## IN THE COURT OF CRIMINAL A PPE ALS OF TEXAS

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E x p a r t e K E L C E Y K E N T R E E C E , A p p e l l a n t

D I S S E N T T O R E F U S A L O F A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E E L E V E N T H C O U R T O F A P P E A L S

M I D L A N D C O U N T Y

K E L L E R , P . J . , f

i l e d a d i s s e n t i n g o p i n i o n i n w h i c h A L C A L A , J . , j o i n e d . Appellant challeng es the fac ial constit u t i o n al i t y of the part of the hara ssment statute that perta ins to e lectronic communications. I n reje cting his First Amendment challeng e to that provision, the cour t of appe als relied upon our prior dec ision in Scott v. State

. Scott held that the par t of the 1
hara ssment statute perta ining to telephone calls did “not implicate the fre e-spe ech g uara ntee of the First Amendment.” The court of appea ls in this case likewise held that the provision befor e it does 2

See Ex parte Ree ce , No. 11-16-00196- CR, 2016 T ex. App. L EXI S 12649 (Tex. 1 App.—Eastland November 30, 2016) (not desig nated for publication) (discussing Scott v. State , 322 S.W .3d 662 (Tex. Crim. App. 2010)). 322 S.W .3d at 669. 2REECE DISS ENT — 2

“not implicate protec ted speec h under the First Amendment.” I would g rant revie w for two rea sons. 3 First, the e lectronic communications provision is much broade r than the provision at issue
in Scott. The provision at issue in Scott was “ direc ted only at persons who, with the specific intent
to inflict emotional distress, repe at ed ly use the telephone to invade another person’ s persona l privac y .” By contra st, the elec tronic communications provision s we ep s wi thin its rea ch any

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elec tronic communication, reg ardle ss of whether that communica t i o n i s direc ted at a particula r
person or infring es on the pe rson’s priva cy : A person commits an offe nse if, with intent to hara ss, annoy , alar m, abuse, torment, or embar rass another , the person . . . sends repe ated elec tronic communications in a manner rea sonably likely to hara ss, annoy , alar m, abuse, torment, em b ar ra ss, or offe nd another

. . . . “Elec tronic communication” means a transfe r of signs, signa ls, writing , imag es, sounds , data, or intelligenc e of any nature transmitted in whole or in pa rt by a wire , radio, elec tromag netic, photoelectr onic, or photo-optical sy stem. 5
The elec tronic communications provision lists two ty pes of communicatio n s that are included within the rea ch of the statute. As in Scott , they are direc ted at a particula r person and arg uably infring e on that person’ s privacy : The ter m [ “ele ctronic c ommunications”] includes : (A) a communication initiated by elec tronic mail, instant messag e, networ k call, or fac simil e mac hine; and (B ) a c ommunication made to a pa g er. 6
But the word “includes” is a term “of enlar g ement and not of limit ation or exclusive enumer ation”

Ree ce , 2016 Tex. App. L EXI S 12649, at *6. 3 322 S.W .3d at 669 4
T E X
. P E N A L C O D E § 42.07(a) ((7) , (b)( 1). 5 Id. § 42.07(b)( 1) (e mphasis added)

. 6REECE DISS ENT — 3

and its use “doe s not crea te a pr esumption that components not expressed are excluded.” 7 Consequently , the elec troni c co m m unications provision swee ps more broadly than the

enumer ated examples and rea ches an y elec tronic communication that otherwise meets the require ment of being annoy ing, hara ssing, etc. The brea dth of this statute can be ac cu ra t ely char acte rized as “bre athtaking ,” and, as such, is appropr iate for revie w. I t may be possible to save 8
the s t at u t e throug h a narr owing construction or throug h sever ance so that only the enumer ated 9 1 0 examples are cover ed, or communications simil ar to those enumer ated examples, but it is not clea r
at t his juncture that the statute can be s aved in such a fashion and that is a matter that would need to be taken up on r eview. The second rea son to g rant revie w is to re- examine Scott

. I n Scott , the Court define d the term “re peate d telephone communications” to mean “mo re than one telephone call in close enoug h proxi mity to pr operly be termed a single episode.” The Court a lso stated that, “in the usual case , 1 1
persons whose conduct violates [t he telephone provision] will not have an intent to eng ag e in the leg itimate communication of ideas, opinions, or information; they will have only the intent to inflict emotional distres s fo r its own sake.” I n my dissent in Scott , I criticized both of these supposed 1 2

Ex parte Pe rry , 483 S.W .3d 884, 909 (Tex. Crim. App. 2016). 7 See E x parte Thompson , 442 S.W .3d 325, 350 (Tex. Crim. App. 2014). 8 See Perry , 483 S.W .3d at 903 (“A Texas court has a duty t o employ , if possible, a 9 rea sonable na

rrowing construction in orde r to avoid a c onstitut ional violation.”). Id. (“Eve n if a narr owing construction is not fea sible, a state court m ay cu re an 1 0 overbr eadth pr oblem by

sever ing a

portion of the statute.” ). 322 S.W .3d at 669 n.12. 1 1 Id. at 670. 1 2REECE DISS ENT — 4

restric tions on the scope of the telephone hara ssment provision. I point ed o u t that the Court’s definition of “r epeated” wa s not supported by any source and wa s inconsistent with what the term is commonly understood to mean. And I arg ued that the l ang uag e of the hara ssment statute was 1 3

not susceptible to bei n g co nstrued to rea ch only case s in which the actor solely intended to inflict emotional harm and had no leg iti m at e i n tere st in communication. I n W ilson v. Stat e , a majority 1 4 of the Court ag ree d with me, and the Court disavowe d this narrowing lang uag e in Scott

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Four judge s on this Court indicated that W ilson ’s retra ction of the narr owing langu age in
Scott made the Scott decision ripe for re- examination. As with the telephone hara ssment provision 1 6
in Scott , the elec tronic communicat i o n s h ara ssment provision in the prese nt case proscr ibes “repea ted” communications and proscr ibes such communications even if they have a leg itim at e

co m municative purpose. But the broade r scope of the elec tronic communications provision

exacer bates the conce rns articulated by these four judge s. This provision is not limit ed to emails,

Id. at 673 (Ke ller, P.J ., dissenting)

. 1 3 Id. at 676-77. 1 4
W ilson v. State , 448 S.W .3d 418, 420, 422-23 (Tex. Crim. App. 2014) (“We hold that (1) 1 5 the phrase ‘re peate d telephone communications’ does not re q u i re the communications to occur within a cer

tain time fra

me in rela tion to one another , and (2) a fac ially leg itimate rea son for the communication does not neg ate pe r se a n element of

the statute.”)

. See also id. at 422-23, 425. Id. at 426 (Ke ller, P.J

. concur ring , joined by J ohnson, J .) (“I do not share the Co u rt ’s 1 6 optimis m that it will be ‘excee dingly rar e’” that the State will be able to show two communications with the requisite intent. “At the tim e S co t t wa s d ec ided, I said that ‘the mi schief this statute can cre ate is enormous,’ and the prese nt case has only reinfor ced that conclusion.”) (bra ckets omitted); Id. at 427 (Cochra

n, J ., concur

ring, j o i n ed b y J ohnson and Alcala , J J .) (“[U]nder the majority ’s interpre tation, any two annoy ing calls made by a single person to another over any undefine d period o f t i m e s u ffice s to cre ate criminal liability

. . . . I do not think that such a position can withstand constitutional scrutiny .”); Id. at 430-31 (Alca la, J ., dissenting on motion for rehe aring ) (desc ribing this Court’s holding in W ilson as “an about-fa ce from our rec ent prec edent in Scott ” and an act that “re interpre ts[ s] t he telephone hara ssment statute”).REECE DISS ENT — 5

instant messag es, or pag er calls. I t also applies, for ex am p l e, to fac ebook posts, messag e-boa rd posts, blog posts, blog comments, and newspa per article comments. I f a person makes two posts or
comments on the internet with the intent to annoy or alar m another , and those two communications

are rea sonably likely to a

nnoy , alar m, or offe nd the same person, then a person can be subjected to criminal punishment under this provision. Criticism can be annoy

ing, embar

rassing , or alar

ming, and it is often intentionally so. Under this statute, a person can criticize another on the internet once, but not twice. That is true even if the criticism is of t he person’s pol itical views. A bl og owner o r au t h o ri zed modera tor who wis hes a

more g entee l approa ch to debate may have the authority to block or eliminate posts to enfor ce a more ref ined atmosphere at the owner ’s website, but the First Amendment prohibits the g overnme nt from using the coer cion of the c riminal law to enfor ce a more re fined a tmosphere on the inter net.
I respe ctfully

dissent. Filed: Apr il 12, 2017 Publis h