Opinion filed November 30, 2016




                                      In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-16-00196-CR
                                    __________

                   EX PARTE KELCEY KENT REECE


                On Appeal from the County Court at Law No. 2
                           Midland County, Texas
                     Trial Court Cause No. CR 151,104


                     MEMORANDUM OPINION
      Kelcey Kent Reece is charged with committing the offense of harassment by
sending repeated electronic communications to Stephanie Reece in a manner
reasonably likely to harass, annoy, alarm, abuse, torment, and embarrass her with
the intent to harass, annoy, alarm, abuse, torment, and embarrass her. See TEX.
PENAL CODE ANN. § 42.07(a)(7) (West Supp. 2016). Appellant filed an application
for a pretrial writ of habeas corpus challenging the constitutionality of
Section 42.07(a)(7). The trial court denied Appellant’s application for writ of habeas
corpus without conducting a hearing. In two issues on appeal, Appellant argues that
(1) the statute is unconstitutionally vague and (2) the statute is overbroad and
suppresses protected speech. We affirm.
                                  Background Facts
      Appellant is charged by information and complaint under Section 42.07(a)(7),
which provides:
         (a) A person commits an offense if, with intent to harass, annoy,
      alarm, abuse, torment, or embarrass another, the person:

      ....
                  (7) sends repeated electronic communications in a
             manner reasonably likely to harass, annoy, alarm, abuse,
             torment, embarrass, or offend another.
PENAL § 42.07(a)(7). Appellant filed a pretrial application for writ of habeas corpus
in which he argued that he was illegally restrained of his liberty because
Section 42.07(a)(7) is unconstitutional on its face. Specifically, Appellant asserts
that Section 42.07(a)(7) is vague and overbroad and violates the Free Speech Clause
of the First Amendment to the United States Constitution because it prohibits
conduct or expressive activity that is expressly permitted by the First Amendment.
Appellant appeals the trial court’s order denying his application.
                                        Analysis
      A defendant may file a pretrial application for writ of habeas corpus in order
to raise a facial challenge to the constitutionality of the statute under which the
defendant is charged. Ex parte Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App.
2014). Whether a statute is facially unconstitutional is a question of law subject to
de novo review. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). An
argument that a penal statute is unconstitutional on its face is based solely on the text
of the statute and the charging instrument, and constitutes a claim that “the statute,
by its terms, always operates unconstitutionally.” Lebo v. State, 474 S.W.3d 402,
405 (Tex. App.—San Antonio 2015, pet. ref’d) (quoting Scott v. State, 322 S.W.3d
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662, 665 n.1 (Tex. Crim. App. 2010); Gillenwaters v. State, 205 S.W.3d 534, 536
n.2 (Tex. Crim. App. 2006)).
      We note at the outset that, in Lebo, the San Antonio Court of Appeals recently
addressed overbreadth and vagueness challenges to Section 42.07(a)(7). 474 S.W.3d
at 405–06.      In reliance upon Scott, the court in Lebo concluded that
Section 42.07(a)(7) is neither overbroad or unduly vague in violation of the free-
speech guarantees of the First Amendment. Id. at 407–08; see also Blanchard v.
State, No. 03-16-00014-CR, 2016 WL 3144142 (Tex. App.—Austin June 2, 2016,
pet. ref’d) (mem. op., not designated for publication). For the reasons set forth
below, we agree with the court’s reasoning in Lebo.
      In Scott, the Court of Criminal Appeals considered whether the telephone
harassment provision of Section 42.07 implicates the First Amendment’s free-
speech guarantee in the context of an overbreadth and vagueness challenge. The
relevant portion of Section 42.07 at issue in Scott provides as follow:
            (a) A person commits an offense if, with intent to harass, annoy,
      alarm, abuse, torment, or embarrass another, the person:
      ....
                      (4) . . . makes repeated telephone communications
             . . . in a manner reasonably likely to harass, annoy, alarm,
             abuse, torment, embarrass, or offend another.
PENAL § 42.07(a)(4); see Scott, 322 S.W.3d at 669. The court in Scott held that this
portion of the statute did not implicate the free-speech guarantee of the First
Amendment. 322 S.W.3d at 669. The court noted that the free-speech guarantee of
the First Amendment generally protects the free communication and receipt of ideas,
opinions, and information. Id. at 668 (citing Red Lion Broad. Co. v. FCC, 395 U.S.
367, 390 (1969); Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942)).
However, “[t]he State may lawfully proscribe communicative conduct (i.e., the
communication of ideas, opinions, and information) that invades the substantial

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privacy interests of another in an essentially intolerable manner.” Id. at 668–69
(citing Cohen v. California, 403 U.S. 15, 21 (1971)). The court concluded:
        [I]n 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.
Id. at 670.
        In Lebo, the defendant’s overbreadth and vagueness challenge hinged on
whether Section 42.07(a)(7) proscribed communications that fell within the scope of
protected free speech. 474 S.W.3d at 406. The San Antonio Court of Appeals found
Scott’s free-speech analysis of Section 42.07(a)(4) “equally applicable” to
Section 42.07(a)(7). Id. at 407. The court based this conclusion on the similarity of

the language in subsection (a)(4) to the language of subsection (a)(7) and the fact
that the defendant in Scott was charged with essentially the same manner of
committing harassment as proscribed by subsection (a)(7).1 Id. at 407–08. The court
determined that an actor whose repeated electronic communications run afoul of
subsection (a)(7) (i.e. made with the specific intent to inflict one of the designated
types of emotional distress) “will have no more of an intent to engage in legitimate
communication of ideas, opinions, or information than an actor whose telephone
calls violate subsection (a)(4).” Id.

        1
          Subsection (a)(7) prohibits sending “repeated electronic communications in a manner reasonably
likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.” PENAL § 42.07(a)(7). Scott
addressed the portion of subsection (a)(4) that prohibits making “repeated telephone communications . . .
in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.” Id.
§ 42.07(a)(4); see Scott, 322 S.W.3d at 669.

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        Appellant contends that the holding in Lebo was the result of “incorrect
reasoning.” Appellant asserts that the holding in Scott is inapplicable to subsection
(a)(7) because harassing telephone calls are much different than harassing electronic
communications because the recipient of electronic communications has greater
freedom to ignore them. He also contends that the telephone harassment prohibition
contains “non-communicative” factors that make the result in Scott distinguishable.
        We disagree with Appellant’s interpretation of Scott. The Court of Criminal
Appeals essentially held in Scott that a person does not have a First Amendment
right to engage in telephone communications with the intent to harass, annoy, abuse,
torment, or embarrass another in a manner reasonably likely to harass, annoy, alarm,
abuse, torment, embarrass, or offend another. In Lebo, the San Antonio Court of
Appeals held that this analysis extended to electronic communications made under
the same circumstances. As noted by the court in Lebo:
        As Scott stated with respect to telephone harassment, repeated emails
        made with the specific intent to inflict one of the designated types of
        emotional distress “for its own sake” invade the substantial privacy
        interests of the victim in “an essentially intolerable manner;”[sic] thus,
        they are not the type of legitimate communication that is protected by
        the First Amendment.
Id. at 408 (quoting Scott, 322 S.W.3d at 670). We agree with our sister court’s
determination in Lebo that the electronic communications proscribed by subsection
(a)(7) do not implicate protected speech under the First Amendment.
        As was the case in Lebo, Appellant’s overbreadth and vagueness challenges
hinge on whether Section 42.07(a)(7) proscribes communications that fall within the
scope of protected free speech. Specifically, Appellant contends in his first issue
that Section 42.07(a)(7) is unconstitutionally vague.2                         Ordinarily, a criminal

        2
         Appellant contends that the words “harass, annoy, alarm, abuse, torment, embarrass, or offend”
are vague. He further argues that it is impossible to tell from the statute what conduct is “reasonably likely”
to offend another person.

                                                      5
defendant who challenges a statute as unduly vague must show that it is vague as
applied to the conduct for which he was charged. Parker v. Levy, 417 U.S. 733, 756
(1974); Scott, 322 S.W.3d at 665 n.3; Bynum v. State, 767 S.W.2d 769, 774 (Tex.
Crim. App. 1989). If, however, the challenged statute implicates the free-speech
guarantee of the First Amendment—that is, if the statute is susceptible of application
to speech guaranteed by the First Amendment—the defendant may argue that the
statute is overbroad on its face because its vagueness makes it unclear whether it
regulates a substantial amount of protected speech. United States v. Williams, 553
U.S. 285, 304 (2008); Gooding v. Wilson, 405 U.S. 518, 520–21 (1972); Scott, 322
S.W.3d at 665 n.3. Appellant’s facial challenge to Section 42.07(a)(7) on vagueness
grounds fails because the statute does not regulate communications that fall within
the scope of protected free speech under the First Amendment.3 We overrule
Appellant’s first issue.
       In his second issue, Appellant contends that Section 42.07(a)(7) is overbroad
because it “suppresses protected speech.”4 A statute is impermissibly overbroad if,
in addition to proscribing activities that may be constitutionally prohibited, its
sweeping coverage also proscribes speech or conduct that is protected by the First
Amendment. Bynum, 767 S.W.2d at 772. A statute will not be invalidated for
overbreadth merely because some unconstitutional applications are conceivable.
Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789, 800 (1984). Appellant’s overbreadth claim also fails in light of our
conclusion that Section 42.07(a)(7) does not regulate communications that fall




       3
        We express no opinion with respect to any “as applied” constitutional challenge that Appellant
may subsequently make to Section 42.07(a)(7).
       4
         Appellant contends that the words “repeated” and “manner,” given their ordinary definitions,
render the statute overbroad.

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within the scope of protected free speech under the First Amendment. We overrule
Appellant’s second issue.
                                   This Court’s Ruling
      We affirm the order of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


November 30, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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