        NUMBERS 13-11-00205-CR and 13-11-00218-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

CHRISTOPHER PAUL DURAN,                                                 Appellant,

                                         v.

THE STATE OF TEXAS,                                                       Appellee.


              On appeal from the County Court at Law No. 3
                      of Jefferson County, Texas.


                        MEMORANDUM OPINION
        Before Chief Justice Valdez and Justices Garza and Vela
              Memorandum Opinion by Justice Rose Vela
      In cause number 13-11-00205-CR, a jury convicted appellant, Christopher Paul

Duran, of harassment, a Class B misdemeanor, see TEX. PENAL CODE ANN. § 42.07(a)(7),

(c) (West 2011), and he was placed on community supervision.        In cause number

13-11-00218-CR, a jury convicted appellant of harassment, a Class B misdemeanor.

See id. Following a punishment hearing, appellant was sentenced to sixty days in jail,
and the trial court revoked his community supervision in cause no. 13-11-00205-CR and

sentenced him to sixty days in jail for that offense.                  The sentences are to run

concurrently. By four issues, appellant asserts: (1) section 42.07(a)(7) of the Texas

Penal Code is unconstitutionally vague; (2) the trial court erred in denying his motion to

quash the information; (3) the trial court erred by denying his request for a limiting

instruction; and (4) the trial court erred by revoking his community supervision. We

affirm.1

                                     I. ISSUES RELATED TO
                                   CAUSE NO. 13-11-00218-CR

A. Constitutionality of Section 42.07(a)(7) of the Texas Penal Code

        In issue one, appellant contends a subsection of the Texas harassment statute,

penal code section 42.07(a)(7), is unconstitutionally vague, both as it applied to him and

as applied on its face. Our initial inquiry is whether section 42.07(a)(7) implicates the

free-speech guarantee of the First Amendment "because if the statutory subsection does

implicate the free-speech guarantee, then [appellant], in making his vagueness

challenge, is relieved of the usual requirement of showing that the statutory subsection

was unduly vague as applied to his conduct." Scott v. State, 322 S.W.3d 662, 668 (Tex.

Crim. App. 2010) (emphasis in original).

        Even though Scott involved the constitutionality of a different subsection of the

harassment statute; i.e., section 42.07(a)(4), the analysis in Scott is helpful in the case

before us.     In Scott, the defendant was charged by information with two counts of

misdemeanor harassment. Id. at 665. He filed a motion to quash both informations,

        1
          This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
                                                   2
arguing that "Texas Penal Code § 42.07, the statute under which he was charged, was

unconstitutional on its face[2] because it was both unduly vague and overbroad." Id.

The trial court denied the motion to quash, and the defendant pleaded nolo contendere to

each harassment charge. Id. at 666. However, the court of appeals agreed with the

defendant's arguments, reversed the trial court's judgments, and rendered judgments of

acquittal. Id. at 667 (citing Scott v. State, 298 S.W.3d 264 (Tex. App.—San Antonio

2009)).

        The State appealed to the court of criminal appeals, arguing that the court of

appeals erred in concluding that section 42.07(a)(4) implicated the free-speech

guarantee of the First Amendment to the United States Constitution. Id. at 668. In

resolving this issue, the court of criminal appeals noted that section 42.07(a)(4) provides,

in relevant part: "'A person commits an offense if, with intent to harass, annoy, alarm,

abuse, torment, or embarrass another, he . . . makes repeated telephone

communications . . . in a manner reasonably likely to harass, annoy, alarm, abuse,

torment, embarrass, or offend another.'" Id. at 669. After examining the text of section

42.07(a)(4), the court of criminal appeals concluded:

        First, the text [of section 42.07(a)(4)] requires that the actor have the
        specific intent to harass, annoy, alarm, abuse, torment, or embarrass the
        recipient of the telephone call. That is, the text requires that the actor have
        the intent to inflict harm on the victim in the form of one of the listed types of
        emotional distress. Second, the text requires that the actor make repeated
        telephone calls to the victim; one telephone call will not suffice. Third, the
        text requires that the actor make those telephone calls in a manner
        2
           A party may challenge a statute as unconstitutional "on its face" or "as applied." A claim that a
statute is unconstitutional "on its face" is a claim that the statute, 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 claimant because of his or her particular circumstances. Id. at n.3.

                                                       3
      reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or
      offend an average person. Fourth, the text does not require that the actor
      use spoken words.

             Having examined the text of § 42.07(a)(4), we conclude that it is not
      susceptible of application to communicative conduct that is protected by the
      First Amendment. In other words, the statutory subsection does not
      implicate the free-speech guarantee of the First Amendment. The
      statutory 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. Given that plain text, we
      believe that the conduct to which the statutory subsection is susceptible of
      application will be, in the usual case, essentially noncommunicative, even if
      the conduct includes spoken words. That is to say, 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.
      To the extent that the statutory subsection is susceptible of application to
      communicative conduct, it is susceptible of such application only 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.

             * * *

             Because § 42.07(a)(4) does not implicate the free-speech guarantee
      of the First Amendment, Scott, in making his vagueness challenge to that
      statutory subsection, was required to show that it was unduly vague as
      applied to his own conduct. He has not done that. Therefore, his
      vagueness challenge fails.

Id. at 669–71. The court of criminal appeals reversed the judgments of the court of

appeals and affirmed the judgments of the trial court. Id. at 671.

      1. Whether Section 42.07(a)(7) Implicates the Free-Speech Guarantee of
         the First Amendment

      Section 42.07(a)(7) of the penal code provides: "A person commits an offense if,

with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he: . . . (7)


                                            4
sends repeated electronic communications in a manner reasonably likely to harass,

annoy, alarm, abuse, torment, embarrass, or offend another." TEX. PENAL CODE ANN. §

42.07(a)(7). In comparing section 42.07(a)(4) as quoted by the Scott court with section

42.07(a)(7), we note that the only difference is that (a)(7) involves "electronic
                                                                                                 3
communications" whereas (a)(4) involves "telephone communications."                                   Neither

subsection requires the actor to use spoken words.                       In addition, the text of both

subsections requires the actor to: (1) have the specific intent to harass, annoy, alarm,

abuse, torment, or embarrass the recipient of the communication; i.e., the text of both

subsections requires the actor to have the intent to inflict harm on the victim in the form of

one of the listed types of emotional distress; (2) make repeated communications to the

victim; one communication is not enough; and (3) make the communication in a manner

reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend an

average person.

        Having compared section 42.07(a)(4) to section 42.07(a)(7), we conclude that

(a)(7), like (a)(4), does not implicate the free-speech guarantee of the First Amendment.

Section 42.07(a)(7), by its plain text, is directed only at persons who, with the specific

intent to inflict emotional distress repeatedly use electronic communication to invade

another person's personal privacy and do so in a manner reasonably likely to inflict

emotional distress. Given the plain text of section 42.07(a)(7), the conduct to which the

statutory subsection is susceptible of application will be, in the usual case,


        3
           In Scott v. State, the court of criminal appeals stated: "[T]he text of [section 42.07(a)(4)] suggest
that it covers ordinary voice (and therefore voice mail) communication involving an ordinary telephone,
whereas the text of [section 42.07(a)(7)] suggests that it covers various types of non-telephonic, 'electronic'
communication, e.g., e-mail, instant messages, etc." 322 S.W.3d 662, 668 (Tex. Crim. App. 2010).
                                                       5
noncommunicative. Because section 42.07(a)(7) does not implicate the free-speech

guarantee of the First Amendment, appellant, in making his vagueness challenge to the

statutory subsection was required to show that it was unduly vague as applied to his own

conduct.

      2. Whether Appellant Has Shown Section 42.07(a)(7) Was Unduly Vague As
         Applied to His Conduct

      "A claim that a statute is unconstitutional 'as applied' is a claim that the statute

operates unconstitutionally with respect to the claimant because of his particular

circumstances." Scott, 322 S.W.3d at 665 n.1 (citing Gillenwaters v. State, 205 S.W.3d

534, 536 n.2 (Tex. Crim. App. 2006)). A statute may be challenged as unduly vague "if it

does not: (1) give a person of ordinary intelligence a reasonable opportunity to know

what is prohibited and (2) establish definite guidelines for law enforcement." Id. (citing

Bynum v. State, 767 S.W.2d 769, 773 (Tex. Crim. App. 1989)). "Ordinarily, a criminal

defendant who challenges a statute as unduly vague must show that it is vague as

applied to the conduct for which he was charged." Id. (citing Parker v. Levy, 417 U.S.

733, 756 (1974); Bynum, 767 S.W.2d at 774).

      In the instant case, appellant was charged with harassment based on an allegation

that he repeatedly sent text messages to another person. The information 4 alleged, in

relevant part, that he "unlawfully intentionally and knowingly make repeated telephone

communications, with the intent to harass, annoy, alarm, abuse, torment, and embarrass

LESLIE SMITH, . . . ."



      4
          Appellant complains of the information in cause no. 13-11-00218-CR.

                                                  6
        Section 42.07(a)(7) provides that a person commits the offense of harassment if

the "person . . . with intent to harass, annoy, alarm, abuse, torment, or embarrass

another, . . . sends repeated electronic communications in a manner reasonably likely to

harass, annoy, alarm, abuse, torment, embarrass, or offends another."                        TEX. PENAL

CODE ANN. § 42.07(a)(7). Section 42.07(b)(1) states that "'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: (A) a communication initiated by electronic

mail, instant message, network call, or facsimile machine; . . . ." Id. § 42.07(b)(1)(A).

        In examining the text of section 42.07(a)(7), we note that in order for an actor's

conduct to constitute criminal behavior, the actor must satisfy three requirements. First,

the actor must act with the specific intent to harass, annoy, alarm, abuse, torment, or

embarrass another person.              Second, the actor must send repeated 5 electronic

communications. In other words, even assuming the actor acts with the requisite intent,

the actor, in order to be convicted under section 42.07(a)(7), must send electronic

communications more than one time. See Scott, 322 S.W.3d at 669. Third, the actor

must send the electronic communications in a manner reasonably likely to harass, annoy,




        5
          In Scott, the court of criminal appeals stated: "The term 'repeated' is commonly understood to
mean 'reiterated,' 'recurring,' or 'frequent.'" 322 S.W.3d at 669 n.12. The Scott court believed that the
Legislature intended the phrase "repeated telephone communications" as used in Section 42.07(a)(4) of
the Texas Penal Code to mean "more than one telephone call in close enough proximity to properly be
termed a single episode." The court stated "it is the frequent repetition of harassing telephone calls that
makes them intolerable and justifies their criminal prohibition." Id. That being the case, we see no reason
why the phrase "repeated electronic communications" as used in section 42.07(a)(7) of the Texas Penal
Code should not have the same meaning.

                                                    7
alarm, abuse, torment, embarrass, or offend another person.6 This requirement refers to

the manner of the electronic communications, which the actor sends to the recipient.

Nevertheless, the third requirement is not vague because in order to be convicted under

section 42.07(a)(7), the manner of the electronic communications is restricted to that

which is reasonably likely to be offensive in nature. Thus, we conclude that section

42.07(a)(7) gives a person of ordinary intelligence a reasonable opportunity to know the

prohibited conduct and establishes definite guidelines for law enforcement to follow when

determining whether a person has violated this statute. We hold appellant has not

shown that section 42.07(a)(7) is unduly vague as applied to his conduct.

        3.      Whether Appellant Has Shown                       That     Section      42.07(a)(7)      Is
                Unconstitutional On Its Face

        "A statute may be challenged as unconstitutional 'on its face' . . . ." Scott, 322

S.W.3d at 665 n.1. "A claim that a statute is unconstitutional 'on its face' is a claim that

the statute, by its terms, always operates unconstitutionally." Id. (citing Gillenwaters,

205 S.W.3d at 536 n.2). "A statute may be challenged as overbroad, in violation of the

Free Speech Clause of the First Amendment, if in addition to proscribing activity that may

be constitutionally forbidden, it sweeps within its coverage a substantial amount of

expressive activity that is protected by the First Amendment." Id. (citing Morehead v.

State, 807 S.W.2d 577, 580 (Tex. Crim. App. 1991)).



        6
          The Scott court stated that the terms "harass," "annoy," "alarm," "abuse," "torment," "embarrass,"
and "offend" all have commonly understood definitions that are relevant in this context. "Harass" means
"to annoy persistently," "Annoy" means to "wear on the nerves by persistent petty unpleasantness."
"Alarm" means "to strike with fear." Abuse means "to attack with words." "Torment" means "to cause
severe distress of the mind." "Embarrass" means "to cause to experience a state of self-conscious
distress." "Offend" means "to cause dislike, anger, or vexation." 322 S.W.3d at 669 n.13 (quoting
Webster's Ninth New Collegiate Dictionary 47, 68, 88, 405, 552, 819, and 1245 (1988)).
                                                     8
       In the instant case, appellant has failed to show that section 42.07(a)(7), by its

terms, always operates unconstitutionally. The statute is not vague; rather, it clearly and

narrowly defines when and how an actor's conduct constitutes criminal behavior.

Furthermore, the statute is not overbroad because it criminalizes only those electronic

communications that are sent in a manner reasonably likely to harass, annoy, alarm,

abuse, torment, embarrass, or offend another. The statute does not encompass a

substantial amount of expressive activity that is protected by the First Amendment. We

hold therefore that appellant has failed to show that section 42.07(a)(7) is unconstitutional

on its face. Issue one is overruled.

B. Motion to Quash

       In issue two, appellant contends the trial court erred by denying his motion to

quash the information for reasons of vagueness and lack of specificity.

       1. Applicable Law

       An accused is guaranteed the right to be informed of the nature and cause of the

accusations against him in all criminal actions. U.S. CONST. amend. VI; TEX. CONST. art.

1, § 10; see State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).                 This

constitutional mandate requires that the charging instrument convey adequate notice

from which the accused may prepare his defense. Moff, 154 S.W.3d at 601. The Texas

Code of Criminal Procedure also contains guidelines relating to the sufficiency of an

information. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 21.03 ("Everything should be

stated in an indictment which is necessary to be proved."), art. 21.04 ("The certainty

required in an indictment is such as will enable the accused to plead the judgment that


                                             9
may be given upon it in bar of any prosecution for the same offense.") (West 2009);7 see

also id. § 21.21(7) (stating "[t]hat the offense [alleged in the information] be set forth in

plain and intelligible words[.]").

        "[A] charging instrument which tracks the language of a criminal statute possesses

sufficient specificity to provide a defendant with notice of a charged offense in most

circumstances." State v. Edmond, 933 S.W.2d 120, 128 (Tex. Crim. App. 1996). "A

motion to quash should be granted only where the language concerning the defendant's

conduct is so vague or indefinite as to deny the definite effective notice of the acts he

allegedly committed." DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988).

We review de novo a trial court's ruling on a motion to quash an information. See Moff,

154 S.W.3d at 601 (modifying standard of review for motion to quash indictments to de

novo instead of abuse of discretion).

        2. Analysis

        Appellant filed a pretrial motion to quash the information because it was vague and

lacked specificity. The information, as quoted in our analysis of issue one, tracks the

language of section 42.07(a)(7) and, thus, possesses sufficient specificity to provide

appellant with notice of the charged offense. See Edmond, 933 S.W.2d at 128. The

language pertaining to appellant's conduct is not vague or indefinite. Therefore, it gives

appellant adequate notice of the acts he allegedly committed. See DeVaughn, 749

S.W.2d at 67. Accordingly, we hold the trial court did not err by denying the motion to

quash. Issue two is overruled.

        7
          Articles 21.03 and 21.04 speak in terms of the specificity of an indictment, but "[t]he rules with
respect to allegations in an indictment and the certainty required apply also to an information." TEX. CODE
CRIM. PROC. ANN. art. 21.23 (West 2009).
                                                    10
C. Denial of Request for Limiting Instruction

       In issue three, appellant asserts the trial court erred in failing to include a limiting

instruction in the guilt-innocence charge regarding extraneous text messages, which the

State introduced into evidence.

       1. Background

       During the State's guilt-innocence case-in-chief, the victim, Leslie Smith, testified

appellant sent the text messages to her in September 2009 and that she filed charges

against him that month. The next month, she received additional text messages from

appellant. She took these text messages to the police station. She identified State's

exhibits fifteen through twenty-seven as the text messages she received from appellant in

October 2009.     When the prosecutor offered these exhibits into evidence, defense

counsel objected that they constituted hearsay and that Smith received them after she

had already filed charges against appellant. The trial court sustained the objections.

       After the State rested its guilt-innocence case-in-chief, but prior to defense

counsel's motion for an instructed verdict, the prosecutor re-offered exhibits fifteen

through twenty-seven, and the trial court admitted them into evidence.

       2. Analysis

       "[A] limiting instruction concerning the use of extraneous offense evidence should

be requested, and given, in the guilt-stage jury charge only if the defendant requested a

limiting instruction at the time the evidence was first admitted." Delgado v. State, 235

S.W.3d 244, 251 (Tex. Crim. App. 2007). "Once evidence has been admitted without a

limiting instruction, it is part of the general evidence and may be used for all purposes."


                                             11
Id. In the instant case, defense counsel did not request a limiting instruction at the time

exhibits fifteen through twenty-seven were first admitted. Thus, the trial court had no

obligation to limit the use of that evidence later in the jury charge. Id. (stating that if a

defendant does not request a limiting instruction at the time that evidence is admitted,

"then the trial judge has no obligation to limit the use of that evidence later in the jury

charge"); Prescott v. State, 123 S.W.3d 506, 515–16 (Tex. App.—San Antonio 2003, no

pet.) (defendant who failed to request limiting instruction concerning use of extraneous

offenses "at the moment the evidence [was] admitted" was not entitled to limiting

instruction in jury charge). Therefore, we hold the trial court did not err by failing to

include a limiting instruction in the guilt-innocence charge regarding the extraneous text

messages contained in exhibits fifteen through twenty-seven. Issue three is overruled.

                                 II. ISSUE RELATED TO
                               CAUSE NO. 13-11-00205-CR

D. Revocation of Community Supervision

        In issue four, appellant asserts the trial court erred when, during the punishment

phase in cause no. 13-11-00218-CR, the trial court revoked his community supervision in

cause no. 13-11-00205-CR.

        1. Background

        On October 22, 2009, the State, in cause no. 13-11-00205-CR, filed a motion to

revoke appellant's community supervision. The motion was amended on December 14,

2010.    On March 7, 2011, appellant's punishment hearing began in cause no.

13-11-00218-CR. After the trial court sentenced appellant to sixty days in jail in cause

no. 13-11-00218-CR, the court told appellant, in relevant part:

                                             12
       With reference to cause number [13-11-00205-CR], the case that you were
       on probation for, the Court takes judicial notice of the trial and, as such,
       finds that you were in violation of your probation and will revoke that
       probation, as well, and set your punishment in that case at 60 days in jail.
       These offenses will run concurrently.

       2. Preservation of Error

       "As a prerequisite to presenting a complaint on appeal, a party must have made a

timely and specific request, objection, or motion to the trial court." Grant v. State, 345

S.W.3d 509, 512 (Tex. App.—Waco 2011, pet. ref'd) (citing TEX. R. APP. P. 33.1(a)(1)(A)).

In the instant case, even though the trial court allowed appellant and his defense counsel

to address the court after the court revoked his community supervision in cause no.

13-11-00205-CR, neither made any objection or complaint about the trial court's decision

to revoke community supervision. Therefore, we hold that error, if any, with respect to

the trial court's decision to revoke community supervision is waived. See id. Issue four

is overruled.

                                     III. CONCLUSION

       We affirm the judgments of the trial court.



                                                     ROSE VELA
                                                     Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
23rd day of August, 2012.




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