                                 Fourth Court of Appeals
                                          San Antonio, Texas
                                                   OPINION

                                              No. 04-18-00127-CR

                                      EX PARTE Leonardo NUNCIO

                      From the County Court at Law No. 1, Webb County, Texas
                                Trial Court No. 2017 CVJ 002365-C1
                             Honorable Hugo Martinez, Judge Presiding

Opinion by: Beth Watkins, Justice
Dissenting Opinion by: Liza A. Rodriguez, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Beth Watkins, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: April 10, 2019

AFFIRMED

           Authorities charged appellant Leonardo Nuncio with violating section 42.07(a)(1) of the

Texas Penal Code, i.e., the harassment statute. Nuncio filed a pretrial application for writ of habeas

corpus in which he contended sections 42.07(a)(1) and (b)(3) of the harassment statute were

unconstitutionally overbroad and vague. The trial court denied his application. On appeal, Nuncio

contends the trial court erred in denying his application. 1 We affirm the trial court’s order denying

Nuncio’s application for writ of habeas corpus.




1
 In his application, Nuncio challenged the statutory provisions as both facially unconstitutional and unconstitutional
as applied. On appeal, however, Nuncio argues only the facial unconstitutionality of the provisions.
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                                         BACKGROUND

       According to the complaint prepared by an investigator from the Laredo Police Department

(“LPD”), he met with the complainant at her residence. The complainant told the investigator she

met with Nuncio for a job interview. The complainant stated that during the two-hour interview

Nuncio stared at her breasts and “made several rude comments.” Nuncio allegedly asked the

complainant if she liked to “party” and asked “what have you and your boyfriend done (sexually).”

He also asked if her breasts were “Ds or double Ds” and told the complainant she was “hot.”

Nuncio went on to ask the complainant to text her boyfriend “so you all can do a quickie in the

back (of [the restaurant]).” Nuncio also told the complainant she “can’t be a virgin” and work for

him.

       When the LPD investigator asked to meet with Nuncio, Nuncio refused and stated his intent

to sue the complainant’s mother for comments she allegedly made on social media about her

daughter’s encounter with Nuncio. The District Attorney’s Office subsequently approved an arrest

warrant for Nuncio, and a sworn complaint alleged Nuncio, “with intent to harass, annoy, alarm,

abuse, torment, or embarrass [the complainant], … initiate [sic] communication with the

complainant, and in the course of the communication, make [sic] an obscene comment, to-wit:

making comments about her breasts, asking about her sexual history, and/or telling [her] she could

not be a virgin and work for him.”

       In response to the charge, Nuncio filed an application for writ of habeas corpus, challenging

the constitutionality of the harassment statute under which he was charged. After the trial court

denied his application, Nuncio timely perfected this appeal.

                                            ANALYSIS

       In his first two appellate issues, Nuncio challenges the facial constitutionality of sections

42.07(a)(1) and (b)(3) of the Texas Penal Code, arguing the provisions are overbroad and vague.


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Section 42.07(a) provides that a person commits the offense of harassment if “with intent to harass,

annoy, alarm, abuse, torment, or embarrass another, the person … initiates communication and in

the course of the communication makes a comment, request, suggestion, or proposal that is

obscene[.]” TEX. PENAL CODE ANN. § 42.07(a)(1). “Obscene” is specifically defined as “a

patently offensive description of or a solicitation to commit an ultimate sex act, including sexual

intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory

function.” Id. § 42.07(b)(3). Nuncio argues the challenged provisions are overbroad because they

invade the area of protected speech and are vague in that they deprive a person of adequate notice

of the prohibited activity and give law enforcement authorities too much discretion with regard to

enforcement. As for his third issue, Nuncio suggests this court should overturn the Supreme

Court’s opinion in Miller v. California, arguing its definition of obscenity is outdated.

                                        Standard of Review

       A defendant may file a pretrial application for writ of habeas corpus to raise a facial

challenge to the constitutionality of the statute under which the defendant is charged. Ex parte

Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App. 2014); Ex parte Zavala, 421 S.W.3d 227, 231

(Tex. App.—San Antonio 2103, pet. ref’d). An appellate court generally reviews a trial court’s

decision to grant or deny an application for writ of habeas corpus under an abuse of discretion

standard. Ex parte Thompson, 414 S.W.3d 872, 876 (Tex. App.—San Antonio 2013), aff’d, 442

S.W.3d at 330. However, when the trial court’s ruling is based purely on an application of law,

such as the constitutionality of a statute, we review the ruling de novo. Id.; see Ex Parte Lo, 424

S.W.3d 10, 14 (Tex. Crim. App. 2013), abrogated in part on other grounds, TEX. CONST. art. V,

§ 32; Lebo v. State, 474 S.W.3d 405 (Tex. App.—San Antonio 2015, pet. ref’d).

       When presented with a challenge to the constitutionality of a statute, an appellate court

usually presumes the statute is valid and the Legislature has not acted arbitrarily or unreasonably.


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Lo, 424 S.W.3d at 14–15.               With respect to constitutional provisions other than the First

Amendment, a facial challenge to the constitutionality of a statute succeeds only if it is shown the

statute is unconstitutional in all of its applications. State v. Johnson, 475 S.W.3d 860, 864 (Tex.

Crim. App. 2015). However, if the statute in question restricts and punishes speech based on its

content, the usual presumption of constitutionality does not apply. Lo, 424 S.W.3d at 15. Content-

based restrictions are presumptively invalid, and the State has the burden to rebut the presumption.

Id. A court uses strict scrutiny in its review of a content-based statute. Thompson, 442 S.W.3d at

344–45; Lo, 424 S.W.3d at 15–16.

                                                     Overbreadth

         Nuncio contends sections 42.07(a)(1) and (b)(3) are unconstitutionally overbroad,

violating the First and Fourteenth Amendments of the United States Constitution and Article I,

section eight of the Texas Constitution. 2 See U.S. CONST. amends. I, XIV; TEX. CONST. art. I, §

8. When, as here, a party challenges a statute as both overbroad and vague, we must first consider

the overbreadth challenged. See Ex parte Maddison, 518 S.W.3d 630, 636 (Tex. App.—Waco

2017, pet. ref’d) (citing Ex parte Flores, 483 S.W.3d 632, 643 (Tex. App.—Houston [14th Dist.]

2015, pet. ref’d)).

         A statute may be challenged as overbroad, in violation of the First Amendment — and

Article I, section 10 — if, in addition to proscribing activity that may be constitutionally forbidden,



2
 Nuncio also contends the challenged provisions violate Article I, section 10 of the Texas Constitution. This provision
concerns the rights of defendants in criminal prosecutions. It provides that in all criminal prosecutions, the accused
has the right to: (1) a speedy public trial by an impartial jury; (2) demand the nature and cause of the accusation against
him; (3) refuse to incriminate himself; (4) be heard by himself, counsel, or both; (5) confront the witnesses against
him; (6) produce and have evidence admitted; and (7) indictment by a grand jury except under certain circumstances.
TEX. CONST. art. I, §10. Nuncio provides no argument or authority challenging sections 42.07(a)(1) and (b)(3) with
regard to these constitutional protections. Rather, his argument is limited to a challenge that the statutory provisions
are overbroad under the First Amendment of the United States Constitution and article I, section 8 of the Texas
Constitution. See U.S. CONST. amend. I; TEX. CONST. art. I, § 8. Accordingly, we do not consider his overbreadth
argument as a challenge under article I, section 10 of the Texas Constitution.


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it sweeps within its coverage a substantial amount of expressive activity that is protected by the

First Amendment. See Scott v. State, 322 S.W.3d 662, 665 n.2 (Tex. Crim. App. 2010), abrogated

in part on other grounds, Wilson v. State, 448 S.W.3d 418, 423 (Tex. Crim. App. 2014). However,

the overbreadth doctrine “is strong medicine that is used sparingly and only as a last resort.”

Johnson, 475 S.W.3d at 865. To qualify as unconstitutionally overbroad, “the statute must prohibit

a substantial amount of protected expression and the danger that the statute will be

unconstitutionally applied must be realistic and not based on ‘fanciful hypotheticals.’” Id.

(emphasis added) (quoting United States v. Stevens, 559 U.S. 460, 485 (2010) (Alito, J.,

dissenting)). Laws restricting the exercise of rights under the First Amendment are facially

overbroad only if the impermissible applications of the law are real and substantial when judged

in relation to the statute’s legitimate sweep. Maddison, 518 S.W.3d at 636. We must uphold a

challenged statute if we can ascertain a reasonable construction that renders it constitutional. Id.;

Flores, 483 S.W.3d at 643.

       The State argues the provisions challenged by Nuncio are not unconstitutionally overbroad

because under a reasonable construction, they do not prohibit expression protected by the First

Amendment. More specifically, the State contends the statute does not implicate the First

Amendment because it proscribes the use of obscenity — unprotected speech — for purposes of

harassment. In other words, the State argues the harassment statute’s “plain legitimate sweep” is

to protect a victim from obscene communications intended to harass, annoy, alarm, abuse, torment,

or embarrass. See TEX. PENAL CODE §§ 42.07(a)(1), (b)(3). Thus, because the only speech or

communications prohibited by sections 42.07(a)(1) and (b)(3) are those that are obscene and

intended to injure another, and obscenity is defined in subsection (b)(3) more narrowly than by the

Supreme Court in Miller v. California, the provisions do not criminalize conduct protected by the

First Amendment and are not overbroad.


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         To determine whether the State is correct, we must first determine the protection afforded

by the free-speech guarantee of the First Amendment and then determine the meaning of the

challenged statutory provision. See Scott, 322 S.W.3d at 668. The First Amendment, as applicable

to the states through the Fourteenth Amendment, prohibits laws that abridge freedom of speech.

U.S. CONST. amends. I, XIV. Article I, section 10 of the Texas Constitution provides similar

protections. 3 TEX. CONST. art. I, § 10. The constitutional guarantee of free speech generally

protects the free communication and receipt of ideas, opinions, and information. Scott, 322 S.W.3d

at 668 (citing Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 390 (1969); Chaplinsky v. New

Hampshire, 315 U.S. 568, 571–72 (1942)). However, the First Amendment has never been treated

as an absolute. Miller v. California, 413 U.S. 15, 23 (1973); Scott, 322 S.W.3d at 668. As the

Supreme Court recognized United States v. Stevens, States may proscribe certain categories of

speech without violation of First Amendment protections.                        559 U.S. 460, 468–69 (2010)

(recognizing obscenity, defamation, fraud, incitement, and speech integral to criminal conduct not

constitutionally protected); see Cohen v. California, 403 U.S. 15, 20 (1971) (recognizing States

are free to ban obscenity, fighting words, and intrusion into substantial privacy interests of others).

Thus, “[o]therwise proscribable conduct does not become protected by the First Amendment

simply because the conduct happens to involve the written or spoken word.” State v. Stubbs, 502




3
  The only cases in which courts have held the Texas Constitution creates a higher standard have involved prior
restraints in the form of court orders prohibiting or restricting speech. Comm’n for Lawyer Discipline v. Benton, 980
S.W.2d 425, 434–35 (Tex. 1998); see San Antonio Express-News v. Roman, 861 S.W.2d 265, 267–68 (Tex. App.––
San Antonio 1993, orig. proceeding). This is not a prior restraint case. Moreover, when neither party argues the Texas
Constitution offers greater protection, we treat the state and federal free exercise guarantees as co-extensive. State v.
Valerie Saxion, Inc., 450 S.W.3d 602, 613 (Tex. App.––Fort Worth 2014, no pet.) (citing HEB Ministries, Inc. v. Tex.
Higher Educ. Coordinating Bd., 235 S.W.3d 627, 649–50 (Tex. 2007)); see generally Luquis v. State, 72 S.W.3d 355,
364–65 (Tex. Crim. App. 2002) (relying on Texas Supreme Court decision when addressing matter of state
constitutional law). Nuncio has not argued article I, section 8 of the Texas Constitution provides greater protection
than that provided by the First Amendment of the United States Constitution. Thus, we treat the protections provided
under both constitutions as co-extensive. See Valerie Saxion, Inc., 450 S.W.3d at 613.


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S.W.3d 218, 226 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (citing United States v.

Alvarez, 567 U.S. 709, 717 (2012)).

       Having set forth the protection provided by the First Amendment, we consider the plain

meaning of the acts proscribed by sections 42.07(a)(1) and (b)(3) to determine what they

encompass. See Scott, 322 S.W.3d at 668; Maddison, 518 S.W.3d at 636. Under the principles of

statutory construction, we must construe a statute according to the plain meaning of its language,

unless the language is ambiguous or the interpretation would lead to absurd results the legislature

could not have intended. Ex parte Perry, 483 S.W.3d 884, 902 (Tex. Crim. App. 2016); Ex parte

Zavala, 421 S.W.3d 227, 231 (Tex. App.––San Antonio 2013, pet. ref’d). In determining the plain

meaning of a statute, we read the words and phrases in context, construing them according to rules

of grammar and common usage. Zavala, 421 S.W.3d at 231 (citing TEX. GOV’T CODE ANN.

§ 311.011(a)). However, words that have acquired a technical or particular meaning, whether by

legislative definition or otherwise, must be construed accordingly. Maddison, 518 S.W.3d at 636–

37 (citing TEX. GOV’T CODE § 311.011(b)).

       As set out above, section 42.07(a) provides that a person commits the offense of harassment

if “with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person … initiates

communication and in the course of the communication makes a comment, request, suggestion, or

proposal that is obscene[.]” TEX. PENAL CODE § 42.07(a)(1). “Obscene” is specifically defined

as “a patently offensive description of or a solicitation to commit an ultimate sex act, including

sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory

function.” Id. § 42.07(b)(3). We hold sections 42.07(a)(1) and (b)(3) are not ambiguous.

       As for section 42.07(a)(1), the text first requires the actor to have the specific intent to

inflict harm on the victim in the form of one of the six listed types of emotional distress. Id.

§ 42.07(a)(1); see Scott, 322 S.W.3d at 669. It then requires the alleged perpetrator to initiate a


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communication during which he makes obscene comments or suggestions. TEX. PENAL CODE

§ 42.07(a)(1). Section 42.07(b)(3) defines the term “obscene,” using a narrower definition than

the Miller prohibition against the use of “patently offensive” descriptions of “sexual conduct,”

limiting the term “obscene” to a description of an “ultimate sex act” involving genital or anal

contact, or an excretory function. Id. § 42.07(b)(3); see Miller, 413 U.S. at 24. The definition of

obscenity, as recognized by the court of criminal appeals, provides “a meaning readily

comprehended by the average person.” Lefevers v. State, 20 S.W.3d 707, 712 (Tex. Crim. App.

2000). Thus, the provisions challenged by Nuncio plainly proscribes the conduct of initiating a

communication and therein making specific obscene remarks with the intent to emotionally harm

the person to whom the communication is made. TEX. PENAL CODE § 42.07(a)(1). Based on our

construction, the proscribed conduct most certainly involves speech. The question is whether the

conduct is entitled to First Amendment protection. See Maddison, 518 S.W.3d at 637.

       As noted above, the State has authority to regulate and proscribe certain categories of

speech because those categories are not protected by the First Amendment. See Stevens, 559 U.S.

at 668–69; Cohen, 403 U.S. at 20. One of those categories is obscenity. See generally Miller, 413

U.S. at 2l4 (holding obscenity is not protected by the First Amendment). The challenged statutory

provisions are not susceptible of application to communicative conduct that is protected by the

First Amendment, i.e., they do not implicate the free-speech guarantee, because by their plain text

they are directed only at persons who, with intent to emotionally harm another, make obscene

remarks. See TEX. PENAL CODE § 42.07(a)(1), (b)(3). There is nothing in the statutory provisions

to suggest they are broad enough to suppress protected speech. See id. Nuncio’s numerous

hypotheticals suggesting applications of the statute that might reach protected speech are

insufficient to establish overbreadth. See Johnson, 475 S.W.3d at 865 (holding challenged statute

must prohibit substantial amount of protected expression and danger of unconstitutional


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application cannot be based on fanciful hypotheticals). Accordingly, we hold sections 42.07(a)(1)

and (b)(3) are not constitutionally overbroad as they do not prohibit a substantial amount of

protected speech, but merely prohibit communication of unprotected obscenities intended to harm

the person to whom they are directed. A person whose conduct violates sections 42.07(a)(1) and

(b)(3) is not engaging in a legitimate communication of ideas, opinions, or information, but has

only the intent to inflict emotional distress for its own sake. See Scott, 322 S.W.3d at 670.

                                             Vagueness

       Nuncio also challenges sections 42.07(a)(1) and (b)(3) based on vagueness. He argues the

provisions are unconstitutionally vague in that they fail to provide adequate notice of the prohibited

conduct and encourage arbitrary and capricious prosecution. Nuncio contends, based generally on

the statute’s use of “another,” that a person of ordinary intelligence cannot determine who is the

victim, leaving law enforcement authorities with unfettered discretion to decide under what

circumstances to enforce the provision. Nuncio seems to suggest the challenged provisions are so

vague that prosecution is possible — and wholly within the discretion of law enforcement

authorities — when the prohibited communication is overheard by random persons. Nuncio argues

that due to vagueness, the statutory provisions violate his due process rights under the Fifth and

Fourteenth Amendments, his right to know the nature of the accusation against him under Article

1, section 10 of the Texas Constitution, and his due course of law rights under Article 1, section

19 of the Texas Constitution. See U.S. CONST. amends. V, XIV; TEX. CONST. arts. I, §§ 10, 19.

       A statute is unconstitutionally vague and violative of due process if it fails to provide a

person of ordinary intelligence fair notice of what the statute prohibits or authorizes or encourages

seriously discriminatory enforcement. Maddison, 518 S.W.3d at 639–40 (quoting Ex parte

Bradshaw, 501 S.W.3d 665, 677–78 (Tex. App.—Dallas, 2016, pet. ref’d) (citing United States v.

Williams, 553 U.S. 285, 304 (2008)). In other words, a statute is unconstitutionally vague if


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persons of common intelligence must guess at its meaning and differ about its proper application.

Maddison, 518 S.W.3d at 639–40. All criminal laws must give fair notice about what activity is

made criminal. Bradshaw, 501 S.W.3d at 67 (citing Bynum v. State, 767 S.W.2d 769, 773 (Tex.

Crim. App. 1989) (en banc)). However, courts do not require that statutes be mathematically

precise; rather, statutes need only provide fair warning in light of common understanding and

practices. Ex parte Paxton, 493 S.W.3d 292, 305 (Tex. App.—Dallas 2016, pet. ref’d) (en banc).

A statute is not unconstitutionally vague simply because the words or terms used are not

specifically defined. Wagner v. State, 539 S.W.3d 298, 314 (Tex. Crim. App. 2018). Rather,

words or phrases within a statute must be read in the context in which they are used. Id. Statutory

provisions satisfy vagueness requirements if they “convey[] sufficiently definite warning as to the

proscribed conduct when measured by common understanding and practices.” Id. (quoting Jordan

v. De George, 341 U.S. 223, 231–32 (1951)).

       When a statute does not implicate free speech under the First Amendment, a person

challenging that statute for vagueness must establish it was unduly vague as applied to his own

conduct. Wagner, 539 S.W.3d at 314; Scott, 322 S.W.3d at 670–71. If First Amendment rights

are implicated, the statute in question must also be sufficiently definite to avoid chilling protected

speech or expression, and a challenger may complain of vagueness of the statute as it may be

applied to others. Wagner, 539 S.W.3d at 314; Scott, 322 S.W.3d at 670–71. As we explained in

our analysis of Nuncio’s overbreadth challenge, sections 42.07(a)(1) and (b)(3) do not infringe

upon any constitutionally protected speech or conduct. Accordingly, we decline to adopt the more

stringent vagueness standard that would apply to a statute that “abuts upon sensitive areas of First

Amendment freedoms.” Wagner, 539 S.W.3d at 315.

       Applying the plain language of sections 42.07(a)(1) and (b)(3) to this particular case, we

hold the challenged provisions are not unconstitutionally vague. We conclude a person of ordinary


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intelligence would recognize the provisions at issue prohibit a person from starting a

communication with a person and during the course of the communication, making obscene

comments, requests, or suggestions in an effort to emotionally harm the person to whom the

comments, requests, or suggestions are made. The provisions are more than adequate to allow

those of ordinary intelligence to recognize the term “another,” as used in the statute, is a reference

to the victim, that is, the person with whom the alleged perpetrator was communicating and

intending to emotionally harm.        Likewise, the provisions do not authorize or encourage

discriminatory enforcement, but permit enforcement only when obscene comments or remarks are

directed by the perpetrator to a particular victim with intent to harm. See Maddison, 518 S.W.3d

at 639–40.

       Moreover, even if the First Amendment is implicated, the statutory provisions cannot be

interpreted to suggest that obscene comments made and heard in the hypothetical ether are

prohibited.   Rather, to sustain a prosecution, it is clear a person must engage in obscene

communication with a particular person with the intent that the particular person feel harassed,

annoyed, alarmed, abused, tormented, or embarrassed. Accordingly, we hold sections 42.07(a)(1)

and (b)(3) are not unconstitutionally vague.

                             Request to Overturn Miller v. California

       In 1974, the Supreme Court set out a test for obscenity in Miller v. California. 413 U.S. at

24. The Court held material is obscene when: (1) an average person applying contemporary

community standards would find that when taken as a whole, the material appeals to the prurient

interest; (2) the material describes or depicts, in a patently offensive way, sexual conduct

specifically defined by applicable state law; and (3) the material, when taken as a whole, lacks

serious literary, artistic, political, or scientific value. Id. Nuncio contends this standard is no

longer “valid, accurate, and/or an effective test for distinguishing obscenity from protected speech”


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in the Internet era and asks that we reject it in our evaluation of his challenges to the

constitutionality of sections 42.07(a)(1) and (b)(3).

       Since Miller was decided, the Texas Court of Criminal Appeals has continuously applied

its test for obscenity in addressing allegations of unconstitutionality in numerous contexts. See,

e.g., Lo, 424 S.W.3d at 21 (recognizing Miller defines obscenity); Lefevers, 20 S.W.3d at 709

(recognizing Texas Legislature drafted harassment statute “with an eye toward the constitutional

definition of obscenity” as set out in Miller); Davis v. State, 658 S.W.2d 572, 578 (Tex. Crim.

App. 1983) (en banc) (holding that Miller sets forth “the test the States of the Union must follow

when they seek to regulate or control obscenity”); West v. State, 514 S.W.2d 433, 442 (Tex. Crim.

App. 1974) (op. on reh’g) (applying Miller in determining constitutionality of Texas obscenity

statute). As an intermediate appellate court, we are bound by pronouncements of the court of

criminal appeals. State v. Nelson, 530 S.W.3d 186, 190 (Tex. App.—Waco 2016, no pet.) (citing

Wiley v. State, 112 S.W.3d 173, 175 (Tex. App.––Fort Worth 2003, pet. ref’d)); De Leon v. State,

373 S.W.3d 644, 650 n.3 (Tex. App.––San Antonio 2012, pet. ref’d). Accordingly, we may not

— as Nuncio suggests — overturn Miller’s definition of obscenity. See Nelson, 530 S.W.3d at

190; De Leon, 373 S.W.3d at 650 n.3.

                                           CONCLUSION

       Based on the foregoing analysis, we hold sections 42.07(a)(1) and (b)(3) of the Texas Penal

Code are neither unconstitutionally overbroad nor vague. We further hold we are precluded from

overturning Miller, which has been adopted and applied by the court of criminal appeals since it

was decided in 1974. Accordingly we overrule Nuncio’s issues and affirm the trial court’s order

denying his application for writ of habeas corpus.

                                                   Beth Watkins, Justice

Publish


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