Court of Appeals of Texas, Second District, Fort Worth
Appeal from County Criminal Court No. 8 Tarrant County, Texas
Trial Court No. 1314404
Sudderth, C.J., and Kerr, J. 
SUDDERTH, CHIEF JUSTICE
Charles Barton appeals from the trial court's order
denying his application for writ of habeas corpus. In three
points, he argues that the version of penal code section
42.07(a)(7) under which he was charged is unconstitutionally
overbroad and vague and that the charging instrument fails to
give him notice of the offense. See Act of June 15,
2001, 77th Leg., R.S., ch. 1222, 2001 Tex. Gen. Laws 2795
(amended 2013) (current version at Tex. Penal Code Ann.
§ 42.07(a)(7)). Because we agree with Barton that the
2001 version of section 42.07(a)(7) is unconstitutionally
vague and overbroad on its face, we reverse.
February 2013, Barton was charged by information with nine
counts of harassment by sending electronic text messages or
email communications to his ex-wife. He moved to quash the
information on the grounds that penal code section
42.07(a)(7) was unconstitutional and that the information
lacked the requisite specificity. After the trial court
denied the motion to quash, Barton filed an application for
writ of habeas corpus, again challenging the
constitutionality of section 42.07(a)(7). The trial court
denied the application, and this appeal followed.
review a constitutional challenge de novo as a question of
law, and we presume that the statute is valid and that the
legislature has not acted unreasonably or arbitrarily.
Goyzueta v. State, 266 S.W.3d 126, 130 (Tex.
App.-Fort Worth 2008, no pet.). At the time that Barton was
charged, the statute, entitled "Harassment,"
provided in relevant part,
(a) A person commits an 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.
. . . .
(b) In this section:
(1) "Electronic communication" means a transfer of
signs, signals, writing, images, sounds, data, or
intelligence of any nature transmitted in whole or in part by
a wire, radio, electromagnetic, photoelectronic, or
photo-optical system. The term includes:
(A) a communication initiated by electronic mail, instant
message, network call, or facsimile machine; and
(B) a communication made to a pager.
Act of June 15, 2001, 77th Leg., R.S., ch. 1222, 2001 Tex.
Gen. Laws 2795 (amended 2013).
accused, Barton bears the burden to establish the
statute's unconstitutionality. Goyzueta, 266
S.W.3d at 130. In his first and second points, Barton argues
that penal code section 42.07(a)(7) is unconstitutionally
vague and overbroad, both facially and as applied to
First, Barton contends that the statute is vague because the
terms "annoy" and "alarm" are reasonably
susceptible to different meanings to different people and
because the section "lacks a clear standard of conduct .
. . and is dependent on each complainant's
sensitivity." Second, Barton contends that section
42.07(a)(7) is overbroad because it "chills First
Amendment protected speech" and "prevents a spouse
from expressing his true feelings, emotions or needs to his
spouse for fear that his speech may be deemed
'annoying' and therefore criminal." The State
responds that section 42.07(a)(7) is neither overbroad nor
agree with Barton that section 42.07(a)(7) is facially
unconstitutional because it is vague and overbroad and
therefore do not reach his third point attacking the
nonspecific nature of the information. Tex.R.App.P.
Section 42.07(a)(7)'s impact on the guarantee of free
First Amendment protects the freedom of speech and applies to
the states by virtue of the Fourteenth Amendment. U.S. Const.
amend. I ("Congress shall make no law . . . abridging
the freedom of speech."); W.Va. Bd. of Educ. v.
Barnette, 319 U.S. 624, 638-39, 63 S.Ct. 1178, 1185-86
(1943). The protection of free speech includes the "free
communication and receipt of ideas, opinions, and
information." Scott v. State, 322 S.W.3d 662,
668 (Tex. Crim. App. 2010) (citing Red Lion Broad. Co. v.
F.C.C., 395 U.S. 367, 390, 89 S.Ct. 1794, 1806 (1969);
and Chaplinsky v. New Hampshire, 315 U.S. 568,
571-72, 62 S.Ct. 766, 769-70 (1942)). But the guarantee of
free speech is not absolute and the State "may lawfully
proscribe communicative conduct that invades the substantial
privacy interests of another in an essentially intolerable
manner." Id. (citing Cohen v.
California, 403 U.S. 15, 21, 91 S.Ct. 1780, 1786
this is a First Amendment challenge, we must first determine
whether it "reaches a substantial amount of
constitutionally protected conduct" before considering
whether section 42.07(a)(7) is facially overbroad or vague.
Vill. of Hoffman Estates, v. Flipside Hoffman Estates,
Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191 (1982).
a decade ago, the court of criminal appeals addressed the
issue of whether the language of section 42.07 affects
protected speech in the context of its prohibition of
harassing telephone calls. Scott, 322 S.W.3d at 666. In
that case, Scott moved to quash an indictment that charged
him with violating the telephone-harassment subsection by
calling the complainant "repeatedly by telephone while
intoxicated, late at night, leaving abusive and harassing
voice mail messages." Id. at 665. His motion
was denied and he was convicted, but the court of appeals
agreed with his argument that the telephone-harassment
subsection was facially unconstitutional in violation of the
First Amendment because it was unduly vague. Scott v.
State, 298 S.W.3d 264, 270-73 (Tex. App.-San Antonio
2009),  rev'd, Scott, 322
S.W.3d at 671.
court of criminal appeals reversed and held that telephone
communications that violated the harassment statute were
"essentially noncommunicative" because "in 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." Scott, 322 S.W.3d at 669-70. In
other words, the court of criminal appeals concluded that the
telephone-harassment subsection was only susceptible of
application to communicative conduct "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 ...