                               In the
                          Court of Appeals
                  Second Appellate District of Texas
                           at Fort Worth
                         ___________________________

                              No. 02-17-00188-CR
                         ___________________________

                         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 by Chief Justice Sudderth




      Justice Bill Meier was a member of the original panel but has since retired.
      1

Therefore, the two remaining justices decided the case. See Tex. R. App. P. 41.1(b).
                          OPINION ON REHEARING

      Appellee the State of Texas filed a motion for rehearing of our August 8, 2019

opinion and judgment. We deny the motion but withdraw our prior opinion and

substitute the following in its place. With the exception of a footnote added to

address the State’s argument for rehearing, our opinion otherwise remains unchanged.

      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

      2
       The nine counts similarly charge that on different dates, Barton “did then and
there intentionally, in a manner reasonably likely to harass, annoy, alarm, abuse,
torment, embarrass, or offend Mona Dawson, send repeated electronic
communications, to wit: text messages or email communications to Mona Dawson.”


                                          2
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:

       An accused may challenge the facial constitutionality of a statute defining the
         3

charged offense through a pretrial application for writ of habeas corpus. Ex parte
Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App. 2014) (citing Ex parte Ellis, 309
S.W.3d 71, 79 (Tex. Crim. App. 2010)).


                                               3
                    (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


         The definition of “electronic communication” was amended in 2017. It now
         4

reads: “(A) a communication initiated through the use of electronic mail, instant
message, network call, a cellular or other type of telephone, a computer, a camera, text
message, a social media platform or application, an Internet website, any other
Internet-based communication tool, or facsimile machine; and (B) a communication
made to a pager.” Tex. Penal Code Ann. § 42.07(b)(1)(A). We construe only the law
as it existed in 2013.

        Barton did not argue to the trial court and does not argue before this court
         5

that section 42.07(a)(7) constitutes a content-based restriction on speech, which
would shift the burden to the State and require the application of strict scrutiny. See
Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2232 (2015). Barton has therefore
forfeited any such argument and we will apply the “normal standard of review,”
presuming that the statute is valid and placing the burden upon Barton to establish its
unconstitutionality. Wagner v. State, 539 S.W.3d 298, 316–17 (Tex. Crim. App. 2018).

        A claim that a statute is unconstitutional on its face is a claim that the statute,
         6

by its terms, always operates unconstitutionally. Gillenwaters v. State, 205 S.W.3d 534,
536 n.2 (Tex. Crim. App. 2006). A claim that a statute is unconstitutional “as applied”
is a claim that the statute operates unconstitutionally with respect to the defendant
because of his particular circumstances. Id. at n.3.


                                            4
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.”7 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. 47.1.8



      7
        In its motion for rehearing, the State asserts that Appellant has never argued
that 42.07(a)(7) is unconstitutionally overbroad. This is an about-face from the State’s
previous briefing, which not only acknowledged Appellant’s overbreadth arguments
but in fact referred to them no fewer than seven times in its response brief, including
a four-page subsection titled, “Section 42.07(a)(7) is not unconstitutionally overbroad
because it does not criminalize protected speech.” [Emphasis added.] We disagree
with the State’s new position.
      8
        In his third point, Barton argues that the information was invalid and should
have been quashed because it failed to clearly specify the manner and the means by
which he allegedly violated penal code subsection 42.07(a)(7). Although we do not
reach this point, we note that we have no jurisdiction to review interlocutory orders
unless that jurisdiction has been expressly granted by law, and no law authorizes an
interlocutory appeal of an order denying a motion to quash. Apolinar v. State, 820
S.W.2d 792, 794 (Tex. Crim. App. 1991); Ex parte Alvear, 524 S.W.3d 261, 263 (Tex.
App.—Waco 2016, pet. ref’d).


                                           5
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.9 Scott, 322 S.W.3d at 666. In that case, Scott


       The subsection at issue provided: “A person commits an offense if, with intent
       9

to harass, annoy, alarm, abuse, torment, or embarrass another, he . . . makes repeated

                                             6
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),10 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

telephone communications . . . in a manner reasonably likely to harass, annoy, alarm,
abuse, torment, embarrass, or offend another.” Id. at 666 n.4; see also 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)(4)).
      10
        The San Antonio court additionally held that the electronic-communications
subsection was unduly vague based upon its interpretation of a second charging
instrument against Scott as charging him with violating section 42.07(a)(7). Id. at 269.
The court of criminal appeals disagreed with the San Antonio court’s interpretation of
the second charging instrument, held that the charging instrument did not involve an
electronic communication, and held that the court of appeals erred in addressing the
constitutionality of subsection 42.07(a)(7). Scott, 322 S.W.3d at 668.


                                             7
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 essentially intolerable manner.”        Id.   Because section

42.07(a)(4) did not reach communicative conduct, it did not implicate the free-speech

guarantee of the First Amendment. Id. 11

      Presiding Judge Keller disagreed with the majority’s decision. In her dissent,

she argued that section 42.07(a)(4) implicated the First Amendment “with respect to

the terms ‘annoy,’ ‘alarm,’ ‘embarrass,’ and ‘offend,’”—emotional states that she

identified as “low intensity”—but did not implicate the First Amendment “with

respect to the terms ‘harass,’ ‘abuse,’ and ‘torment’”—emotional states that she

identified as “high intensity.” Id. at 676 (Keller, P.J., dissenting). The distinction she

drew between low and high intensity emotional states was in part based on the

inherently personal and invasive nature of telephone calls:


      11
        At least four of our sister courts have applied this reasoning to a First
Amendment analysis of subsection 42.07(a)(7). See Ex parte Hinojos, No. 08-17-00077-
CR, 2018 WL 6629678, at *5‒6 (Tex. App.—El Paso Dec. 19, 2018, pet. ref’d) (not
designated for publication); Ex parte Reece, No. 11-16-00196-CR, 2016 WL 6998930, at
*3 (Tex. App.—Eastland Nov. 30, 2016, pet ref’d) (mem. op., not designated for
publication); Blanchard v. State, No. 03-16-00014-CR, 2016 WL 3144142, at *3 (Tex.
App.—Austin June 2, 2016, pet. ref’d) (mem. op., not designated for publication);
Lebo v. State, 474 S.W.3d 402, 407 (Tex. App.—San Antonio 2015, pet. ref’d). We
disagree with those courts for the reasons discussed herein.


                                            8
      [T]he telephone is a comparatively personal and private method of
      communication in which messages can be difficult to screen. . . . [I]t 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.

Id. (citation and footnotes omitted) (emphasis added).

      Keller disagreed with what she assessed as the majority’s unnecessary “graft[ing

of] ‘sole intent’ onto the harassment statute as a narrowing construction.” Id. at 676

(“[I]f 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 an

example, she wrote, “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.” Id. at 677.

      Four years later, the court of criminal appeals disavowed portions of the Scott

decision. In Wilson v. State, it directly abrogated dicta in a footnote in the Scott

decision that defined “repeated telephone communications” to mean “more than one

telephone call in close enough proximity to properly be termed a single episode.” 448

S.W.3d 418, 422 (Tex. Crim. App. 2014) (discussing and quoting Scott, 322 S.W.3d at

669 n.12 (majority opinion)). But more important to this case, the court of criminal

appeals acknowledged that a potential offender could have more than one intent in




                                           9
delivering harassing conduct. Id. at 425; see also id. at 426 (Keller, P.J., concurring)

(describing the majority decision as “abandoning” the sole-intent requirement).

       The court’s decision in Wilson addressed an evidentiary-sufficiency challenge to

a conviction for telephonic harassment under subsection (a)(4); it did not address a

challenge to the constitutionality of the statute. Id. at 424–26 (majority opinion)

(noting that constitutional vagueness and overbreadth challenges were not implicated

in the appellant’s legal-sufficiency challenge). But the court did acknowledge the

potential that a “facially legitimate” reason may exist in a harassing phone call. Id. at

425 (“[T]he existence of evidence that may support the conclusion that the call had a

facially legitimate purpose does not legally negate the prohibited intent or manner of

the call.”). In her concurring opinion, which was joined by Judge Cheryl Johnson,

Presiding Judge Keller reiterated her warnings of the overbreadth of the statute and

urged the court to re-evaluate the holding in Scott at its next opportunity. Id. at 426

(Keller, P.J., concurring).

       We agree that the Wilson decision recognized that a person who communicates

with the intent to harass, annoy, alarm, abuse, torment, or embarrass can also have an

intent to engage in the legitimate communication of ideas, opinions, information, or

grievances. See Scott, 322 S.W.3d at 669–70. As the court explained in Wilson, a phone

call by the appellant (a neighbor of the complainant) had both a facially legitimate

reason behind it—to inform the complainant of construction issues—and could also

have been made with an intent to harass or annoy the complainant when viewed in

                                           10
the context of other harassing phone calls made by the appellant.12 Wilson, 448

S.W.3d at 425.

       Indeed, four years after Wilson, this court rejected such an argument when we

held that the electronic-communications provision of the harassment statute—section

42.07(a)(7)—was unconstitutionally vague and, therefore, void. Karenev v. State, 258

S.W.3d 210, 213 (Tex. App.—Fort Worth 2008), rev’d on other grounds, 281 S.W.3d 428

(Tex. Crim. App. 2009). As we pointed out, the problem with the State’s argument

that harassment is not First Amendment protected speech was that the challenged

statute itself defined harassment, and “[u]nless the harassment statute [was]

sufficiently clear to withstand constitutional scrutiny, no unlawful harassment exists

that would be excluded from First Amendment protection.” Id. We agree with our

prior holding in this respect.

       Having held that section 42.07(a)(7) affects protected speech, we turn to an

analysis of its vagueness and overbreadth.

II. The vagueness and overbreadth of section 42.07(a)(7)

       A. Applicable law of vagueness and overbreadth analyses

       “[V]ague laws offend the Federal Constitution by allowing arbitrary and

discriminatory enforcement, by failing to provide fair warning, and by inhibiting the

exercise of First Amendment freedoms.” May v. State, 765 S.W.2d 438, 439 (Tex.

        Barton’s counsel supplied another apt example at oral argument: a father’s
       12

repeated text messages to his teenage child asking the teenager to mow the lawn.


                                             11
Crim. App. 1989). When examining the vagueness of a statute, we focus on the

statute’s ability to provide fair notice of the prohibited conduct. State v. Doyal, No.

PD-0254-18, 2019 WL 944022, at *5 (Tex. Crim. App. Feb. 27, 2019) (requiring that a

law imposing criminal liability be sufficiently clear “(1) to give a person of ordinary

intelligence a reasonable opportunity to know what is prohibited and (2) to establish

determinate guidelines for law enforcement”).                 A law that implicates First

Amendment freedoms requires even greater specificity “to avoid chilling protected

expression.” Id. As the court of criminal appeals recently explained, specificity and

clarity are important to prevent citizens from “steer[ing] far wider of the unlawful

zone than if the boundaries of the forbidden areas are clearly marked.” Id. (quoting

Grayned v. City of Rockford, 408 U.S. 104, 109, 92 S. Ct. 2294, 2299 (1972)). And the

United States Supreme Court has also emphasized the importance of specificity and

clarity so that law enforcement has “minimal guidelines” to prevent “a standardless

sweep [that] allows policemen, prosecutors, and juries to pursue their personal

predilections.” Kolender v. Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855, 1858–59 (1983).

       Vagueness and overbreadth are intertwined. Long v. State, 931 S.W.2d 285, 288

(Tex. Crim. App. 1996) (citing Kramer v. Price, 712 F.2d 174, 176 n.3, 177 (5th Cir.),

reh’g en banc granted and prior opinion vacated, 716 F.2d 284 (5th Cir. 1983), aff’g dist ct., 723

F.2d 1164 (5th Cir. 1984) (en banc opinion) (per curiam)). A statute is overbroad in

violation of the First Amendment guarantee of free speech if in addition to

proscribing activity that may be constitutionally forbidden, it sweeps within its

                                               12
coverage a substantial amount of expressive activity that is protected by the First

Amendment.13 Morehead v. State, 807 S.W.2d 577, 580 (Tex. Crim. App. 1991). The

statute’s oppressive affect cannot be minor—it 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.’” State v. Johnson, 475

S.W.3d 860, 865 (Tex. Crim. App. 2015) (footnotes and citations omitted).

      B. The vagueness of “harass, annoy, alarm, abuse, torment, or
         embarrass” in light of the statute’s overbreadth

      The    criminalization    of   “annoying”     behavior—without       any   objective

measurement or standard—has been repeatedly held unconstitutionally vague:

      What renders a statute vague is not the possibility that it will sometimes
      be difficult to determine whether the incriminating fact it establishes has
      been proved; but rather the indeterminacy of precisely what that fact is.
      Thus, we have struck down statutes that tied criminal culpability to
      whether the defendant’s conduct was “annoying” or “indecent”—wholly

      13
          A First Amendment overbreadth challenge operates differently than other
facial constitutional challenges. Generally, a facial challenge to the constitutionality of
a statute must fail if it does not show that the statute, by its terms, always operates
unconstitutionally. Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex. Crim. App.
2006). And as a general principle, a defendant does not have standing to challenge a
statute on the ground that it may be unconstitutionally applied to the conduct of
others. State v. Johnson, 475 S.W.3d 860, 865 (Tex. Crim. App. 2015) (citing Cty. Court
of Ulster, N.Y. v. Allen, 442 U.S. 140, 155, 99 S. Ct. 2213, 2223 (1979); and Broadrick v.
Oklahoma, 413 U.S. 601, 610, 93 S. Ct. 2908, 2914 (1973)). But the First
Amendment’s overbreadth doctrine allows a court to declare a law unconstitutional
on its face “even if it may have some legitimate application and even if the parties
before the court were not engaged in activity protected by the First Amendment.” Id.
at 864–65 (citing United States v. Stevens, 559 U.S. 460, 473, 130 S. Ct. 1577, 1587
(2010); and Sabri v. United States, 541 U.S. 600, 609–10, 124 S. Ct. 1941, 1948–49
(2004)).


                                            13
       subjective judgments without statutory definitions, narrowing context, or
       settled legal meanings.

United States v. Williams, 553 U.S. 285, 306, 128 S. Ct. 1830, 1846 (2008) (citing Coates v.

Cincinnati, 402 U.S. 611, 614, 91 S. Ct. 1686, 1688 (1971); and Reno v. ACLU, 521 U.S.

844, 870-71, n.35, 117 S. Ct. 2329, 2343–44, n.35 (1997)).

       Both the Fifth Circuit and the court of criminal appeals have held that prior

versions of section 42.07 were unconstitutionally vague because of the words used to

describe the offensive behavior—“harass, annoy, alarm, abuse, torment, or

embarrass.” Kramer, 712 F.2d at 176–78; Long, 931 S.W.2d at 297; May, 765 S.W.2d at

440.    This court previously held that the 2001 version of the electronic-

communications subsection was unconstitutionally vague for similar reasons. Karenev,

258 S.W.3d at 217.

       In 1983, the Fifth Circuit addressed the pre-1983 harassment statute’s

provision that a person committed an offense by intentionally communicating by

phone or in writing in a way that “intentionally, knowingly, or recklessly annoys or

alarms the recipient.” Kramer, 712 F.2d at 176; see Act of June 14, 1973, 63rd Leg.,

R.S., ch. 399, 1973 Tex. Gen. Laws 956–57 (amended 1983) (current version at Tex.

Penal Code Ann. § 42.07(a)). The Fifth Circuit held that the terms “annoy” and

“alarm” were inherently vague. Kramer, 712 F.2d at 178 (relying in part on Coates, 402

U.S. at 614, 91 S. Ct. at 1688, which struck down an Ohio statute’s use of the term

“annoy” and explained, “Conduct that annoys some people does not annoy others”).


                                            14
The Fifth Circuit placed even more importance on the fact that Texas courts had

“refused to construe the statute to indicate whose sensibilities must be offended.” Id.

The court held that the statute was unconstitutionally vague, and the court of criminal

appeals adopted this holding in May. 765 S.W.2d at 439–40 (“It is axiomatic that

vague laws offend the Federal Constitution by allowing arbitrary and discriminatory

enforcement, by failing to provide fair warning, and by inhibiting the exercise of First

Amendment freedoms.”).

      In response to Kramer, the Texas Legislature amended section 42.07—only to

have the court of criminal appeals again hold it unconstitutionally vague in 1996. See

Long, 931 S.W.2d at 297. The court addressed the constitutionality of part of the 1993

version of the statute in Long, the stalking offense, providing that a person committed

an offense if, “with intent to harass, annoy, alarm, abuse, torment, or embarrass

another,” the person:

             (7)(A) on more than one occasion engages in conduct directed
      specifically toward the other person, including following that person,
      that is reasonably likely to harass, annoy, alarm, abuse, torment, or
      embarrass that person;

             (B) on at least one of those occasions by acts or words threatens
      to inflict bodily injury on that person or to commit an offense against
      that person, a member of that person’s family, or that person’s property;
      and

            (C) on at least one of those occasions engages in the conduct after
      the person toward whom the conduct is specifically directed has
      reported to a law enforcement agency the conduct described by this
      subdivision.


                                          15
Id. at 288 (citing Act of March 19, 1993, 73rd Leg., R.S., ch. 10, 1993 Tex. Gen. Laws

46–47 (amended 1995) (current version at Tex. Penal Code Ann. § 42.07(a)). The

court of criminal appeals explained that this version suffered from the same flaws

denounced in Kramer and May and that the addition of the words “harass,” “abuse,”

“torment,” and “embarrass” did nothing to remedy these flaws. Id. at 289. The court

observed that “all [of] these terms are joined with a disjunctive ‘or,’ and thus do

nothing to limit the vagueness originally generated by ‘annoy’ and ‘alarm.’ Moreover,

the additional terms are themselves susceptible to uncertainties of meaning.” Id.

      The court did not agree with the parties that the legislature included a

“reasonable person” standard by requiring that the behavior be “reasonably likely to

harass, annoy, alarm, abuse, torment, or embarrass that person.” Id. The court

explained that this language provided that the defendant’s behavior should be

measured from the perspective of the complainant—not that of a reasonable person.

Id.

      The court held that former subsection (a)(7)(B)’s threat requirement and

(a)(7)(C)’s report requirement did not save the statute. Id. at 290-94. The purpose of

subsection (a)(7)(B) was “fatally undermined by the threat requirement’s relationship

to the conduct requirement in (a)(7)(A).” Id. at 291. The stalking offense required at

least two instances of conduct, but the acts did not have to be related to each other

and only one had to be a threat to inflict bodily injury or commit an offense against

the complainant, the complainant’s family, or the complainant’s property. Id. at 293–

                                          16
94. And subsection (a)(7)(C) did nothing to clarify the subsection because it did not

require that the defendant know that the complainant reported his alleged harassment.

Id. at 290–91 (“If the defendant is unaware of the report, then it cannot provide the

requisite notice that he has violated the law.”). The court therefore held that the

stalking provision was unconstitutionally vague on its face. Id. at 297.

      The legislature amended section 42.07 again in 2001 and for the first time

added a new subsection governing electronic communications. See Act of June 15,

2001, 77th Leg., R.S., ch. 1222, 2001 Tex. Gen Laws 2795 (amended 2013). The 2001

version (under which Barton has been charged) criminalized sending “repeated

electronic communications in a manner reasonably likely to harass, annoy, alarm,

abuse, torment, embarrass, or offend another.” Id. In 2008, a prior panel of this

court held that this subsection “suffers the same flaws as the old statute: it employs, in

the disjunctive, a series of vague terms that are themselves susceptible to uncertainties

of meaning.” Karenev, 258 S.W.3d at 216. As this court explained, the legislature did

not attempt, in drafting the electronic-communications subsection, to avoid those

problems that were highlighted in Long by tying the offending conduct to “a more

specific mental state than a mere intent to annoy, such as intent to place in fear of

bodily injury, or with a more intense mental state, such as intent to frighten,” and it

did not establish any nexus between a threat requirement and a conduct requirement.

Id. at 216–17 (quoting Long, 931 S.W.2d at 293–94).



                                           17
       On review, the court of criminal appeals did not reach the question of

subsection (a)(7)’s constitutionality but reversed Karenev on forfeiture grounds. See

Karenev, 281 S.W.3d at 428 (holding that the defendant forfeited his argument of facial

unconstitutionality by failing to raise it in the trial court). Although it has been

presented with the opportunity to address a First Amendment constitutional challenge

to the “electronic communications” subsection at least twice since Karenev was

decided, the court of criminal appeals has not yet weighed in. See Ogle v. State, 563

S.W.3d 912, 912 (Tex. Crim. App. 2018) (mem. op.) (Keller, P.J., dissenting to refusal

of pet.), petition for cert. filed, (U.S. Mar. 8, 2019) (No. 18-1182); Ex parte Reece, 517

S.W.3d 108, 110-11 (Tex. Crim. App. 2017) (mem. op.) (Keller, P.J., dissenting to

refusal of pet.).14

       Having held that section 42.07(a)(7) reaches First Amendment speech, we agree

with our analysis in Karenev that the subsection suffers from a fatal flaw of vagueness

because the disjunctive series of the terms “harass, annoy, alarm, abuse, torment,

embarrass, or offend” leaves the electronic-communications subsection open to


        In both cases, Presiding Judge Keller dissented to the denial of review, urging
       14

the court to review the constitutionality of subsection (a)(7) in light of its
“breathtaking” breadth. Reece, 517 S.W.3d at 111. The United States Supreme Court is
currently considering Ogle’s request for certiorari review; the State filed its response
to Ogle’s petition on July 22, 2019. Ogle, No. 18-1182 (2019).




                                           18
various “uncertainties of meaning.” Karenev, 258 S.W.3d at 215 (citing and quoting

Long, 931 S.W.2d at 289). And consistent with Karenev and Long, we conclude that the

term “reasonably likely” does not create a “reasonable person” standard sufficient to

cure the failure of the subsection to specify whose sensitivities were offended. Id.

(discussing Long, 931 S.W.2d at 288–90). As best explained in Long:

      A reasonable person standard, even if present, probably would not, by
      itself, be enough to save (a)(7)(A) from a constitutional challenge. Even
      with an objective standard, vagueness may still inhere in the expansive
      nature of the conduct described. Moreover, even if a reasonable person
      standard clarified the law sufficiently to avoid a vagueness challenge, it
      would run into a serious overbreadth problem. 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. Many legitimate political protests, for example, contain both
      of these elements.

Long, 931 S.W.2d at 297 n.415 (internal citations omitted).

      Section 42.07(a)(7) has the potential to reach a vast array of communications.

At the time that Barton was charged with violating subsection (a)(7), “electronic

communications” was defined as “includ[ing]: a communication initiated by electronic

mail, instant message, network call, or facsimile machine.” Act of June 15, 2001, 77th

Leg., R.S., ch. 1222, 2001 Tex. Gen. Laws 2795 (amended 2013) (emphasis added).


      15
        The staggering breadth of the electronic-communications subsection is one
factor which distinguishes that subsection from the firearm-brandishing subsection of
the disorderly-conduct statute addressed in the court of criminal appeals’ recent
opinion in State v. Ross, 573 S.W.3d 817 (Tex. Crim. App. 2019), in which the court
held that the statute’s use of “the phrase ‘a manner calculated to alarm’ means a
manner that is objectively likely to frighten an ordinary, reasonable person.”


                                           19
The term “includes” is a term of enlargement, not of limitation or exclusion, and we

do not presume that “components not expressed are excluded.” In re Perry, 483

S.W.3d 884, 909 (Tex. Crim. App. 2016). This subsection as written therefore has the

potential to reach any number of electronic communications, as Presiding Judge

Keller has pointed out:

      This provision is not limited to emails, instant messages, or pager calls.
      It also applies, for example, to facebook posts, message-board posts,
      blog posts, blog comments, and newspaper article comments. If a
      person makes two posts or comments on the internet with the intent to
      annoy or alarm another, and those two communications are reasonably
      likely to annoy, alarm, or offend the same person, then a person can be
      subjected to criminal punishment under this provision.

Reece, 517 S.W.3d at 111.16

      It is safe to say that when Long was decided in 1996 and even when Karenev was

decided in 2008, we had only a faint idea of the impact that electronic

communications and the Internet would have on our society as a whole.               See

Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017) (explaining that we are only

now at the beginning of the “Cyber Age” and are still unable to fully grasp and

appreciate the “full dimensions and vast potential [of the Internet] to alter how we

think, express ourselves, and define who we want to be,” and that “[t]he forces and

directions of the Internet are so new, so protean, and so far reaching that courts must

      16
        In fact, this definition of “electronic communication” has recently been
expanded to explicitly include communications initiated through the use of “a cellular
or other type of telephone, a computer, a camera, text message, a social media
platform or application, an Internet website, [and] any other Internet-based
communication tool.” Tex. Penal Code Ann. § 42.07(b)(1)(A).

                                          20
be conscious that what they say today might be obsolete tomorrow”). The Supreme

Court recently identified the Internet, and “social media in particular,” as “the most

important place[]” for the exchange of views among persons. Id. at 1735. Use of the

Internet to communicate is now ubiquitous. See id. (reciting estimates that as of 2017,

seven in ten American adults used at least one social networking service, with

Facebook as the most popular service at the time with 1.79 billion active users).

       Expanding on its past assessment of the Internet’s offering of “relatively

unlimited, low-cost capacity for communication of all kinds,” Reno, 521 U.S. at 868,

117 S. Ct. at 2344, the Supreme Court observed in Packingham how people use social

media to “debate religion and politics with their friends and neighbors or share

vacation photos”; “look for work, advertise for employees, or review tips on

entrepreneurship”; and “petition their elected representatives and otherwise engage

with them in a direct manner.” Packingham, 137 S. Ct. at 1735. Perhaps the best

examples of the political, and often divisive, use of such platforms start with our

governmental leaders. Public reactions to President Donald Trump’s prolific tweeting

run the gamut from amusement, to annoyance, to distress—and all points in between.

See     President      Donald       J.     Trump        (@realDonaldTrump),           Twitter,

https://twitter.com/realDonaldTrump; see also, e.g., Sara Swartzwelder, Note, Taking

Orders from Tweets: Redefining the First Amendment Boundaries of Executive Speech in the Age of

Social Media, 16 First Amend. L. Rev. 538 (2018). Some have viewed his tweets as

political posturing; others have viewed them as declarations of war. See Swartzwelder,

                                              21
16 First Amend. L. Rev. at 538–39 (discussing President Trump’s “little Rocket Man”

tweet regarding North Korea, a North Korean official’s statement that such tweet was

a declaration of war, and the White House’s dismissal of such an interpretation as

“absurd”); see also Alexander Smith and Abigail Williams, White House Rejects N. Korean

Claim     that   Trump    ‘Declared   War,’    NBC      News,     Sept.    25,    2017,

https://www.nbcnews.com/news/north-korea/north-korean-foreign-minister-says-

trump-has-declared-war-n804501.

        Experience has taught us that whether the President’s tweets—or an ex-

spouse’s emails—are annoying or offensive is a highly subjective inquiry, and the view

of whether these communications are innocuous, humorous, annoying, or offensive

will differ greatly from person to person. See Kramer, 712 F.2d at 178; Long, 931

S.W.2d at 297; May, 765 S.W.2d at 439–40; Karenev, 258 S.W.3d at 215. Consequently,

we agree with Barton that the electronic-communications subsection is facially

unconstitutional as vague and overbroad; as such, it is void and unenforceable. See

Karenev, 258 S.W.3d at 218. We therefore sustain Barton’s first and second points.

                                      Conclusion

        Having sustained Barton’s first and second points and held section 42.07(a)(7)

as it existed in 2013 is facially unconstitutional and, thus, void and unenforceable, we

reverse the trial court’s order denying Barton’s application for writ of habeas corpus

and remand this matter to the trial court to enter an order dismissing the prosecution

of charges against Barton on alleged violations of section 42.07(a)(7) of the Texas

                                          22
Penal Code. See Long, 931 S.W.2d at 297 (remanding case to trial court to enter an

order dismissing the prosecution). We do not reach Barton’s third point. Tex. R.

App. P. 47.1.


                                                  /s/ Bonnie Sudderth
                                                  Bonnie Sudderth
                                                  Chief Justice

Publish

Delivered: October 3, 2019




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