                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-05-425-CR


NIKOLAI IVANOV KARENEV                                            APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

                                   ------------

      FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY

                                   ------------

                                  OPINION

                                   ------------

      A jury convicted Appellant Nikolai Ivanov Karenev on one count of

harassment. The trial court sentenced him to 120 days’ confinement in Denton

County Jail, probated for eighteen months, and a $500 fine.        On appeal,

Appellant challenges the constitutionality of section 42.07(a)(7) of the Texas

Penal Code, the legal sufficiency of the evidence, and the jury charge. Because
we hold that section 42.07(a)(7) is unconstitutionally vague, we reverse the

trial court’s judgment and render judgment of acquittal.

                             F ACTUAL B ACKGROUND

      Attorney Elena Karenev filed for divorce from her husband, Appellant, in

October 2004, and Appellant moved out of their residence in December 2004.

Elena testified at Appellant’s trial that Appellant had left telephone messages

after he moved out and had sent her e-mail messages in March 2005. In March

2005, Elena reported the emails to the police. Based on their investigation, the

police arrested Appellant, and he was charged by information in April 2005.

An amended information was filed in the trial court in October 2005. The

amended information charged one count of harassment based on the telephone

messages and one count of harassment based on Appellant’s “electronic

communications” to Elena. Count two elaborates the charge—“to wit: sending

harassing and/or threatening e-mail to Elena with the intent to harass, annoy,

alarm, abuse, torment, or embarrass [her.]”

      At trial, the State offered five email messages sent between March 3 and

March 29, 2005, all written in Bulgarian.      The prosecution relied without

objection on translations of the messages provided by Stefanova Helstrom, a

woman who was not a certified translator and who was an acquaintance of

Elena. Helstrom testified without objection that the telephone calls and the

                                       2
emails were harassment. Appellant countered Helstrom’s translations with the

testimony of Tatiana Vassileva Gilbard, a Bulgarian translator. Gilbard disagreed

with Helstrom’s interpretation of some of the language in the emails. The first

email is dated March 23, 2005, and Helstrom’s translation provides,

      Elena,

      I pray for you every day and I light up candles in the church.
      I hope that it helps you.

      Nick

Gilbard did not voice any disagreement with this translation.

      The second email is dated March 26, 2005.          Helstrom’s translation

provides,

      Elena Petkova,

      If you ask me there is no purpose to change your passwords...
      Unless you change them every hour it is totally useless.

      I thought you might want to know...

      Rest in peace!

      Nick Karenev

      Elena testified that Petkova was her maiden name and that she used it as

well as Karenev and Kareneva. Appellant testified without contradiction that

he had emailed Elena about the passwords because she had called him and

asked if she needed to change her password. He told her that she did not, and

                                       3
she asked him to put it in writing, so he sent the email. He testified that until

March 15, they communicated regularly by email. He also testified that Elena

asked him questions about the computer system at her office because he was

the administrator and had set up the system.       Elena did not contradict his

explanation.

      Helstrom translated the final line in the March 26 email as “Rest in

peace.” She testified that the line was meant as irony. Gilbard testified that

the phrase in Bulgarian was “Haide ostani si s zdrave.” She explained that in

Bulgarian, “zdrave” means “health.”     Literally translated, the phrase means

“remain in good health.” Gilbard testified that the phrase did not mean “rest

in peace.”     We note that the Bulgarian toast, “Na zdrave,” means “to your

health.” 1 The Bulgarian word for “peace” is “mir,” not “zdrave.” 2 “Zdrave”

means “health.” 3

      The remaining three emails appear to be dated March 26, March 28, and

March 29, 2005. They are longer and appear to reveal anger. In those emails,

as translated, Appellant predicted Elena’s future: he would raise their child,


      1
      … SA English-Bulgarian Dictionary, http://sa.dir.bg/ (last visited Mar. 28,
2008).
      2
       … B ULGARIAN-ENGLISH, E NGLISH-B ULGARIAN D ICTIONARY 74 (Ivan Tchomakov
ed., Hippocrene Books 2006).
      3
          … Id. at 49.

                                       4
Elena’s mother would be paralyzed, and Elena would be in either a mental

hospital or prison.   He called her “not even a regular slut and whore, . . .

something much scarier,” “a pathological li[ar], a dirty whore, a filthy thief, a

rotten user, a sick nymphomaniac, a mental case, and a devil’s work.” He told

her, “It is about time to pay for all of your filthy deeds which you have

committed during your pathetic life!”

      At trial, Appellant explained that while in Bulgaria, he had run into

fortunetellers that Elena had relied on and that they had asked him to relay the

message regarding her future. He testified that in the email he was doing as

they had requested.

      The emails concerned the divorce, and, at least on occasion, were

responses to emails sent by Elena. In the emails, Appellant urged her to reach

an agreement with him about the terms of the divorce to prevent their entire

estate going to the attorneys.

            C ONSTITUTIONALITY OF P ENAL C ODE S ECTION 42.07(a)(7)

      In his second point, Appellant contends that section 42.07(a)(7) of the

Texas Penal Code is unconstitutionally vague so that a person of ordinary

circumstances cannot tell what is prohibited and what is not. This court has

previously explained,




                                        5
              There are two types of challenges to the constitutionality of
      a statute: the statute is unconstitutional as applied to the
      defendant, or the statute is unconstitutional on its face. The
      constitutionality of a statute as applied must be raised in the trial
      court in order to preserve error. Appellant was not required,
      however, to raise in the trial court a constitutional challenge that
      the statute is facially invalid, because a defendant may raise a
      constitutional challenge to the facial validity of a statute for the
      first time on appeal.

            This rule is limited to challenges to the constitutionality of the
      statute under which a defendant was actually convicted. The
      rationale for the Rabb exception to the general rule that failure to
      object at trial waives any right to complain is because if the statute
      giving rise to a prosecution is unconstitutional, it is void from its
      inception, is no law, confers no rights, bestows no power on
      anyone, and justifies no act performed under it. Requiring the
      defendant to preserve such a challenge in the court below on pain
      of waiver could result in a criminal conviction based upon an
      unconstitutional statute. Because a statute criminalizing the
      defendant's conduct is necessary to the jurisdiction of the
      convicting court, the Rabb rule is properly applied when the
      defendant challenges the constitutionality of the specific statute he
      is charged with violating.4

      Appellant cites to no place in the record where he challenged the

constitutionality of section 42.07(a)(7) before raising the issue on appeal, and

we have found none.         We therefore address only the issue of facial

constitutionality of the statute.




      4
      … Barnett v. State, 201 S.W.3d 231, 232-33 (Tex. App.—Fort Worth
2006, no pet.) (citations omitted).

                                         6
      Because he relies on the standard discussed in Kramer v. Price, 5 which

deals with the interplay of the vagueness doctrine and the First Amendment

guarantees, and on Article I, Section 8 of the Texas Constitution,6 we construe

Appellant’s vagueness argument as including a complaint that the statute

offends the First Amendment protection of free speech. The State argues that

the First Amendment is not implicated in this case because harassment is not

protected speech contemplated by the First Amendment. The problem with the

State’s argument is that it is the challenged statute itself that defines

harassment. Unless the harassment statute is sufficiently clear to withstand

constitutional scrutiny, no unlawful harassment exists that would be excluded

from First Amendment protection.

      As the Texas Court of Criminal Appeals has provided, “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.” 7 Additionally, in Long v. State,8


      5
      … 712 F.2d 174, 176-77 (5th Cir.), vacated on reh’g, 716 F.2d 284
(1983), trial court aff’d after statute repealed, 723 F.2d 1164 (1984).
      6
          … T EX. C ONST. art. I, § 8.
      7
      … May v. State, 765 S.W.2d 438, 439 (Tex. Crim. App. 1989) (citations
omitted).
      8
          … 931 S.W.2d 285 (Tex. Crim. App. 1996).

                                         7
a case in which the Texas Court of Criminal Appeals struck down the stalking

statute, the court had this to say:

      It is well-established that criminal laws must be sufficiently clear in
      at least three respects. First, a person of ordinary intelligence must
      be given a reasonable opportunity to know what is prohibited.
      Second, the law must establish determinate guidelines for law
      enforcement.       Finally, where First Amendment freedoms are
      implicated, the law must be sufficiently definite to avoid chilling
      protected expression. “When a statute is capable of reaching First
      Amendment freedoms, the doctrine of vagueness ‘demands a
      greater degree of specificity than in other contexts.’” Greater
      specificity is required to preserve adequately the right of free
      expression because “[u]ncertain meanings inevitably lead citizens
      to steer far wider of the unlawful zone than if the boundaries of the
      forbidden areas were clearly marked.”            Moreover, when a
      vagueness challenge involves First Amendment considerations, a
      criminal law may be held facially invalid even though it may not be
      unconstitutional as applied to the defendant's conduct.9

      The Fifth Circuit discussed the vagueness doctrine in Kramer, the case in

which it struck down the pre-1983 version to the current harassment statute:

      Although the [vagueness] doctrine focuses both on actual notice to
      citizens and arbitrary enforcement, we have recognized recently
      that the more important aspect of the vagueness doctrine “is not
      actual notice, but the other principal element of the doctrine—the
      requirement that a legislature establish minimal guidelines to govern
      law enforcement.” Where the legislature fails to provide such
      minimal guidelines, a criminal statute may permit “a standardless
      sweep [that] allows policemen, prosecutors, and juries to pursue
      their personal predilections.” 10



      9
          … Id. at 287 (citations omitted) (alteration in original).
      10
           … Kramer, 712 F.2d at 176-77 (citations omitted).

                                           8
“When a statute is capable of reaching First Amendment freedoms,” the Kramer

court continued, “the doctrine of vagueness ‘demands a greater degree of

specificity than in other contexts.’” 11

      Appellant challenges the constitutionality of section 42.07(a)(7) of the

Texas Penal Code, which provides,

       (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.12

      In Long, the Texas Court of Criminal Appeals examined the Fifth Circuit’s

analysis of the pre-1983 harassment statute in Kramer:

            In Kramer, the Fifth Circuit addressed the constitutionality of
      Texas' pre-1983 harassment statute.         The pre-1983 statute
      provided in part:

               (a) A person commits an offense if he intentionally:

               (1) communicates by telephone or in writing in vulgar,
               profane, obscene, or indecent language or in a coarse
               and offensive manner and by this action intentionally,
               knowingly, or recklessly annoys or alarms the
               recipient[.]



      11
           … Id. at 177 (citations omitted).
      12
           … T EX. P ENAL C ODE A NN. § 42.07(a)(7) (Vernon 2003).

                                           9
      While the court declined to address the question of overbreadth, it
      nevertheless indicated that First Amendment considerations were
      intertwined with the vagueness issue. Relying upon Coates v.
      Cincinnati, the Fifth Circuit held that the words “annoy” and
      “alarm” were inherently vague and that Texas courts had not
      construed the terms to lessen their vagueness. The Fifth Circuit
      also criticized the statute for failing to specify whose sensitivities
      were offended. The court further explained that a statute's
      vagueness is not lessened by making the conduct depend upon
      each complainant's sensitivity. Finally, the court held that the
      intent requirement did not save the statute because the underlying
      conduct was still vague. Consequently, the Fifth Circuit held the
      statute to be facially unconstitutional due to vagueness. We
      subsequently endorsed Kramer in holding the pre-1983 harassment
      statute to be unconstitutional. 13

      The May court also analyzed the harassment statute as it existed when

the Fifth Circuit held it unconstitutionally vague and held “that the inherent

vagueness of the statute as it then existed, in attempting to define what

annoys and alarms people, and its failure to specify whose sensitivities are

relevant, causes it to be unconstitutionally vague.” 14

       In analyzing the impact of the Kramer decision on the 1993 Texas

stalking statute, which tracks verbatim subsection (a) of the Texas harassment

statute, the Long court opined,

      If (a)(7)(A) is viewed in isolation, it appears to suffer the same

      13
           … Long, 931 S.W.2d at 287-88 (citations omitted).
      14
           … May, 765 S.W.2d at 440 (emphasis added).

                                       10
      flaws denounced by Kramer. The words “annoy” and “alarm”
      remain in the statute although they are now joined by the words
      “harass,” “abuse,” “torment,” and “embarrass.” But, all 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.15

      The Long court also considered whether the term “reasonably likely”

created a “reasonable person” standard and thereby cured the Kramer court’s

criticism of the statute for failing to specify whose sensitivities were offended

and reiterated the Kramer court’s caution that “a statute's vagueness is not

lessened by making the conduct depend upon each complainant's sensitivity.” 16

The Long court concluded,

      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.17

      The      Long   court   ultimately   held    the   1993   stalking   provision


      15
           … Long, 931 S.W.2d at 289 (citations omitted).
      16
           … Id. at 288, 289-290.
      17
           … Id. at 297 n.4 (citations omitted).

                                           11
unconstitutionally vague on its face.18

      As the State points out, the harassment statute has since been amended

to correct some of the deficiencies recognized by the Long court.19 Section

42.07 provides in sections (a)(1) through (6),

            (a) A person commits an offense if, with intent to harass,
      annoy, alarm, abuse, torment, or embarrass another, he:

            (1) initiates communication by telephone, in writing, or by
      electronic communication and in the course of the communication
      makes a comment, request, suggestion, or proposal that is
      obscene;

            (2) threatens, by telephone, in writing, or by electronic
      communication, in a manner reasonably likely to alarm the person
      receiving the threat, to inflict bodily injury on the person or to
      commit a felony against the person, a member of his family or
      household, or his property;

            (3) conveys, in a manner reasonably likely to alarm the
      person receiving the report, a false report, which is known by the
      conveyor to be false, that another person has suffered death or
      serious bodily injury;

           (4) causes the telephone of another to ring repeatedly or
      makes repeated telephone communications anonymously or in a
      manner reasonably likely to harass, annoy, alarm, abuse, torment,
      embarrass, or offend another;

               (5) makes a telephone call and intentionally fails to hang up



      18
           … Id. at 297.
      19
     … Id. at 288; DeWillis v. State, 951 S.W.2d 212, 215 (Tex.
App.—Houston [14th Dist.] 1997, no writ).

                                         12
      or disengage the connection;

            (6) knowingly permits a telephone under the person's control
      to be used by another to commit an offense under this section.20

      The legislature has cured most of the deficiencies in the statute that was

held to be infirm. Section (a)(7), however, exhibits the same infirmities as the

old statute that was held unconstitutional. Section (a)(7) provides,

      (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.21

This provision 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.

      The Long court discussed ways the legislature could correct the flaws in

the old statute by comparing the Texas statute to those of other states whose

statutes had survived constitutional challenge:

      All of the statutes described above contain additional limiting
      elements not found in the Texas criminal statute. Many limit the
      vagueness of the conduct described by linking it to more specific
      conduct through a continuity of purpose requirement. Others tie



      20
           … T EX. P ENAL C ODE A NN. § 42.07 (Vernon 2003).
      21
           … Id. § 42.07(a)(7).

                                        13
the conduct together with 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. In
addition to creating greater specificity, these kinds of limiting
elements help to avoid a vagueness problem by taking the First
Amendment out of the picture. Conduct which alone would
constitute protected activities may be actionable if it is part of a
common plan that includes activity that is clearly unprotected.
And, while conduct does not lose First Amendment protection
merely because the actor intends to annoy the recipient, such
conduct is much less likely to enjoy protection where the actor
intends to “frighten” the recipient, and such conduct is unlikely to
enjoy any protection where the actor intends to place the recipient
in fear of death or bodily injury. If the First Amendment can be
removed from the arena, a stalking statute can be evaluated under
more deferential due process standards, and is thus more likely to
survive scrutiny.

       The threat requirement in the present statute, however, does
not successfully remove the First Amendment from the purview of
the offense. In the absence of any nexus between the threat
requirement and the conduct requirement, there is a real likelihood
that the statute could chill the exercise of protected First
Amendment expression. If the threat is the first predicate act, then
any future conduct that is annoying (or harassing, alarming, etc.)
could trigger the application of the statute—so long as both
predicate acts were directed at the same person—even though the
second predicate act consists entirely of protected First
Amendment activity. This situation in essence holds protected
activity hostage once a person engages in one proscribed act that
is not protected. For example, a political protester who crosses the
line and makes a threat might find himself forever barred from
engaging in peaceful, legitimate expression for fear of subjecting
himself to punishment for stalking. The legislature may legitimately
punish the threat, but it should not be permitted to hold someone's
First Amendment rights forever hostage after he makes such a
threat.22


22
     … Long, 931 S.W.2d at 293-94 (footnotes omitted).

                                 14
      While the legislature did correct the specific defects the Texas Court of

Criminal Appeals addressed in Long, when the legislature sought to modernize

the statute by including electronic communications, it used the language, and

consequently repeated the infirmities, of the old statute.     The new section

42.07(a)(7) corrected the Kramer/May defects, but did not adequately correct

the deficiencies so as to bring section 42.07(a)(7) into compliance with

constitutional mandates.

      Thus, in accordance with the Kramer court’s analysis and that of the Long

court, we hold that the portions of the harassment statute making it an offense

to send electronic communications that annoy or alarm are unconstitutionally

vague.      Additionally, because the statute still does not establish a clear

standard for whose sensibilities must be offended, it is unconstitutionally vague

in that the standard of conduct it specifies is dependent on each complainant's

sensitivity.23 Also, the intent to “harass, annoy, alarm, abuse, torment, or

embarrass” set out in section 42.07(a) still “do[es] nothing to limit the

vagueness originally generated by ‘annoy’ and ‘alarm,’” 24 and the additional

terms are themselves still “susceptible to uncertainties of meaning.” 25


      23
           … See Kramer, 712 F.2d at 177.
      24
           … See Long, 931 S.W.2d at 289.
      25
           … See id.

                                       15
      We also note that although the statute requires “repeated” electronic

communications, it does not define the term repeated, nor does it indicate the

requisite frequency of the repeated communications.          The Random House

Webster’s Unabridged Dictionary defines repeated as “done, made, or said

again and again.” 26 Again and again indicates at least three acts. Does this

mean that if a person sends three annoying emails over a five-year period, the

person is guilty of the offense of harassment? Can we tell from the statute?

The jury charge in this case does nothing to clarify the term because the

application paragraph required that the jury find that Appellant sent email, not

repeated email, and nowhere in the charge is the term repeated defined.

      For all of these reasons, we hold that the statute is unconstitutionally

vague. An unconstitutionally vague statute is void. As the Texas Court of

Criminal Appeals instructs us,

             Under our system of government, the legislature has the
      power to pass any and all laws which to it may seem proper, so
      long as same violate no provisions of our State or Federal
      Constitutions. A law must be sufficiently definite that its terms
      and provisions may be known, understood, and applied. An Act of
      the legislature which violates either of said Constitutions, or an Act
      that is so vague, indefinite, and uncertain as to be incapable of
      being understood, is void and unenforceable. A void law affords no




      26
           … R ANDOM H OUSE W EBSTER’S U NABRIDGED D ICTIONARY 1633 (2d ed. 1999).

                                         16
      basis for a criminal prosecution.27

Or, more vividly,

      Ex parte Halsted held that an act of the Legislature which violates
      either of said constitutions is void and unenforceable. And Ex parte
      Bockhorn held an unconstitutional statute is void from its inception,
      citing, inter alia, Cooley's work on Constitution Limitations, which
      used the language “when a statute is adjudged to be
      unconstitutional, it is as if it had never been passed. Rights cannot
      be built up under it.” Indicating that an unconstitutional statute is
      stillborn, Bockhorn quoted with approval from Boales v. Ferguson
      to the effect[,] “The Court did not annul the statute for it was
      already lifeless. It had been fatally smitten by the Constitution at
      its birth.” Bockhorn also quoted from Seneca Min. Co. v. Secretary
      of State that an unconstitutional statute “is of no more force or
      validity than a piece of blank paper, and is utterly void.” 28

      Because we hold that section 42.07(a)(7) is unconstitutionally vague, we

also hold that it is void. Accordingly, we sustain Appellant’s second point and

do not reach his remaining points.29 Having sustained Appellant’s second point,

we reverse the trial court’s judgment and render judgment of acquittal.30




                                                 LEE ANN DAUPHINOT
                                                 JUSTICE




      27
           … Ex parte Halsted, 147 Tex. Crim. 453, 182 S.W.2d 479, 482 (1944).
      28
         … Reyes v. State, 753 S.W.2d 382, 383 (Tex. Crim. App. 1988)
(citations omitted).
      29
           … See T EX. R. A PP. P. 47.1.
      30
        … See Shannon v. State, 129 S.W.3d 670, 673 (Tex. App.—Houston
[1st Dist.] 2004, pet. ref’d).

                                           17
PANEL B:   DAUPHINOT, GARDNER, and MCCOY, JJ.

MCCOY, J. concurs without opinion.

PUBLISH

DELIVERED: April 3, 2008




                                     18
