 4 2 3

. W e held that “‘repeated’ means, at a minimum, ‘recurrent’ action or action occurring ‘ag ain.’” Id. at 424. “‘[ O] ne telephone call will not suffice’ and a conviction secured by evidence of a sing le communication will not stand.” Id. (quoting Scott , 322 S.W

. 3d at 669). As a result, we found the evidence leg ally sufficient. Id. at 426. B ased on

6 In the court of ap p e a ls’s opinion in W ilson , the September 5 messag e related to her neig hbor’s driveway construction project. In th e m e s s a g e Wi l s o n r e ported that she saw c ement debris in the g utters that needed to be cleaned up. W ilson , 431 S.W

. 3d at 96. In this Court’s opinion o n d iscretionary review, w e described this particular messag e as being made o n J u n e 1 1, and the September 5 messag e instead demanded that her neig hbor n ever talk to o r approach W ilson in public ag ain. W ilson , 448 S.W .3d at 420, 421.9

the content of the six c alls over the ten-month period, c ombined w ith evidence of W ilson’s c o mbative conduct and verbal abuse toward [ her neig hbor] , the jury could have rationally found that W ilson, with the intent to harass, annoy , alarm, abuse, torment, or embarrass [ her neighbor] , made repeated telephone communications . .

. in a manner reasonably likely to harass, a nnoy , alarm, abuse, torment, embarrass, or offend her. Id. Reg arding the court of a ppeals’s d etermination that, because the September 5th call was

m ad e with a facially leg itimate reason it could not be counted among the repeated t e l e p h o n e communi cations, w e disag reed and concluded, “by way of an alternate holding ,” that the court of appeals’s sufficiency analy sis was flawed. Id. at 425. One reason the analy sis was flawed—relevant
to Appellant’s case bef

o r e u s t o d a y

—was that “the ex istence of evidence that may support the conclusion that the call had a facially leg itimate purpose does not leg ally neg ate the prohibited intent or manner of the call.” Id. In Appellant’s case, the c ourt of appeals understood our alternate holding to mean that w e had “acknowledg ed that a potential offender could have more than one intent in delivering harassing conduct.” Barton , 586 S.W .3d at 579. B ecause w e “ d i d a cknowledg e the potential that a ‘facially leg itimate’ reason may ex ist in a harassing phone call[ ,] ” the court of appeals read W ilson to mean “that a p erson who c o mmunicates with the intent to h arass, annoy , alarm, ab u s e, torment, or embarrass can also have an intent to eng ag e in the leg itimate communication o f ideas, o p i n i o ns, information, or g rievances.” Id. As a result, the court of appeals concluded that § 42.07(a)(4), and therefore § 42.07(a)(7), implicated the F irst Amendment. Id. at 580. W ilson should not be read so ex pansively

. W ilson dealt with a challeng e to the sufficiency of the evidence. W e specifically and primarily focused on what is sufficient to show the e lement of10

“repeated.” Our “alternate h olding ,” in turn, focused on the sufficiency of the evidence to show the necessary intent, o r—more accurately —the impact of evidence o f some additional intent beyond the statutory r equirement. O ur “alternate holding ” means that the ex istence of an intent to e ng ag e in the leg itimate communication of ideas does not neg ate the ex istence of the prohibited intent to harass, annoy , alarm, abuse, torment, or embarrass another. W ilson , 448 S.W .3d at 425. This point bears repeating today

. Section 42.07(a)(4) makes i t an offense for a person to make repeated telephone communications, where those communications are made in a manner reasonably likely to harass, annoy , alarm, abuse, torment, embarrass, or offend, so long as the person making said c ommunications has an intent to hara s s , annoy , alarm, abuse, torment, or embarrass another. T E X
. P E N A L C O D E Ann. § 42.07(a)(4). I f the p erson h arbors some ex tra intent in making th o s e communications, he nevertheless still h a s an intent to harass, a nnoy , ala r m , ab u s e , torment, or embarrass another. Unless the separate intent is specifically an intent not to harass, annoy, alarm, abuse, torment, or embarr a s s another , the ex istence of a separate, facially leg itimate intent to communicate does not neg ate the prohibited intent. That is the point of W

ilson ’s alternate holding

. Our “alternate holding ” in W ilson was not that § 42.07(a)(4) could regulate e x pressive conduct—speech implicating the F irst Amendment—if the repeated telephone communications were made with an additional intent to e ng ag e in the leg itimate communication of ideas. More importantly , even accepting that a person w ho violates § 4 2.0 7 ( a ) ( 4 ) may harbor, along side an intent to harass, an a dditional intent to eng ag e in the leg itimate communication of ideas, that fact does not convert non-ex pressive conduct into ex pressive conduct. T he Supreme Court has “rejected the view that ‘condu ct c an b e l abeled ‘ speech’ whenever the person eng ag ing in the11

conduct intends thereby to ex press an idea.’” Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. , 547 U.S. 47, 65–66 (2006) ( quoting United States v. O’Brien , 391 U.S. 3 6 7 , 3 7 6 ( 1968)). Instead, F irst Amendment protection ex tends “only to conduct that is inherently ex p ressive.” Id. at 66. According ly , W

ilson ’ s recognition that a person violating § 4 2.07(a)(4) with an intent to haras s , a n n o y , a larm, a

buse, torment, or embarrass another may also have an additional intent to eng ag e in the leg itimate communication of ideas does nothing to the core holding of Scott

. Section § 4 2.07(a)(4), the telephone harassment statute, is a restriction on conduct that is non-ex pressive and thus not speech. T h is remains true e ven i f t h e o ffense is committed using words, and even if the person does not have the sole intent to harass, annoy , a larm, a buse, torment, or embarrass another. VI — Scott

Applies to § 42.07(a)(7) Several other appellate courts concluded that Scott ’s reasoning applies to § 42.07(a)(7), the electronic harassment statute, the same way it a pplies to § 42.07(a)(4), the t e lephone harassment
statute. See, e.g. , Grohn , 612 S.W .3d at 83; McDonald, 6 06 S.W .3d at 859–61; Lebo , 474 S.W .3d at 407; supra note 4. Those courts found that § 42.07(a)(4) and (a)(7) are the same for F irst Amendment purposes. As the Third Court of Appeals explained in McDonald : “[ t] he free-speech analy sis in Scott is equally applicable to subsection 4 2.07(a)(7).”

. . . Althoug h

. . . the languag e in subsections 42.07(a)(4) and 42.07(a)(7) differs slig htly in that subsection 42.07(a)(4) “provides an alternative manner of committing the offense by

making repeated phone c alls ‘anony mously ,’” . . . the slig h t “tex tual difference is inconsequential to the F irst A mendment analy sis” and

. . . the remaining statutory languag e in the two subsections “is identical.” McDonald, 606 S.W

. 3d at 860 (quoting Blanchard , 2016 W L 3144142, at *3). Indeed,12

all subsections of section 42.07(a) require the sam e s p e ci fic intent, that “to harass, annoy , alarm, abuse, torment, or embarrass another.” And while subsection (a)(4) is violated when the actor “makes” repeated telephone c ommunications a nd (a)( 7 ) i s violate d w hen the actor “ sends” r epeated electronic communications, both subsections requi r e f

or g uilt that the repeated communications occur “ in a manner reasonably likely to harass, anno y , a l arm, abuse, torment, embarrass, or offend another.” Sanders , 2019 W L 1576076, at *3. W e ag ree. F or F irst Ame n dment purposes, Scott ’s holding—that § 42.07(a)(4), the telephone harassment statute, does not implicate the F irst Amendment—applies equally to § 4 2.07(a)(7), the

e l e c t r o nic harassment statute. The c onduct regulated by § 42.07(a)(7) is non-speech conduct t h a t does not implicate the F irst Amendment. VII — Section 42.07(a)(7) is a F acially Constitutional Regulation of Non-Speech Conduct Section 4 2.07(a)(7) does not implicate the F irst Am e n d m e nt ’ s f r e e d o m o f s p e e c h protections. According ly , we use “the familiar ‘rational basis’ test” to determine whether the statute is facially unconstitutional. Minnesota v. Clover Leaf Creamery Co. , 449 U.S. 456, 461 (1981). “ The default, ‘g eneral rule’ or ‘standard’ is that state action is ‘presumed to be valid’ and will be upheld if it is but ‘rationally related to a leg itimate state interest.’” E stes v. State , 546 S.W .3d 691, 697 (Tex

. Crim. App. 2018) ( quoting City of Cleburne, Tex. v. Cleburne Living Ctr. , 473 U

. S

. 4 3 2 , 4 40 (1985)). “This g eneral rule ‘g ives way , however,’ when a state action either ‘classifies by race, alienag e, or national orig in,’ o r ‘ imping e[ s] on personal rig hts protected by the Constitution.’” Id. (quo ting Cleburne Living Center , 473 U.S. at 440); R omer v. E vans , 517 U.S. 620, 631 (1996) (“[ I ] f a law neither burd e n s a f

undamental rig ht nor targ ets a suspect class, we will uphold the leg islative classification so long as it bears a rational relation to some leg itimate end.”). In a pplying the rational basis test:13

Above all, a court should spurn any attempt to turn rational-basis review into a debate over the wisdom, eloquence, or efficacy of the law in question. As i t s name would sug g est, rational-basis review should focus solely on the rationality of the law or state action. S h o u ld w e determine that the State has invoked a leg itimate g overnmental purpose a nd, in enforcing its law, has charted a course that is “rationally related” to it, “our inquiry is at an end.” Estes , 546 S.W .3d at 698 (quoting FCC v. Beach Commc’ns, Inc. , 508 U.S. 307, 313–14 (1993)). I s a leg itimate g overnmental interest served by § 42.07(a)(7)? As discussed above , t h e conduct r egulated by § 42.07(a)(7) is roug hly equivalent to the conduct regulated by § 42.07(a)(4), the telephone harassment statute—at issue in Scott

. In S cott , we noted that t h e p rohibited conduct—making repeated telephone communications in a manner r e asonably likely t o harass, annoy , alarm, abuse, torment, embarrass, or offend—“invades the s ubstantial privacy interests of another in an essentially

intolerable manner.” Scott , 3 22 S.W .3d at 668–69, 670. T h e State has an interest in vindicating the rig hts of the people w hich it serves and an interest in protecting the public welfare. See State v. Rhine , 2 97 S.W .3d 30 1 , 3 0 6 ( T e x . Crim. App. 2009) (“The leg islature may enact laws that enhance the g eneral welfare of the state[ .] ”); W illiams v. State , 176 S.W .2d 177, 182 (Tex

. Crim. App. 1943) (“the lawmaking bodies of e ach State pass laws to protect the peace, health, h ap p i n e s s , and g eneral welfare of society , and of the people as a whole.”). These interest s a r e leg itimate, and § 42.07(a)(7) serves these interests. I s § 4 2.07(a)(7) rationally related to s e r v i n g those interests? Sending r epeated electronic communications in a manner reasonably likely to harass, annoy , alarm, abuse, torment, embarrass,

o r offend would indeed invade the substantial privacy interests o f another in an es s e n t i a l l y intolerable manner. U ndoubtedly , if t h e i d e a i s to protect the people from h aving their privacy invaded in such a way , one o f the best way s to do that is to punish those who v i o l a t e t h a t p r i v a cy14

interest and deter those who would. The means chosen by the L eg islature further the interest. Thus, § 42.07(a)(7) is rationally related to a leg itimate g overnmental interest. As for whether the statute is unconstitutionally vague, because § 42.07(a)(7) does not regulate speech and therefore “does not implicate the free-speech g uarantee of the F irst Amendment,” Appellant, “ in making his vagueness challeng e to that statutory subsection, w as required to show that it w as unduly vague as appli e d t o h i s o w n conduct. He has not done that. Therefore, his vagueness challeng e fails.” See Scott , 3 22 S.W

. 3d at 670–71. W e hold that § 42.07(a)(7), the electronic harassment statute, is not facially unconstitutional. W e sustain the State’s second ground for review. VIII — Conclusion Since § 42.07(a)(7) d o e s n o t r e g ulate speech, and therefore does not implicate the f ree-speech g uarantee of the F irst Amendment, the statute is not susceptible to an overbreadth challeng e. Thus, we need not address whether Appellant preserved his overbreadth issue for appellate review. As a regulation of n on-speech conduct, § 42.07(a)(7) is not facially uncon s t itutional because it is rationally related to a leg itimate g overnmental interest. The question of whether the statute is vague will have to wait for a proper as-applied challenge. W e revers e t h e judg ment of the court o f appeals and remand to that court for proceeding s consistent with this opinion.

Delivered: April 6, 2022 Publish