                                                                                            ACCEPTED
                                                                                        04-14-0383-CR
                                                                            FOURTH COURT OF APPEALS
                                                                                 SAN ANTONIO, TEXAS
                                                                                  3/11/2015 7:18:34 PM
                                                                                         KEITH HOTTLE
                                                                                                CLERK

                               NO.   04-14-00383-CR

                                     IN THE                           FILED IN
                                                               4th COURT OF APPEALS
                                COURT OF APPEALS                SAN ANTONIO, TEXAS
                                                               03/11/2015 7:18:34 PM
                                     FOR THE                       KEITH E. HOTTLE
                                                                        Clerk
                    FOURTH SUPREME JUDICIAL DISTRICT

                               SAN ANTONIO, TEXAS

 ****************************************************************

                              SEAN LEBO, APPELLANT

                                        V.

                           THE STATE OF TEXAS, APPELLEE

 *****************************************************************


          ON APPEAL FROM COUNTY COURT AT LAW NUMBER 14

                             OF BEXAR COUNTY, TEXAS

                              CAUSE NUMBER 413956


*******************************************************************

                             BRIEF FOR THE APPELLANT

*******************************************************************

oral argument requested.


                                                   PAT MONTGOMERY
                                                   111 SOLEDAD, SUITE 300
                                                   SAN ANTONIO, TX 78205
                                                   (210) 225-8940 Fax (978)285-4664
                                                   PatMontgomery@Gmail.com
                                                   STATE BAR NO. 14295350
                                                   Appellant's Attorney
                                                                   INDEX

INDEX...............................................................................................................................................i
LIST OF PARTIES............................................................................................................................ii
TABLE OF AUTHORITIES............................................................................................................iii
STATEMENT OF THE CASE..........................................................................................................1
PROCEDURAL HISTORY ..............................................................................................................1
FACTUAL HISTORY.......................................................................................................................1


                                    POINT OF ERROR NUMBER ONE:
                        The Harassment Statute upon which the Defendant was
                        convicted is constitutionally void for vagueness, and for
                        overbreadth, therefore his conviction should be reversed
                        and the case should be remanded with orders to dismiss.
                                    …..........................................................................................…...................4

                                    POINT OF ERROR NUMBER TWO:
                        The Appellant’s trial counsel was constitutionally
                        inadequate and provided ineffective assistance of
                        counsel due to a failure to challenge the Harassment
                        Statute upon which the Defendant was convicted as being
                        constitutionally void for vagueness and overbreadth.
                                   …..........................................................................................…...................4



SUMMARY.....................................................................................................................................10

PRAYER..........................................................................................................................................10

CERTIFICATE OF SERVICE.........................................................................................................10




                                                                         -i-
                                     LIST OF PARTIES

        SEAN LEBO was the trial Defendant below.



        Mr. LEBO is now the Appellant in the instant appeal.      PAT MONTGOMERY now

represents Appellant in the instant appeal.



        KIMBEL WARD and WILLIAM REECE represented the Appellant at trial.



        The State of Texas is the Appellee.   Bexar County District Attorney SUSAN D. REED

represented the State of Texas at the trial court. She appeared by and through her Assistant

District Attorneys JASON GARRAHAN, WILLIAM NICHOLS, and BEN RUTTENBERG.



       The Complainant in this case is JASON LAYMAN.



        District Attorney NICO LAHOOD now represents the Appellee State of Texas in the

instant appeal, by and through the Assistant District Attorneys designated to handle the case.



        Honorable Judge PHIL CHAVARRIA presided over the trial court proceedings.



                                                             PATRICK B. MONTGOMERY
                                                             111 SOLEDAD, SUITE 300
                                                             SAN ANTONIO, TX 78205
                                                             (210) 225-8940 Fax (978)285-4664
                                                             PatMontgomery@Gmail.com
                                                             STATE BAR NO. 14295350

                                                -ii-
                                    TABLE OF AUTHORITIES
                                                 CONSTITUTIONS
First Amendment to the United States Constitution..................................................................5, 6
Sixth Amendment to the United States Constitution.................................................................8, 9
Art. 1, Sec. 8 of the Texas Constitution.........................................................................................5

                                                          STATUTE
Texas Penal Code §42.07..........................................................................................................3, 6

                                                             CASES

Conrad v. State, S.W.3d 424,(Tex. App. 2002).............................................................................9

Ely v. State, 582 S.W.2d 416, (Tex.Crim. App. [Panel Op.] 1979)................................................4

Freeman v. State; 167 S.W.3d 114,(Tex. App. 2005)....................................................................9

Grayned v. Rockford, 408 U.S. 104, (1972)..................................................................................4

Harling v. State, 899 S.W.2d 9, (Tex. App. --San Antonio 1995)................................................9

Hernandez v. State, 943 S.W.2d 930 (Tex. App.---El Paso 1997)................................................9

Karenev v. State, 258 S.W.3d 210 (Tex.App.-Fort Worth 2008)...................................................6

Karenev v. State, 281 S.W.3d 428, (Tex.Crim.App. 2009)........................................................7, 8

Kramer v. Price, 712 F.2d 174, (5th Cir.1983)..........................................................................4, 7

Long v State, 931 S.W.2d 285, (1996)...........................................................................................7

Marin v. State, 851 S.W.2d 275, (Tex.Crim.App. 1993)............................................................7, 8

Michel v. Louisiana, 350 U.S. 91, (1955)......................................................................................8

Papachristou v. City of Jacksonville, 405 U.S. 156, (1972).........................................................4

Rylander v. State, 101 S.W.3d 107, (Tex. Crim. App. 2003);........................................................9

Strickland v. Washington, 466 U.S. 668 (1984).............................................................................8

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999)...........................................................8

                                                              -iii-
                               STATEMENT OF THE CASE


        This is an appeal from a criminal case tried to a jury.   The Appellant was convicted by

unanimous jury verdict of Harassment, a Class B Misdemeanor. Punishment was assessed by the

trial court at six months confinement in the Bexar County Jail.



                               PROCEDURAL HISTORY


        Appellant SEAN LEBO was charged by Information and Complaint filed on April 16,

2013. The Information and Complaint alleged that on or about January 3, 2013, the Appellant

committed the offense of Harassment against the Complainant Jason Laymon, by sending him

multiple electronic mail messages.

        Trial was conducted January 31, 2014. The jury convicted the Appellant as charged. The

case was rescheduled for sentencing.

        Before the sentencing hearing, the Appellant’s trial counsel withdrew from representation

at the Appellant’s request. The Honorable Trial Court appointed the undersigned counsel to

represent the Appellant at the sentencing hearing.

        The Appellant filed various pro se motions and a premature Notice of Appeal during the

time between the jury’s verdict and the sentencing hearing.

        Sentencing was held May 16, 2014. The Appellant was represented by undersigned

counsel. The Court sentenced the Appellant to six months confinement and a one thousand dollar

fine. The Appellant’s request to remain free on bond pending his appeal was granted, subject to

various conditions.

                                              -1-
        One particular condition of the appeal bond involved a lengthy list of parties and places

that the Appellant was prohibited from contacting. While this instant appeal was pending, the

State (Appellee) moved that the trial court amend the conditions of the Appellant’s bond to

include no contact with two additional protected parties.

        Subsequently, the Appellant was charged with contacting those parties. The Appellee

advised the trial court that they intended to call undersigned appointed counsel as a witness in an

effort to show that the Appellant was aware of the modified conditions of bond. Counsel moved

to abate this appeal to conduct a trial court hearing regarding any conflict of interest. The appeal

was abated, and the trial court concluded that counsel was not disqualified from representing the

Appellant due to the possibility that the State might call him as a witness in the new prosecution

against Appellant. Counsel now files this appellate brief for Appellant



                                   FACTUAL HISTORY

        The factual history of the case was presented to the jury through the testimony of two

witnesses called by the state, three witnesses called by the defense, and dozens of exhibits. Most

of the exhibits were emails that were sent by the Appellant to the Complainant. The factual

history will be quite abbreviated herein, due to the constitutional nature of the arguments.

        The trial evidence showed that the Appellant herein believes that many local law

enforcement officers and members of the judiciary, including the Complainant Jason Laymon, are

dishonest and corrupt. The Appellant believes that the Complainant Jason Laymon in particular

has hidden, falsified, and destroyed relevant and pertinent evidence of the Appellant’s actual

innocence regarding prior criminal charges that were brought against the Appellant. Some of

those criminal charges date to 2001, and 2010. The Appellant seeks redress for his grievances.

                                              -2-
        The evidence showed that the Appellant has attempted to provoke investigations into his

allegations of corruption. He has contacted various officials and agencies in an effort to cause the

desired investigations. He has also sent multiple emails to the complainant Jason Laymon, in his

effort to cause Laymon to take actions regarding the Appellant’s myriad allegations, and in a

further effort to cause the Complainant to admit to Complainant’s own alleged past wrongdoing

against the Appellant. The Appellant has threatened lawsuits and criminal charges against the

Complainant, and has been quite impolite in many of his electronic messages to the Complainant.

It is this conduct that forms the basis of the Harassment charge, and of the instant appeal.


                         POINT OF ERROR NUMBER ONE:
                The Harassment Statute upon which the Defendant was
                convicted is constitutionally void for vagueness, and for
                overbreadth, therefore his conviction should be reversed
                and the case should be remanded with orders to dismiss.

        Texas Penal Code §42.07, the Harassment statute, reads in pertinent part that

“(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.

[emphasis added].

       The statute does not define the terms “harass, annoy, alarm, abuse, torment, or embarrass.”

The statute makes those terms disjunctive, not conjunctive, so that any one of the terms alone

might satisfy the statutory element. If a fact finder believed beyond a reasonable doubt that a

person sent two electronic messages (repeated), with the intent to annoy a recipient, and the

messages were reasonably likely to annoy, then the statute is satisfied --- except that the

Constitution is not satisfied, as the Appellant will show.

                                                 -3-
       Due process of law under the United States Constitution and Due Course of Law under the

Texas Constitution require that statutes not be unconstitutionally vague or overbroad.

       There are two ways that a law can be void for vagueness. The first way that a law can be

void for vagueness is when it does not give a person of normal intelligence adequate notice that

his conduct is prohibited by the law. Papachristou v. City of Jacksonville, 405 U.S. 156, 163, 92

S. Ct. 839, 843, 31 L. Ed. 2d 110 (1972).Grayned v. Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294,

2298--2299, 33 L.Ed.2d 222 (1972), Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim. App. [Panel

Op.] 1979). Kramer v. Price, 712 F.2d 174 (5th Cir.1983)

       The second way that a law can be void for vagueness is if it gives too much discretion to

police officers, prosecutors, and jurors to determine what conduct constitutes and offense. Id.

The void for vagueness doctrine was well described in Grayned v. Rockford, 408 U.S. 104

(1972), where the Court stated:

       “It is a basic principle of due process that an enactment is void for vagueness if its

prohibitions are not clearly defined. Vague laws offend several important values. First, because

we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give

the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he

may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if

arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards

for those who apply them. A vague law impermissibly delegates basic policy matters to

policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant

dangers of arbitrary and discriminatory application.”

       In the instant case and statute, the terms harass, annoy, alarm, abuse, torment, and

embarrass are not defined. They may have different meanings to people of different

                                              -4-
temperaments. The word annoy is particularly vague. People may be annoyed by multiple spam

emails received daily. The senders may intend to annoy the recipient, in an effort to provoke a

purchase of software, or some other product. A person may be annoyed at having to use a delete

key, or customize a spam filter. It should not be left up to law enforcement, prosecutors, or juries

to decide without guidance what the word annoy means.

         When any criminal statute encompasses activity which would be otherwise protected by

the U.S. Constitution, a defendant may challenge the provision on grounds that it is overbroad and

therefore unconstitutional. This makes a statute or ordinance unconstitutional if the manner in

which it is written creates an unnecessarily broad sweep, and invades the area of protected

freedoms.

         Overbroadness occurs when a prohibition overlaps on a prescription, that is, when people

need to avoid constitutionally protected behavior, due to a fear of inadvertently committing a

crime.

         Art. 1, Sec. 8 of the Texas Constitution provides "Every person shall be at liberty to

speak, write or publish his opinions on any subject, being responsible for the abuse of that

privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.”

         The First Amendment to the United States Constitution provides that: “Congress shall

make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,

and to petition the Government for a redress of grievances.”

         Citizens should not fear exercising their constitutionally protected right to freedom of

speech under the First Amendment to the Constitution or their right to petition for redress of

grievances due to the possibility of being ensnared in a prosecution based on overbroad laws.

                                               -5-
        In the instant case, even if the Appellant’s intent was to annoy the Complainant, his

conduct was protected by his First Amendment right to freedom of speech, and his right to

petition the Government (the police officer Complainant) for a redress of grievances. His intent

was to invoke religious beliefs in some of the communications. To the extent that the statute

stifles this laudable goal, albeit executed quite impolitely, the statute is void for overbreadth.

        By further example, with the instant statute, sending two (repeated) emails to someone,

promising to sue them (reasonably likely to annoy), with the intent to alarm them about their legal

liability, would be a violation of the statute. It would also be a protected freedom under the

Constitution. Attempting to annoy another from religious complacency, and to alarm them

regarding existential consequences could also be a constitutionally protected freedom that could

be prosecuted under this statute. This statute is overbroad.

        In Karenev v. State, 258 S.W.3d 210 (Tex.App.-Fort Worth 2008), [reversed on

preservation grounds] the Fort Worth Court of Appeals found the the same Section (a)(7) that was

prosecuted in the instant appeal before this Honorable Court to be unconstitutionally void for

vagueness.

        The Fort Worth Court noted in Karenev that although the statute had been been previously

held unconstitutionally vague, it was amended and “the legislature has cured most of the

deficiencies in the statute...”

        Section (a)(7), however, exhibits the same infirmities as the old statute that was held

unconstitutional. “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."

                                               -6-
       “Moreover, the additional terms are themselves susceptible to uncertainties of meaning.”

See Long v State, 931 S.W.2d 285 (1996), where the Texas Court of Criminal Appeals applied the

Fifth Circuit’s reasoning in Kramer v. Price, 712 F.2d 174 (5th Cir.1983) to find the Texas

Stalking statute to be void for vagueness.



                        POINT OF ERROR NUMBER TWO:
                The Appellant’s trial counsel was constitutionally
                inadequate and provided ineffective assistance of
                counsel due to a failure to challenge the Harassment
                Statute upon which the Defendant was convicted as being
                constitutionally void for vagueness and overbreadth.



       The Appellant incorporates the relevant assertions in point of error number one herein,

specifically his contention that the statute under which the Appellant was prosecuted is void, and

that the Appellant’s conviction for violating a void statute should not stand.

       Appellant writes this second point of error separately, and only if necessary, to prevent the

possibility of this Honorable Court of Appeals from disposing of the Appellant’s appellate

contention on any possible preservation of error grounds.

       The Court of Criminal Appeals has stated that "a defendant may not raise for the first time

on appeal a facial challenge to the constitutionality of a statute." see Karenev v. State, 281 S.W.3d

428, 434 (Tex.Crim.App. 2009). This was the Opinion where the Court of Criminal Appeals

struck down the Ft, Worth court’s vagueness reversal discussed above.

       Under Karenev, "[a] facial challenge to the constitutionality of a statute" falls within the

category of matters for which an objection is necessary to preserve error pursuant to Marin v.

State, 851 S.W.2d 275, 279-80 (Tex.Crim.App. 1993).

                                              -7-
        In the instant case, the Appellant’s jury trial counsel did not make any facial challenge to

the constitutionality of the statute. It was only after the Appellant was convicted and the jury trial

counsel withdrew from representation that the undersigned counsel was appointed.

        Appellant then asked the trial court through newly appointed counsel, both verbally and in

the form of a written pleading, to set aside the conviction due to the void statute, and to quash the

information and complaint. The trial court denied those requests.

        If the Karenev/Marin rule stated above is interpreted to prevent raising a facial challenge

to the constitutionality of the statute for the first time before the trial court after jury verdict, then

the Appellant asserts in this point of error number two that he was denied his Sixth Amendment

right to the effective assistance of counsel.

        The Appellant should not be denied his right to be free from conviction and prosecution

under a void statute simply because his trial counsel failed to lodge appropriate objections and

motions challenging the statute before trial.

        To show that his trial counsel provided ineffective assistance, an appellant is first

required to show that the attorney’s performance “was deficient because it fell below an objective

standard of reasonableness.” Next, an appellant must also show that “a probability sufficient to

undermine confidence in the outcome existed that, but for counsel's unprofessional errors, the

result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).

        Hindsight review of an attorney’s efforts will be highly deferential. The appellate court

"must indulge a strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance..."     Basically, there is a presumption in favor of the trial

attorney’s actions. That presumption is that counsel’s actions and omissions were part of a trial

strategy. See Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

                                                 -8-
       A single act or omission may render counsel’s performance ineffective, but it is not

required that each single act or omission alone constitute ineffectiveness. Some examples of a

single omission constituting ineffective assistance involve mental health claims. In Freeman v.

State; 167 S.W.3d 114 (Tex. App. 2005) trial counsel provided ineffective assistance by failing to

conduct an adequate investigation of mental health issues. Similarly, in Conrad v. State, S.W.3d

424 (Tex. App. 2002) an attorney rendered ineffective assistance when he failed to investigate the

possible insanity defense. Similarly, the Appellant’s ineffective assistance claim is predicated

upon a single omission: failing to challenge a statute that had been previously held void by a

Texas appellate court.

       Courts routinely hold that most allegations of ineffective assistance are better brought

upon post-appellate habeas corpus applications, where an applicant can build a record regarding

the strategy and tactics, if any, involved with his counsel’s acts or omissions.   Ineffectiveness is

often difficult to show on direct appeal, because any allegation of ineffectiveness have to be

within the existing record, and that record must affirmatively demonstrate the alleged

ineffectiveness. Generally the record on direct appeal is insufficient to rebut the presumption of

legitimate trial strategy. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003);

Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000); Hernandez v. State, 943 S.W.2d 930 (Tex.

App.---El Paso 1997);. Harling v. State, 899 S.W.2d 9, 12 (Tex. App. --San Antonio 1995).

       In the instant case, if this Honorable Court of Appeals determines that the Appellant’s

constitutional claims are barred, waived, or not preserved by his jury trial counsel’s failure to raise

the claims pretrial, then that counsel was ineffective as a matter of law. There can be no

reasonable trial strategy in failing to challenge a void statute and thereby win the case. This

ineffective assistance claim can be decided based on the existent trial record, and without any

need to present it in a subsequent habeas corpus proceeding.

                                               -9-
                                            SUMMARY

           The Appellant has been convicted for violating a void statute. His conviction, fine, and

six months jail sentence are predicated upon a statute that is both void for vagueness, and void for

overbreadth. The trial court erred in failing to grant the Appellant’s request to set the conviction

aside and quash the complaint and information. If the Appellant’s post-verdict pre-sentence

challenge to the constitutionality of the statute was untimely, then he has received ineffective

assistance from his jury trial counsel, and the case should be reversed to enable him to advance

the constitutional challenges.

                                               PRAYER
           Appellant prays that this Honorable Court reverse the decision of the trial court, and

remand this cause with orders that the Appellant not be again prosecuted for violating a void

statute.

                                                         Respectfully submitted,

                                                         /s/__________________________
                                                         PAT MONTGOMERY, TBN 14295350
                                                         111 SOLEDAD, SUITE 300
                                                         SAN ANTONIO, TX 78205
                                                         (210) 225-8940 Fax (978)285-4664
                                                         PatMontgomery@Gmail.com
                                                         Attorney for Appellant


      CERTIFICATE OF SERVICE AND WORD COUNT COMPLIANCE

      Counsel certifies by his signature below that the word count is 3199, and that
contemporaneously with the electronic filing of this Brief, he has provided a copy to:

           1. The Bexar County District Attorney’s Office.
           2. The Appellant.

                                                         Respectfully submitted,
                                                         /s/
                                                         Pat Montgomery

                                            -10-
