                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-18-00372-CR


                      BAOQUOC TRAN NGUYEN, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                      On Appeal from the County Criminal Court No. 6
                                   Tarrant County, Texas
                 Trial Court No. 1546160, Honorable John Weeks, Presiding

                                      April 15, 2020

                             CONCURRING OPINION
                     Before QUINN, C.J., and PIRTLE and DOSS, JJ.


      I concur in the result for the reasons stated in Chief Justice Quinn’s concurring

opinion, and for the further reason stated below.


      In Scott v. State, 322 S.W.3d 662, 669 (Tex. Crim. App. 2010), abrogated in part

on other grounds by Wilson v. State, 448 S.W.3d 418, 422 (Tex. Crim. App. 2014), the

Court of Criminal Appeals held that the plain language of TEX. PENAL CODE § 42.07(a)(4)

“does not implicate the free-speech guarantee of the First Amendment” because it
prohibits conduct. As an example, the statute prohibits a person, with the requisite intent

to harass, annoy, alarm, abuse, torment, or embarrass another, from causing the

telephone of another to ring repeatedly. Id. This prohibition is separate and distinct from

the remainder of section 42.07(a)(4), including the expressive activity that appellant

complains is protected by the First Amendment.


       The evidence shows the appellant encouraged others to engage in call flooding:

he provided telephone numbers so “people from all over the world can immediately start

calling in and flood the phone lines disrupting utilities, disrupting the police, disrupting

anybody that they have thus targeted with that phone number.” The jury could therefore

reasonably conclude from the evidence that appellant caused the telephone number of

another to ring repeatedly, and that he did so with the intent to intent to harass, annoy,

alarm, abuse, torment, or embarrass another. Pizzo v. State, 235 S.W.3d 711, 715 (Tex.

Crim. App. 2007) (holding that jury may find alternate forms of commission of an offense

when the charging offense lists them in the disjunctive). As appellant fails to show how

this non-expressive conduct affects a protected right to speak freely or petition the

government, I would affirm the conviction because a discussion of constitutional issues

is not necessary to disposition of the appeal.




                                                        Lawrence M. Doss
                                                           Justice


Do not publish.
