             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                  NO. PD-1069-09 & 1070-09



                                 SAMUEL SCOTT, Appellant

                                                  v.

                                   THE STATE OF TEXAS

              ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FOURTH COURT OF APPEALS
                              BEXAR COUNTY

                K ELLER, P.J., filed a dissenting opinion.

       I believe that parts of the harassment statute implicate First Amendment freedoms and that

those parts violate the Constitution. I therefore respectfully dissent.

                                       A. Prior Texas Cases

       Our decisions in Long v. State1 and May v. State,2 and the Fifth Circuit’s decision in Kramer




       1
           931 S.W.2d 285 (Tex. Crim. App. 1996).
       2
           765 S.W.2d 438 (Tex. Crim. App. 1989).
                                                                            SCOTT DISSENT — 2

v. Price,3 set the backdrop for the claim we now face.4 These decisions invalidated statutes that

contained the terms “annoy” and “alarm” as implicating First Amendment freedoms and being

unduly vague.5 In its opinion today, the Court’s only attempt to distinguish these cases is to say that

they involved different versions of the harassment statute than the one that is currently before us.6

       But the harassment provision at issue in the present case is similar in pertinent ways to the

stalking provision that we invalidated in Long. The part of the harassment statute at issue provides:

       A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment,
       or embarrass another, he . . . makes repeated telephone communications . . . in a
       manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or
       offend another.7

The stalking provision in Long provided in relevant part:

       A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment,
       or embarrass another, he . . . on more than one occasion engages in conduct . . . that
       is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass that




       3
          712 F.2d 174 (5th Cir. 1983), rehearing en banc granted, 716 F.2d 284 (5th Cir. 1983),
grant of relief affirmed, 723 F.2d 1164 (5th Cir. 1984)).
       4
          Long analyzed a similar issue as a vagueness claim with First Amendment implications.
The Supreme Court’s opinion in Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2718-19
(2010) (citing United States v. Williams, 553 U.S. 285, 304 (2008)), indicates that the proper analysis
might be more appropriately characterized as a First Amendment overbreadth claim with a vagueness
component. I analyze the issue in accord with Humanitarian Law Project, but the analysis is
essentially the same.
       5
         See Long, generally; May, 765 S.W.2d at 440 (following and quoting Kramer, 712 S.W.2d
at 178: “By failing to provide reasonably clear guidelines, §42.07 gives officials unbounded
discretion to apply the law selectively and subjects the exercise of the right of speech to an
unascertainable standard.”).
       6
           Court’s op. at 5 n.6.
       7
           T EX . PENAL CODE § 42.07(a)(4).
                                                                            SCOTT DISSENT — 3

       person.8

A comparison of these passages reveals only three features in the current statute that were not in the

former stalking provision: (1) the use of “repeated” instead of “on more than one occasion,” (2) the

additional emotional state of “offend” in the current statute, and (3) the limitation of the current

statute to telephone communications.

                                            B. “Repeated”

       The term “repeated” introduces an ambiguity not present with the “on more than one

occasion” language in the former stalking statute. Is conduct “repeated” if it occurs twice? If the

two occurrences are a year apart? Does it matter whether the circumstances show that the multiple

instances of conduct are connected to the same scheme or course of conduct?9 With respect to the

facial constitutionality of a statute, this ambiguity may be acceptable if First Amendment

considerations are absent. In many cases, it would be clear that a person’s conduct was “repeated,”

so we could adjudicate on a case-by-case basis whether a particular person was afforded adequate

notice under the statute.10 But if First Amendment freedoms are at stake, we cannot allow the

ambiguity in a statute to chill protected expression.11

       The Court contends that we can read “repeated” to mean “more than one call in close enough


       8
            Long, 931 S.W.2d at 288 (quoting the 1994 version of TEX . PENAL CODE §42.07(a)(7)).
       9
            See id. at 291 (no nexus requirement in former stalking statute).
       10
           See Williams, 553 U.S. at 304 (outside the First Amendment context, a person “who
engages in conduct that is clearly proscribed cannot complain of the vagueness of the law as applied
to the conduct of others.”).
       11
          Long, 931 S.W.2d at 287; Gooding v. Wilson, 405 U.S. 518, 521 (1972) (referring to the
need to protect persons “who may well refrain from exercising their rights for fear of criminal
sanctions provided by a statute susceptible of application to protected expression”).
                                                                            SCOTT DISSENT — 4

proximity to properly be termed a single episode.”12 The Court fails to cite a single source, from a

dictionary or otherwise, that limits “repeated” to actions in a single episode. Although a court has

a general duty to employ “reasonable narrowing constructions” to avoid constitutional violations,

it may not “assume the legislative prerogative and rewrite a statute” that is not “readily subject” to

being narrowly construed.13 Would once a day for a month constitute “a single episode?” Under any

common understanding it would not, but it is hard to believe the Legislature did not intend to reach

such conduct. As discussed below, the Legislature has a legitimate interest in proscribing conduct

over the telephone that is intentionally harassing, abusing, and tormenting. In my opinion, that

interest would legitimately extend to multiple instances of conduct that could not reasonably be

considered part of a single episode.

                                             C. Offend

       The term “offend” does nothing to obviate the concerns expressed in Long. We explained

there that a person’s intent to inflict a more intense emotional state than “annoy” might serve to take

the First Amendment out of the picture.14 But “offend” is no more intense an emotional state than

“annoy” and “embarrass,” which we concluded “probably describe the least intense emotional states

available under the [stalking] statute.”15



       12
            Court’s op. at 9 n.12.
       13
            Long, 931 S.W.2d at 295.
       14
            Id. at 293.
       15
           See id. at 296. In addition, “offend” appears only in the second of the two lists of
emotional terms—relating to what emotional state the victim was “reasonably likely” to suffer. See
TEX . PENAL CODE § 42.07(a)(4). The statute does not have a corresponding requirement of intent
to offend. Id., §42.07(a).
                                                                            SCOTT DISSENT — 5

                                  D. Telephone Communications

       That leaves the remaining distinctive feature of the current harassment provision: the fact that

it is limited to telephone communications. I agree with the Court that the First Amendment is not

implicated when the “intent”and the “reasonably likely” effect of a person’s conduct is to “harass,”

“abuse,” or “torment.” But I would hold that the First Amendment is implicated when the “intent”

or “reasonably likely” effect of a person’s conduct is to “annoy,” “alarm,” “embarrass,” or “offend.”

                                        1. Binding Precedent

       In Long, we said that the terms “harass,” “abuse,” and “torment” carried a greater emotional

intensity than “annoy” or “embarrass,” though they still implicated First Amendment freedoms under

the stalking statute.16 The former stalking statute expansively covered “any conduct in which a

person could possibly engage.”17 But the context in which the harassing conduct occurs can be

important. Government can act, consistent with the First Amendment, to prevent “substantial

privacy interests” from “being invaded in an essentially intolerable manner.”18 The State has the

greatest leeway in regulating expression in favor of privacy interests when it seeks to “prohibit

intrusion into the privacy of the home.”19 At the same time, the Supreme Court has stressed that “we

are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech.”20

Telephone harassment under the current statute can sometimes occur in the home, but the statute


       16
            Long, 931 S.W.2d at 296.
       17
            Id. at 289 (emphasis in original).
       18
            Cohen v. California, 403 U.S. 15, 21 (1971).
       19
            Id.
       20
            Id. (some internal quotation marks omitted).
                                                                             SCOTT DISSENT — 6

does not limit it in that manner.

                                         2. Other Jurisdictions

        In United States v. Bowker, the Sixth Circuit addressed the constitutionality of the federal

telephone harassment statute, which proscribed phone calls made by a person “without disclosing

his identity and with intent to annoy, abuse, threaten, or harass.”21 The court identified two factors

in upholding the constitutionality of the federal statute against a First Amendment overbreadth

challenge.22 First, the court explained that the federal statute focuses “not simply [on] annoying

telephonic         communications” but     also   prohibits   “abusive,   threatening   or   harassing

communications.”23 Second, the court said, the statute operates in a more private realm in which the

listener has to “deal with much more inconvenience to avoid” the unwanted speech, and the

unidentified nature of the caller was more likely to instill fear in the listener and make it more

difficult for the listener to confront the caller.24

        The New Hampshire Supreme Court distinguished its state’s telephone harassment statute

from that in Bowker on two grounds: the state statute prohibited “all telephone calls placed with the

intent to annoy or alarm” and it did not require anonymity.25 The court found that the New

Hampshire statute was not directed toward only those communications intended to instill fear in the


        21
          See United States v. Bowker, 372 F.3d 365, 377 n.3 (6th Cir. 2004), vacated on other
grounds, 543 U.S. 1182 (2005).
        22
          Id. at 379; see also United States v. Eckhardt, 466 F.3d 938, 943-44 (11th Cir. 2006)
(following Bowker).
        23
             Bowker, 372 F.3d at 379.
        24
             Id.
        25
             State v. Brobst, 151 N.H. 420, 422 (2004).
                                                                           SCOTT DISSENT — 7

victim, but instead swept far more broadly.26 “Simply put,” the court explained, “the First

Amendment is made of sterner stuff.”27 The court concluded that the New Hampshire statute was

overbroad because it covered a substantial amount of protected First Amendment speech, and there

was a real likelihood that it might discourage citizens from exercising that speech.28

       In Galloway v. State,29 Maryland’s court of last resort addressed the constitutionality of its

harassment statute, which provided as follows:

       a) Course of conduct defined. - In this section “course of conduct” means a persistent
       pattern of conduct, composed of a series of acts over a period of time, that evidences
       a continuity of purpose.

       (b) Applicability. - This section does not apply to any peaceable activity intended to
       express political views or provide information to others.

       (c) Prohibited Conduct. - A person may not follow another person in or about a
       public place or maliciously engage in a course of conduct that alarms or seriously
       annoys another person:

       (1) With intent to harass, alarm, or annoy the other person;

       (2) After reasonable warning or request to desist by or on behalf of the other person;
       and

       (3) Without a legal purpose.30

The Galloway court initially stressed the significance of the adverb “seriously” that preceded



       26
            Id.
       27
            Id. at 423.
       28
            Id.
       29
            365 Md. 599, 781 A.2d 851 (2001).
       30
        Id., 365 Md. at 608-09, 781 A.2d at 856 (quoting Maryland Code, (1957, 1996 Repl. Vol.,
2000 Cum. Supp.), Article 27, § 123) (emphasis in Galloway).
                                                                           SCOTT DISSENT — 8

“annoy,”31 but the court also noted a number of other restrictions that made the statute acceptable:

the statute required “a reasonable warning to desist,” it did not apply to “any peaceable activity

intended to express political views or provide information to others,” and it mandated that there be

no “legal purpose” for the activity.32 Additionally, the court employed a narrowing construction by

reading a “reasonable person” standard into the statute.33 Further, the court found that the presence

of a specific intent requirement, though it might not be able by itself to save a statute from

constitutional infirmity, helped to ensure that an accused had fair notice that he was violating a

criminal statute.34 The court also quoted from a Connecticut case for the proposition that its

harassment statute did not implicate overbreadth concerns under the First Amendment because the

“prohibition is against purposeful harassment by means of a device readily susceptible to abuse as

a constant trespasser upon our privacy.”35

                                3. Comparison with Other Statutes

       The harassment provision before us lacks most of the restrictions found in the statutes that

were analyzed in Bowker and Galloway. The portion of the statute at issue does not require that the




       31
            Id., 365 Md. at 608 n.4, 781 A.2d at 856 n.4.
       32
            Id., 365 Md. at 619,781 A.2d at 862.
       33
            Id., 365 Md. at 620, 781 A.2d at 863.
       34
            Id., 365 Md. at 632-33, 781 A.2d at 870-71.
       35
          Id., 365 Md. at 641-42, 781 A.2d at 876 (quoting Connecticut v. Snyder, 49 Conn. App.
617, 624, 717 A.2d 240, 243-44 (Conn. App. Ct. 1998) (in turn quoting Connecticut v. Anonymous,
34 Conn. Supp. 689, 696, 389 A.2d 1270, 1273-74 (Conn. Super. Ct. 1978))).
                                                                            SCOTT DISSENT — 9

calls be anonymous.36 Although the Texas statute proscribes “repeated” communications, it does

not require a showing that these communications were pursuant to a course of conduct. No

exception is made for the expression of political views or the dissemination of information, and no

reasonable warning to desist is required before further conduct triggers prosecution. Furthermore,

the Texas statute does not contain a “reasonable person” standard.37 And though specific intent is

required by the Texas provision, that specific intent can attach to low intensity emotional states

(annoy, alarm, embarrass).

                    4. Low Intensity versus High Intensity Emotional States

       As we said in Long, “The First Amendment does not permit the outlawing of conduct merely

because the speaker intends to annoy the listener and a reasonable person would in fact be

annoyed.”38 The same could be said of the intent to alarm or embarrass. An intent to inflict one of

these low intensity emotional states on the listener, even in the context of a telephone conversation,

could easily be part of a legitimate communication protected by the First Amendment. A constituent

might call his congressman to express a grievance, and annoying that congressman may be part of

a legitimate attempt to spur him to act on that grievance. Political phone calls could be made to the



       36
           A portion of the statute does proscribe anonymous calls, see TEX . PENAL CODE
§42.07(a)(4), but that part of the statute was not relied upon in this prosecution, and I express no
opinion about it.
       37
          Long, 931 S.W.2d at 289-90 (“reasonably likely” language in the former stalking provision
did not codify a reasonable person standard).
       38
            Id. at 290 n.4. The Supreme Court has recently suggested that whether an actor has a
particular intent is a “true-or-false determination,” not a “subjective judgment” that would render
a statute vague. See Ex parte Ellis, 309 S.W.3d 71, 89-90 (Tex. Crim. App. 2010) (quoting
Williams, 553 U.S. at 306). In Long, we recognized that even if “intent to annoy, alarm, etc.” was
clear, a statute could still “run into a serious overbreadth problem.” Long, 931 S.W.2d at 290 n.4.
                                                                           SCOTT DISSENT — 10

homes of prospective voters with the intent to alarm those voters about a candidate’s opponent39 or

about a particular government policy. A concerned neighbor or jilted lover might hope to embarrass

a husband engaged in an extramarital affair by leaving a message on his answering machine for the

wife to hear. Any of these behaviors might be criminal if the caller calls twice.

       On the other hand, no one has the right to intentionally harass, abuse, or torment other people

over a telephone. Specific intent is a limited mental state that is distinctly narrower than the mental

states of knowledge and recklessness.40 The statute requires that the caller intend to harass, abuse,

or torment the recipient of the call, not merely that the caller know or suspect that his call may have

that effect.    Moreover, the telephone is a comparatively personal and private method of

communication in which messages can be difficult to screen. As the Galloway court explained, it

is “a device readily susceptible to abuse” by a person who intends to be “a constant trespasser upon

our privacy.” When the intent of the actor is to inflict one of the higher-intensity emotional states

of harass, abuse, and torment in the relatively private, “captive-audience” telephone context, and the

actor’s conduct is reasonably likely to achieve that end, the First Amendment provides no protection.

                                          E. “Sole” Intent

       Consequently, I would hold that the harassment provision at issue implicates the First

Amendment with respect to the terms “annoy,” “alarm,” “embarrass,” and “offend,” but does not

implicate the First Amendment with respect to the terms “harass,” “abuse,” and “torment.” The



       39
            This observation was made by the court of appeals below. See Scott, 298 S.W.3d at 270.
       40
            See Stewart v. State, 240 S.W.3d 872, 873-74 (Tex. Crim. App. 2007) (overturning
tampering with evidence prosecution because, even if the defendant knew that his action would
impair the availability of marijuana as evidence, the prosecution had not shown that he intended to
impair its availability).
                                                                             SCOTT DISSENT — 11

Court contends that the entire statute is outside the purview of the First Amendment because “in the

usual case, people whose conduct violates §42.07(a)(4) will not have an intent to engage in

legitimate communications of ideas, opinion, or information; they will have only the intent to inflict

emotional distress for its own sake.”41 But nothing in the statute limits its application to those

occasions when the actor’s sole intent is to inflict emotional distress, and if the court is implying that

situations are rare in which a person has more than one intent, I disagree. The mischief this statute

can create is enormous, as some of the hypotheticals given above illustrate.

        And it is not feasible to graft “sole intent” onto the harassment statute as a narrowing

construction. As I have explained, a court has a general duty to employ reasonable narrowing

constructions to avoid constitutional violations, but it may not assume the legislative prerogative and

rewrite a statute that is not readily subject to being narrowly construed.42 The Legislature can

legitimately punish a person who intentionally harasses, abuses, or torments someone over the

telephone even if that is not the person’s sole intent. One can easily imagine an ex-boyfriend

hounding someone over the telephone with the intent to harass, abuse, or torment, but also having

a particular grievance, real or imagined, to communicate. Such actors still deserve to be punished

and are legitimately covered by the statute. When intentionally harassing, abusing, and tormenting

conduct is occurring over the telephone, the authorities should not have to refrain from acting

because the caller has or might have another reason for the call. Moreover, at trial the State would

be saddled with proving “sole intent.” A “sole intent” narrowing construction would do more to

undermine the statute than simply severing (with respect to the part of the statute at issue) the


        41
             Court’s op. at 10.
        42
             Long, 931 S.W.2d at 295.
                                                                            SCOTT DISSENT — 12

problematic terms “annoy,” “alarm,” “embarrass,” and “offend.”43 And finally, there is no basis in

the statute for applying a “sole intent” construction only to the emotional states of “annoy,” “alarm,”

and “embarrass.” The Supreme Court has explained that a party “give[s] the game away” when he

argues that an intent requirement applies in some circumstances but not others if there is no basis

whatever in the text for doing so.44 The Supreme Court stated that, though it “will often strain to

construe legislation so as to save it against constitutional attack, it must not and will not carry this

to the point of perverting the purpose of a statute.”45

                                          F. Spoken Words

        The Court also says that the text of harassment statute “does not require that the actor use

spoken words.”46 The portion of the statute at issue here proscribes “telephone communications.”47

Although someone may use a “telephone communication” for something other than words (e.g.

silence or heavy breathing), the portion of the statute at issue here overwhelmingly implicates the

spoken word. For example, ringing the phone repeatedly is proscribed by a part of the statute not




        43
           Indeed, one can wonder whether a “sole intent” narrowing construction would destroy the
statute in an attempt to save it because virtually every defendant would claim to have some other
intent in addition to an intent to inflict emotional distress.
        44
           Holder v. Humanitarian Law Project, 130 S. Ct. at 2718. (“Finally, plaintiffs give the
game away when they argue that a specific intent requirement should apply only when the material-
support statute applies to speech. There is no basis whatever in the text of § 2339B to read the same
provisions in that statute as requiring intent in some circumstances but not others.”).
        45
             Id.
        46
             Court’s op. at 9.
       47
             See TEX . PENAL CODE §42.07(a)(4), quoted in this opinion, ante.
                                                                         SCOTT DISSENT — 13

at issue here.48 Moreover, although words are not required, that fact would not distinguish this case

from Long, in which First Amendment freedoms were found to be implicated by the stalking

statute.49

        For the above reasons, I respectfully dissent.

Filed: October 6, 2010
Publish




        48
             S ee TEX . PENAL CODE §42.07(a)(4).
        49
              See this opinion, ante.
