      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-04-00760-CR




                                       Jung Park, Appellant

                                                  v.

                                   The State of Texas, Appellee


             FROM THE COUNTY COURT-AT-LAW NO. 6 JUDICIAL DISTRICT
               NO. 676027, HONORABLE JAN BRELAND, JUDGE PRESIDING



                             MEMORANDUM OPINION


               After the trial court denied her motion to quash or set aside the information, appellant

Jung Park pleaded nolo contendere to the offense of telephone harassment in October 2004. See

Tex. Pen. Code Ann. § 42.07(a)(4) (West 2003). Appellant appeals the trial court’s denial of her

motion to quash arguing that the statute is unconstitutionally vague and overly broad and that the

information was defective in its language related to intent. We affirm the judgment of the trial court.


                              Factual and Procedural Background

               Appellant refers to the probable cause affidavit for a description of the facts of the

offense. According to the affidavit, in January 2004, appellant was convicted of the offense of

harassing communication for making repeated harassing telephone calls to the victim, the president

of a company from which she had been fired in 2001. Appellant received probation but violated the
terms of her probation by continuing to make phone calls to the victim. On April 10, 2004, appellant

was jailed for violating her probation, and while in jail, she made further unwelcome phone calls to

her former employer on at least 10 separate days. She was released on July 9 and continued to make

the unwanted calls throughout July until she was charged by information with a second offense of

telephone harassment; this second prosecution is the subject of this appeal. Appellant filed a motion

to quash or set aside the information, contending (1) that section 42.07(a)(4) of the penal code was

unconstitutionally vague and overly broad on its face and (2) that the information was defective

because it charged her with acting intentionally, knowingly, or recklessly when section 42.07(a)(4)

is a specific intent crime. See Tex. Pen. Code Ann. § 42.07(a)(4). The trial court denied the motion,

and appellant pled nolo contendere and was sentenced to 300 days in jail. She appeals the trial

court’s denial of her pretrial motion to quash the information.



                                 Constitutionality of the Statute

               Appellant first contends that section 42.07(a)(4) of the penal code is facially vague

and overly broad in violation of the U.S. Constitution.1

               When reviewing the constitutionality of a statute, we presume that the statute is valid

and that the legislature acted reasonably in enacting the statute. Rodriguez v. State, 93 S.W.3d 60,

69 (Tex. Crim. App. 2002). The person challenging the statute must prove its unconstitutionality.

Id. In analyzing a facial challenge to the overbreadth and vagueness of a law, we first determine


       1
          Although appellant only raised the issue of vagueness before the trial court, we will
consider her overbreadth arguments on appeal. See Holberg v. State, 38 S.W.3d 137, 138 n.4 (Tex.
Crim. App. 2000) (questions of statute’s constitutionality may be raised for first time on appeal).

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whether the statute reaches “a substantial amount of constitutionally protected conduct.” Village of

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982). A statute is overbroad

if it criminalizes speech or other conduct protected by the First Amendment. Clark v. State, 665

S.W.2d 476, 482 (Tex. Crim. App. 1984). If a criminal statute implicates speech rights protected

by the First Amendment, the defendant may challenge the statute as vague on its face even if the

statute may not be vague as applied to the defendant’s conduct. Gooding v. Wilson, 405 U.S. 518,

521 (1972). If First Amendment rights are not implicated, we will sustain a vagueness challenge

only if the statute is vague in all of its applications. Village of Hoffman Estates, 455 U.S. at 495.

The first step in this determination is to analyze whether the statute is impermissibly vague as

applied to the challenging party’s specific conduct. Bynum v. State, 767 S.W.2d 769, 773-74 (Tex.

Crim. App. 1989). A party whose conduct is clearly proscribed by a statute cannot complain that

the law is vague as applied to others, and we will examine the defendant’s conduct before analyzing

any hypothetical applications of the statute. Village of Hoffman Estates, 455 U.S. at 495.

               Section 42.07(a)(4) provides that a person commits an offense if, with the “intent to

harass, annoy, alarm, abuse, torment, or embarrass another,” she

               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.



Id. Appellant argues that section 47.07(a)(4) is unconstitutionally overbroad, citing Alexander v.

Johnson, in which the court opined that “‘repeated telephone communications’ that are ‘reasonably



                                                 3
likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another’ would appear to

implicate the First Amendment.” 217 F. Supp. 2d 780, 800-01 (S.D. Tex. 2001).

               Initially, we note that it appears the statute under which the defendant’s probation was

revoked in Alexander was the stalking statute, declared unconstitutional in Long v. State, 931 S.W.2d

285 (Tex. Crim. App. 1996), not the telephone harassment statute at issue here, thus making the

Alexander court’s discussion of the telephone harassment statute unnecessary to its opinion. See 217

F.2d at 794, 802 (“The only ground upon which Alexander’s parole was revoked, violation of the

1993 stalking statute, provided no basis for such an action, as the statute has been declared

unconstitutional on its face.”). Further, as noted by the Fourth Circuit in Thorne v. Bailey,

harassment is not protected speech under the First Amendment and is not communication, although

it may take the form of speech. 846 F.2d 241, 243 (4th Cir. 1988) (quoting State v. Thorne, 333

S.E.2d 817, 819 (W.Va.), cert. denied, 474 U.S. 996 (1985)); see Test Masters Educ. Servs. v. Singh,

428 F.3d 559, 580 (5th Cir. 2005) (“Courts have made a distinction between communication and

harassment. The difference is one between free speech and conduct that may be proscribed.

Although restrictions based upon conduct may incidentally restrict speech, the courts have found that

such a restriction poses only a minimal burden on speech.”) (citations omitted). The statute does not

criminalize telephone calls made with legitimate intentions to communicate and only prohibits calls

specifically intended to “harass, annoy, alarm, abuse, torment, or embarrass.” In other words, the

statute only infringes on telephone communications made with an intention to inflict mental

discomfort on another; harassing conduct does not obtain constitutional protection simply because

it is done by way of a telephone. Thorne, 846 F.2d at 243 (quoting 333 S.E.2d at 819).



                                                  4
               In Gillenwaters v. State, we agreed with the Thorne court and held, contrary to the

dicta in Alexander, that the telephone harassment statute is not unconstitutionally broad. No. 03-04-

00077-CR, 2005 Tex. App. LEXIS 5510, at *12 (Tex. App.—Austin July 13, 2005, pet. granted)

(not designated for publication); see Townsend v. State, No. 14-96-01571-CR, 1999 Tex. App.

Bowker, 372 F.3d 365, 379 LEXIS 9561, *5 (Tex. App.—Houston [14th Dist.] Dec. 30, 1999, pet.

ref’d) (“there is no authority for the proposition that making repeated telephone calls in a manner

reasonably likely to harass and annoy another is a constitutionally protected activity”); Bader v.

State, 773 S.W.2d 769, 770 (Tex. App.—Corpus Christi 1989, pet. ref’d) (holding that telephone

harassment statute is not overly broad).2 As we stated in Gillenwaters, “[t]he telephone harassment

statute does not sweep within its coverage any protected activity under the First Amendment,” and

the mere fact that communications are made, as opposed to repeated hang-ups or anonymous calls,

does not “turn conduct into speech for purposes of First Amendment analysis.” 2005 Tex. App.

LEXIS 5510, at *10 (citing O’Brien v. United States, 391 U.S. 367, 376 (1968)). “Prohibiting

harassment is not prohibiting speech because harassment is not protected speech.” Id. (citing

Thorne, 846 F.2d at 243).




       2
          See also State v. Johns, No. 05-97-00862-CR, 1998 Tex. App. LEXIS 5539, *7 (Tex.
App.—Dallas, Aug. 31, 1998, no pet.) (not designated for publication) (defendant made repeated
phone calls to complainant after being told not to call; court held that statute sufficiently defined
telephone harassment and put defendant on notice of what conduct was unlawful); Hipps v. State,
No. 05-96-01420-CR, 1998 Tex. App. LEXIS 3108, *10 (Tex. App.—Dallas May 26, 1998, no pet.)
(not designated for publication) (defendant repeatedly called complainant company, including
numerous “hang-up phone calls”; court held that there was no authority “that causing another
person’s telephone to ring repeatedly or repeatedly making anonymous telephone calls is a
constitutional protected activity”).

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               Appellant also argues that Coates v. City of Cincinnati supports her claim that section

42.07(a)(4) chills protected free speech. 402 U.S. 611 (1971). Coates involved a city ordinance that

forbade three or more people from gathering on public sidewalks and street corners in a manner

annoying to persons passing by, and the Supreme Court held that the ordinance violated the

constitutional rights of freedom of association and freedom of assembly. 402 U.S. at 616. Aside

from the difference in the offensive conduct—gathering in public in a manner that happens to annoy

passers-by versus making repeated phone calls both intended and reasonably likely to harass, offend,

annoy, or alarm another person—section 42.07(a)(4), which criminalizes conduct directed at a person

in a private place such as his home or business, is distinguishable from the Coates ordinance, which

restricted speech and gathering in traditional public forums. See id.; United States v. Bowker, 372

F.3d 365, 379 (6th Cir. 2004), vacated on other grounds by 543 U.S. 1182 (2005), modified and

reinstated by 125 Fed. Appx. 701 (6th Cir. 2005). Public streets and sidewalks, for “time out of

mind, have been used for purposes of assembly, communicating thoughts between citizens, and

discussing public questions.” Hague v. Committee for Indus. Org., 307 U.S. 496, 515 (1939)

(Roberts, J., plurality op.); see United States v. Grace, 461 U.S. 171, 177, 180 (1983) (such places

occupy “special position in terms of First Amendment protection” and government’s ability to

restrict expressive activity in traditional public forums “is very limited”). Harassing telephone

communication, on the other hand, is directed at private individuals, frequently in their homes or

businesses, and does not warrant the special protection traditionally granted to political or expressive

speech and conduct occurring in public forums. See Bowker, 372 F.3d 365, 379.




                                                   6
               Appellant has not shown that making repeated telephone calls with an intent to harass

another is a constitutionally protected activity, and we have already held that such conduct is not

constitutionally protected. See Gillenwaters, 2005 Tex. App. LEXIS 5510, at *11. We again hold

that the telephone harassment statute is not unconstitutionally overbroad, nor does it sufficiently

implicate constitutionally protected behavior under the First Amendment.

               Nevertheless, appellant may and does assert that the telephone harassment statute is

unconstitutionally vague. A law that is not unconstitutionally overbroad may be attacked as vague,

but the challenging party must show that “the law is impermissibly vague in all of its applications.”

Village of Hoffman Estates, 455 U.S. at 497. We first ask whether the statute is impermissibly vague

as applied to appellant’s conduct. Bynum, 767 S.W.2d at 773-74; see Village of Hoffman Estates,

455 U.S. at 494.

               In examining a criminal statute for vagueness, we look to the statute and ask whether

it gives a “person of ordinary intelligence a reasonable opportunity to know what is prohibited,” and

whether the law provides explicit standards for those who apply them or whether it “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 applications.” Village

of Hoffman Estates, 455 U.S. at 498-99 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09

(1972)). A requirement of intent may mitigate a law’s vagueness, “especially with respect to the

adequacy of notice to the complainant that his conduct is proscribed.” Id. at 499. If “the ordinary,

law-abiding individual would have received sufficient information that his or her conduct risked

violating a criminal law,” the law is not impermissibly vague. Bynum, 767 S.W.2d at 773.



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               Appellant was charged with making repeated and unwelcome telephone calls to the

president of her former employer for ten consecutive days in April 2004. Section 42.07(a)(4)

prohibits a person from causing a complainant’s telephone to ring repeatedly or from making

repeated telephone communications either anonymously or in a manner reasonably likely to be

harassing, annoying, alarming, or offensive to another person when the actor has the “intent to

harass, annoy, alarm, abuse, torment, or embarrass.” Tex. Pen. Code Ann. § 42.07(a)(4). The

language of the statute explains the kind of conduct that is illegal, and a reasonable person in

appellant’s position would know that phoning someone repeatedly, for ten days in a row, knowing

and intending that the calls were unwelcome and harassing, is a criminal offense. See DeWillis, 951

S.W.2d at 217 (telephone harassment statute specifically defines proscribed conduct and includes

reasonable-person standard); see also Gillenwaters, 2005 Tex. App. LEXIS 5510, at *17 (agreeing

with DeWillis analysis and holding that “telephone harassment statute prohibits only a narrowly

defined scope of activity”). The statute does not impermissibly delegate policy matters to law

enforcement for subjective and ad hoc resolution, but instead provides guidelines allowing for

objective enforcement. See Village of Hoffman Estates, 455 U.S. at 498-99. Finally, the statute

requires that the repeated calls be made with the intent to harass, annoy, alarm, abuse, torment,

embarrass, or torment the recipient. See Tex. Pen. Code Ann. § 42.07(a).

               The language of the statute would have given a reasonable individual in appellant’s

situation clear notice that her repeated and unwanted telephone calls made during ten consecutive

days would amount to a criminal offense, and appellant does not explain how the telephone

harassment statute is unconstitutional as applied to her specific conduct or argue that she was



                                                8
unaware that her conduct was illegal. See DeWillis, 951 S.W.2d at 217 (“Appellant has failed to

explain how the harassment statute is unconstitutional as applied to him. Also, appellant has failed

to bring forth a record containing the facts surrounding his conduct for this court to determine

whether [the statute] is vague as applied to him.”). Appellant has not shown that section 42.07(a)(4)

is vague as applied to her conduct, and therefore has not shown that the statute is unconstitutionally

vague in all of its applications. See Village of Hoffman Estates, 455 U.S. at 495.

               Having concluded that section 42.07(a)(4) is not overbroad, does not sufficiently

implicate protected First Amendment freedoms, and is not unconstitutionally vague as applied to

appellant and, therefore, in all applications, we overrule appellant’s first issue.



                                   Adequacy of the Information

               In her second issue, appellant contends that the information that charged her with the

subject offense was defective because it did not track the exact language of the statute with regard

to the intent required and the type of communications made. The information alleged that appellant:

       with the intent to harass, annoy, alarm, abuse, torment, and embarrass [the
       complainant], did then and there intentionally, knowingly and recklessly make
       repeated communications in a manner reasonably likely to harass, annoy, embarrass,
       alarm, abuse, torment, or offend the said [complainant], to wit: by making
       unwelcome telephone calls to [the complainant] from the Travis County Jail where
       the Defendant was serving a jail sentence for the offense of Harassing
       Communications against [the complainant].

               Appellant first complains that the information is defective because it states that she

“intentionally, knowingly and recklessly” committed the offense, rather than acting intentionally.




                                                   9
See Tex. Pen. Code Ann. § 42.07(a)(4).          Second, she complains that it alleged “repeated

communications,” not “repeated telephone communications,” as required by the statute. See id.

               An charging instrument is sufficient “if it accuses someone of a crime with enough

clarity and specificity to identify the penal statute under which the State intends to prosecute, even

if the instrument is otherwise defective.” Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App.

1997); see Tex. Code Crim Proc. Ann. arts. 21.02 (West 1989) (offense must be stated “in plain and

intelligible words”), .03 (West 1989) (“Everything should be stated in an indictment which is

necessary to be proved.”). If a particular intent is a material element of the offense, the indictment

or information must state the required intent. Tex. Code Crim. Proc. Ann. art. 21.05 (West 1989).

               To be convicted of telephone harassment, a person must act with the “intent to harass,

annoy, alarm, abuse, torment, or embarrass another.” Tex. Pen. Code Ann. § 42.07(a) (emphasis

added). The information in this case alleged that appellant, with the intent to harass the complainant,

made repeated phone calls intentionally, knowingly and recklessly. The information’s use of the

word “intentionally” satisfied the statute’s intent requirement, and the inclusion of two lesser mental

states, “knowingly and recklessly,” did not render the information fundamentally defective. Soto v.

State, 623 S.W.2d 938, 939 (Tex. Crim. App. 1981) (indictment charged that defendant acted

“intentionally, knowingly and recklessly” in committing assault; court held that indictment properly

alleged two required mental states and that inclusion of “recklessly” did not invalidate indictment).

               The information did not precisely track the language of section 42.07(a)(4) when it

accused her of making “repeated communications.” See Tex. Pen. Code Ann. § 42.07(a). However,



                                                  10
another clause in the same sentence stated that appellant made “unwelcome telephone calls.”

Reading the entire charging instrument as a whole, it is clear that the repeated communications that

appellant was accused of making were telephone communications.

               The inclusion of two lesser mental states and the use of the term “repeated

communications,” later clarified to mean telephone calls, are merely technical defects. Since these

small defects did not prevent appellant from identifying the penal statute under which the State

intended to prosecute her, we overrule her second issue. See Duron, 956 S.W.2d at 550-51.



                                           Conclusion

               Having overruled appellant’s issues on appeal, we affirm the trial court’s judgment.



                                              __________________________________________

                                              David Puryear, Justice

Before Chief Justice Law and Justices Patterson and Puryear

Affirmed

Filed: August 11, 2006

Do Not Publish




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