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Ex parte Barton

Court of Appeals of Texas, Second District, Fort Worth

August 8, 2019

Ex parte Charles Barton

          On Appeal from County Criminal Court No. 8 Tarrant County, Texas Trial Court No. 1314404

          Before Sudderth, C.J., and Kerr, J. [1]

          OPINION

          BONNIE SUDDERTH, CHIEF JUSTICE

         Appellant 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.

         Background

         In February 2013, Barton was charged by information with nine counts of harassment by sending electronic text messages or email communications to his ex-wife.[2] 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).[3] The trial court denied the application, and this appeal followed.

         Discussion

         We 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;[4] 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).

         As the accused, Barton bears the burden to establish the statute's unconstitutionality.[5] 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 him.[6] 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 vague.

         We 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. 47.1.[7]

         I. Section 42.07(a)(7)'s impact on the guarantee of free speech

         The 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 (1971)).

         Because 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).

         Almost 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.[8] 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), [9] rev'd, Scott, 322 S.W.3d at 671.

         The 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 ...


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