                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                  No. 07-18-00335-CR


                           EX PARTE NATHAN SANDERS

                      On Appeal from the County Court at Law No. 1
                                 Lubbock County, Texas
             Trial Court No. 2015-484,541, Honorable Mark Hocker, Presiding

                                     April 8, 2019

                           MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and PARKER, JJ.


      Appellant Nathan Sanders was charged by information with harassment, that “with

intent to harass, annoy, alarm, abuse, torment, or embarrass [the complainant]” he sent

“repeated electronic communications to [the complainant] in a manner reasonably likely

to harass, annoy, alarm, abuse, torment, embarrass, or offend another, to-wit: telephone

calls, text messages, social media messages, handwritten letters, and inperson [sic]

communication.”1 Appellant subsequently filed an application for writ of habeas corpus

and motion to quash information, arguing section 42.07(a)(7) of the Texas Penal Code is


      1  TEX. PENAL CODE ANN. § 42.07(a)(7) (West 2018). Documents in the clerk’s
record indicate the complainant was a woman who had dated appellant.
“facially overbroad” in “violation of the First Amendment of the United States Constitution.”

After consideration, the county court at law denied the application for writ of habeas

corpus. Appellant now appeals the trial court’s ruling. We will affirm.


       In his sole issue on appeal, appellant contends Penal Code section 42.07(a)(7)

contravenes the First Amendment because it is overbroad on its face.


                          Standard of Review and Applicable Law


       Appellant challenged the constitutionality of Penal Code section 42.07(a)(7) by

means of a pre-trial application for a writ of habeas corpus pursuant to Code of Criminal

Procedure article 11.09.2       A pretrial writ application may challenge the facial

constitutionality of the statute under which the applicant is prosecuted, but may not be

used to advance an “as applied” challenge. Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim.

App. 2010) (citing Weise v. State, 55 S.W.3d 617, 620-21 (Tex. Crim. App. 2001)). The

determination whether a statute is facially unconstitutional is a question of law subject to

de novo review. Ex parte Ogle, Nos. 03-18-00207-CR, 03-18-00208-CR, 2018 Tex. App.

LEXIS 5955, at *3 (Tex. App.—Austin Aug. 1, 2018, pet. ref’d) (mem. op., not designated

for publication) (citing Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013)).


       Generally, a facial challenge to the constitutionality of a statute can succeed only

when it is shown that the statute is unconstitutional in all of its applications. Wagner v.

State, 539 S.W.3d 298, 310 (Tex. Crim. App. 2018) (citing State v. Johnson, 475 S.W.3d

860, 864 (Tex. Crim. App. 2015)). The First Amendment overbreadth doctrine provides

an exception to this rule. Id. (citation omitted). That exception permits a litigant to


       2   TEX. CODE CRIM. PROC. ANN. art. 11.09 (West 2018).

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succeed in challenging a law that regulates speech if “a ‘substantial number’ of its

applications are unconstitutional, ‘judged in relation to the statute’s plainly legitimate

sweep.’” Id. (citations omitted).   The overbreadth doctrine, therefore, proscribes the

government from “‘banning unprotected speech if a substantial amount of protected

speech is prohibited or chilled in the process.’” Id. (citing Ashcroft v. Free Speech

Coalition, 535 U.S. 234, 255 (2002)). The overbreadth doctrine is to be “employed with

hesitation and only as a last resort.” Id. (citing Ex parte Thompson, 442 S.W.3d 325, 349

(Tex. Crim. App. 2014)).


                                         Analysis


Application of Scott v. State


       As our sister court in El Paso stated in its recent opinion addressing a facial habeas

challenge to the constitutionality of section 42.07(a)(7), we do not write on a clean slate

in our consideration of appellant’s contention. Ex parte Hinojos, No. 08-17-00077-CR,

2018 Tex. App. LEXIS 10530, at *3 (Tex. App.—El Paso Dec. 19, 2018, pet. ref’d) (mem.

op., not designated for publication). A number of Texas courts have addressed the

section’s constitutional validity against overbreadth challenges. See Lebo v. State, 474

S.W.3d 402 (Tex. App.—San Antonio 2015, pet ref’d); Ex parte Ogle, 2018 Tex. App.

LEXIS 5955; Ex parte Reece, No. 11-16-00196-CR, 2016 Tex. App. LEXIS 12649 (Tex.

App.—Eastland Nov. 30, 2016, pet. ref’d) (mem. op., not designated for publication);

Blanchard v. State, No. 03-16-00014-CR, 2016 Tex. App. LEXIS 5793 (Tex. App.—Austin

June 2, 2016, pet. ref’d) (mem. op., not designated for publication). Most often, their




                                             3
analyses of the issue begin with the 2010 opinion of the Court of Criminal Appeals in Scott

v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010).


       In Scott, the court considered the question whether subsection (4) of section

42.07(a)3 implicates the free-speech guarantee of the First Amendment. In its analysis,

the court characterized the subsection’s specific intent provision as requiring “that the

actor have the intent to inflict harm on the victim in the form of one of the listed types of

emotional distress.” Id. at 669. It further found that the subsection, “by its plain text, is

directed only at persons who, with the specific intent to inflict emotional distress,

repeatedly use the telephone to invade another person’s personal privacy and do so in a

manner reasonably likely to inflict emotional distress.” Id. at 669-70. Finally, the court

concluded any communicative conduct to which the subsection might apply “is not

protected by the First Amendment because, under the circumstances presented, that

communicative conduct invades the substantial privacy interests of another (the victim)




       3   Texas Penal Code § 42.07 reads in pertinent part:
                (a)    A person commits an offense if, with intent to harass, annoy,
                alarm, abuse, torment, or embarrass another, the person:
                                                  ***
                   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; or
                                                  ***
                   (7) sends repeated electronic communications in a manner
                   reasonably likely to harass, annoy, alarm, abuse, torment,
                   embarrass, or offend another.

                                              4
in an essentially intolerable manner.”     Id. at 670.4 All courts of appeals who have

addressed the issue hold Scott’s free-speech analysis of subsection (a)(4) applies also

to subsection (a)(7). See, e.g., Lebo, 474 S.W.3d at 407 (“We consider the free-speech

analysis in Scott equally applicable to section 42.07(a)(7)”); Ex parte Ogle, 2018 Tex.

App. LEXIS 5955, at *6-7; Ex parte Reece, 2016 Tex. App. LEXIS 12649, at *5-6;

Blanchard, 2016 Tex. App. LEXIS 5793, at *7.


       Appellant, however, contends Scott does not control the disposition of his appeal.

In support, he first argues Scott’s analysis has been rendered outmoded by decisions of

the United States Supreme Court. He particularly relies on Reed v. Town of Gilbert, 2015

U.S. LEXIS 4061, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015), which, as he notes, was

decided five years after Scott. In Reed, the Court clarified the means of identification of

content-based restrictions on speech, those requiring strict scrutiny when challenged

under the First Amendment. As appellant sees it, Reed’s identification of “more subtle”

content-based distinctions that define “regulated speech by its function or purpose,” 135

S. Ct. at 2227, is applicable directly to section 42.07(a)(7). He contends the statute’s

specific intent requirement of intent to harass, annoy, alarm, abuse, torment, or

embarrass another constitutes a distinction based on a message’s purpose, and the proof

requirement that the communication was reasonably likely to harass, annoy, alarm,

abuse, torment, embarrass, or offend another is a distinction based on its function.

Accordingly, paraphrasing Reed, id, appellant argues “It is a distinction drawn based on



       4 Earlier in its opinion the court cited Cohen v. California, 403 U.S. 15, 21 (1971),
for the proposition, “The State may lawfully proscribe communicative conduct (i.e., the
communication of ideas, opinions, and information) that invades the substantial privacy
interests of another in an essentially intolerable manner.” 322 S.W.3d at 668-69.

                                             5
the message the speaker conveys and wants to convey, and therefore is subject to strict

scrutiny.”


       The Third Court of Appeals in Ogle addressed, and rejected, the same contention.

2018 Tex. App. LEXIS 5955 at *13-14. It noted Ogle had not cited authority applying

Reed’s analysis to government prohibition of “repeated and intentionally harassing

conduct.” Id. at *13. Appellant’s briefing in this appeal similarly lacks such authority.

And, like the court in Ogle, we are not persuaded that Reed requires abandonment of

Scott’s rationale based on the Court’s holding in Cohen. Id. at *14 (citing Cohen, 403

U.S. at 21).


       As others have pointed out, e.g., Ogle, 2018 Tex. App. LEXIS 5955, at * 7, all

subsections of section 42.07(a) require the same specific intent, that “to harass, annoy,

alarm, abuse, torment, or embarrass another.” And while subsection (a)(4) is violated

when the actor “makes” repeated telephone communications and (a)(7) is violated when

the actor “sends” repeated electronic communications, both subsections require for guilt

that the repeated communications occur “in a manner reasonably likely to harass, annoy,

alarm, abuse, torment, embarrass, or offend another.”


       At oral argument in the case now before us, there was discussion regarding free-

speech distinctions that might reasonably be drawn between prohibition of

communications intended to harass or abuse versus those intended merely to annoy or

embarrass.     The dissenting opinion in Scott proposed such distinctions among the

specific intent and “reasonably likely” effect provisions of subsection (a)(4).     After

analysis, the dissent concluded:



                                            6
       Consequently, I would hold that the harassment provision at issue
       implicates the First Amendment with respect to the terms “annoy,” “alarm,”
       “embarrass,” and “offend,” but does not implicate the First Amendment with
       respect to the terms “harass,” “abuse,” and “torment.” The Court contends
       that the entire statute is outside the purview of the First Amendment
       because “in the usual case, people whose conduct violates § 42.07(a)(4)
       will not have an intent to engage in legitimate communication of ideas,
       opinion, or information; they will have only the intent to inflict emotional
       distress for its own sake.” But nothing in the statute limits its application to
       those occasions when the actor’s sole intent is to inflict emotional distress,
       and if the court is implying that situations are rare in which a person has
       more than one intent, I disagree. The mischief this statute can create is
       enormous, as some of the hypotheticals given above illustrate.”

Scott, 322 S.W.3d at 676 (Keller, P.J., dissenting).


       Over the dissent, the Court of Criminal Appeals at least implicitly rejected such

distinctions drawn among the statute’s listed intents and “reasonably likely” effects, and

instead grouped them all together as “listed types of emotional distress.” Id. at 669. Given

Scott’s interpretation of the language appearing in subsection (a)(4), as an intermediate

court we are not at liberty to apply differing free-speech analyses based on differences

among the “types of emotional distress” that are listed by identical language also in

subsection (a)(7).


       Appellant also points to the dissents to the Court of Criminal Appeals’ refusal of

the petitions for review in Ogle and Ex parte Reece. See Ogle v. State, 563 S.W.3d 912

(Tex. Crim. App. 2018); Ex parte Reece, 517 S.W.3d 108 (Tex. Crim. App. 2017). That

fewer than a majority of members of the Court of Criminal Appeals have called for re-




                                              7
examination of one of that court’s opinions, however, does not provide a reason for us to

question its application to the appeal before us.5


       For those reasons we decline appellant’s invitation to depart from the holdings of

other Texas courts of appeals applying Scott’s analysis in rejection of contentions section

42.07(a)(7) is constitutionally overbroad.         In so doing, however, we express our

disagreement with a rationale the State offers in support of the validity of the statute.


Conduct versus Protected Speech


       Citing Ex parte Ingram, 533 S.W.3d 887 (Tex. Crim. App. 2017) the State contends

section 42.07(a)(7) does not constitute a content-based restriction on speech but, like the

solicitation statute addressed in that case, merely criminalizes conduct.           The State

argues, “It is the conduct of sending repeated electronic communications in a harassing

manner that is the gravamen of the offense. Because conduct and not merely speech is

implicated in Section 42.07(a)(7), the statute is a conduct-based regulation that is subject

to a presumption of validity.”


       Ingram addressed contentions subsection (c) of the pre-2015 version of Penal

Code section 33.021, prohibiting online solicitation of a minor, were facially

unconstitutional. 533 S.W.3d at 890. After applying a narrowing construction to language

then contained in the statute, id. at 895-97, the court considered Ingram’s argument the

statute was unconstitutionally overbroad. Id. at 897-900. Rejecting the argument, the

court began by noting that “speech or writing used as an integral part of conduct in


       5 That is particularly true here in view of the reliance on Scott’s analysis in the Court
of Criminal Appeals’ 2018 opinion in Wagner. See Wagner, 539 S.W.3d at 311-12
(rejecting overbreadth challenge to Penal Code section 25.07(a)(2)(A)).

                                               8
violation of a valid criminal statute” is a category of speech unprotected by the First

Amendment. Id. at 897 (citing and quoting United States v. Stevens, 559 U.S. 460, 471

(2010)). The court likewise cited the exemption from First Amendment protection of

speech that constitutes “the commission of a ‘sort[] of inchoate crime[]—[an] act looking

toward the commission of another crime’ that the legislature can validly punish.” Id.

(quoting United States v. Williams, 553 U.S. 285, 300 (2008)). It concluded that the

challenged subsection’s prohibition of the conduct of soliciting a minor to meet with the

intent that the minor engage in illegal sexual activity “created an inchoate offense for the

object offense of sexual assault of a child.” Id. at 898. Referring to its opinion in Ex parte

Lo, 424 S.W.3d at 16, the court described such solicitation statutes as “routinely upheld

as constitutional because offers to engage in illegal transactions such as sexual assault

of a minor are categorically excluded from First Amendment protection.” Id. (citation

omitted). The court quoted another state court’s summary stating, “The common thread

in cases involving First Amendment challenges to luring statutes is that freedom of

speech does not extend to speech used as an integral part of conduct in violation of a

valid criminal statute.” Id. (quoting State v. Backlund, 672 N.W.2d 431, 441 (N.D. 2003)).


       The State refers also to our opinion in Delacruz v. State, No. 07-15-00230-CR,

2017 Tex. App. LEXIS 6018 (Tex. App.—Amarillo June 29, 2017, no pet.) (mem. op., not

designated for publication), which also addressed section 33.021(c), and relied on Ex

parte Lo’s statement that “it is the conduct of requesting a minor to engage in illegal sexual

acts that is the gravamen of the offense.” 2017 Tex. App. LEXIS 6018 at *6 (citing Ex

parte Lo, 424 S.W.3d at 17).




                                              9
       The State does not cite us to authority applying Ingram’s “inchoate offense”

analysis to section 42.07(a)(7) or describing how the communications sent with the intent

and in the manner that section describes are “an integral part of conduct in violation of a

valid criminal statute.” Ingram, 533 S.W.3d at 897; see State v. Doyal, ___ S.W.3d ___,

2019 Tex. Crim. App. LEXIS 161, at *7 (Tex. Crim. App. Feb. 27, 2019) (form of

unprotected speech involved in Ingram is “speech that furthers some other activity that is

a crime”). Nor does the State identify the criminal statute of which it contends such

communications are an integral part. See Doyal, 2019 Tex. Crim. App. LEXIS 161, at *7

(characterizing speech addressed in Ingram as “solicitation to facilitate a sex crime”);

Ingram, 533 S.W.3d at 898 (conduct prohibited by challenged statute “created an

inchoate offense for the object offense of sexual assault of a child”).


       Moreover, the Scott opinion did not characterize the forbidden telephone

communications as conduct rather than speech, nor have any of the opinions finding the

Scott analysis applicable to section 42.07(a)(7) characterized its prohibition of certain

electronic communications as conduct-based regulation. See Lebo, 474 S.W.3d at 406-

07; Ex parte Hinojos, 2018 Tex. App. LEXIS 10530, at *14; Ex parte Ogle, 2018 Tex. App.

LEXIS 5955, at *13-14; Ex parte Reece, 2016 Tex. App. LEXIS 12649, at *6-7; Blanchard,

2016 Tex. App. LEXIS 5793, at *7.


                                        Conclusion


       We are not persuaded the State’s proffered theory based on Ingram is properly

applied to section 42.07(a)(7). Nonetheless, for the reasons expressed we find the

repeated electronic communications the section proscribes, made with the “intent to inflict



                                             10
emotional distress for its own sake,” Scott, 322 S.W.3d at 670, are not protected speech

under the First Amendment because they invade the substantial privacy interests of the

victim “in an essentially intolerable manner.” Id. Accordingly, we overrule appellant’s

contention section 42.07(a)(7) is facially overbroad and affirm the trial court’s denial of

appellant’s application for writ of habeas corpus.



                                                        James T. Campbell
                                                           Justice


Quinn, C.J., concurring in the result.6


Do not publish.




       6Chief Justice Quinn joins in the majority opinion for the reasons stated therein.
However, the reasons expressed by Presiding Judge Keller in her dissent in Scott v.
State, 322 S.W.3d 662 (Tex. Crim. App. 2010), the chipping away at Scott by the majority
in Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014), and the concurrence of P.J.
Keller and Judge Johnson in Wilson sways him to invite the Court of Criminal Appeals to
reconsider the majority opinion in Scott. He too fears, as expressed by P.J. Keller and
Judge Johnson, the potentiality of criminal convictions arising from one’s exercise of First
Amendment rights. This is not to say he welcomes the mid-supper calls from politicians
to vendors but understands that such annoyances are part and parcel of residing in a
country where ideas, innovation, intellect, and their urging remain invaluable.

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