                                    Fourth Court of Appeals
                                            San Antonio, Texas
                                                     OPINION
                                                No. 04-14-00383-CR

                                                     Sean LEBO,
                                                      Appellant

                                                        v.
                                                    The State /s
                                               The STATE of Texas,
                                                     Appellee

                        From the County Court at Law No. 14, Bexar County, Texas
                                         Trial Court No. 413956
                                Honorable Bill C. White, Judge Presiding 1

Opinion by:         Rebeca C. Martinez, Justice

Sitting:            Sandee Bryan Marion, Chief Justice
                    Rebeca C. Martinez, Justice
                    Luz Elena D. Chapa, Justice

Delivered and Filed: August 26, 2015

AFFIRMED

           Sean Lebo appeals his conviction for harassment through electronic communications, a

Class B Misdemeanor. TEX. PENAL CODE ANN. § 42.07(a)(7) (West Supp. 2014). Lebo asserts

on appeal that the statute proscribing harassment by electronic communications is unconstitutional

on its face, and therefore his conviction is void and must be reversed. We disagree, and affirm the

trial court’s judgment.




1
    Senior District Judge Phil Chavarria presided over the guilt/innocence and punishment phases of trial.
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                                          BACKGROUND

       In 2010, Bexar County Sheriff’s Detective Jason Layman investigated a criminal case

involving Lebo. On December 21, 2012, Lebo contacted Layman by email and accused him of

destroying evidence and being a felon, corrupt, and incompetent. Lebo threatened to seek

Layman’s arrest. Two days later, Lebo emailed Layman twice, again accusing him of being

corrupt, threatening to sue Layman and have him arrested, and stating, “Do you know what they

do to Police Officers in prison?” On December 25, 2012, Lebo sent five emails to Layman calling

him names, threatening him with civil and criminal proceedings, and threatening his family.

Layman responded to Lebo by email on December 26, 2012, requesting that Lebo stop sending

emails for non-official business and referring him to the appropriate contact to make a complaint

about his professional conduct. Lebo continued sending Layman threatening and combative

emails during 2013, along with letters through the regular mail. Layman received a total of almost

40 emails from Lebo.

       On April 16, 2013, Lebo was charged with harassing Detective Layman through repeated

electronic communications. See TEX. PENAL CODE ANN. § 42.07(a)(7). The information alleged

that, on or about January 3, 2013, Lebo, “with intent to harass, annoy, alarm, abuse, torment, and

embarrass another, namely, Jason Layman, . . . did send repeated electronic communications to

Jason Layman in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass,

and offend another, to-wit: by sending multiple electronic mail messages.” Lebo pled not guilty

and was tried by a jury, which found him guilty. The trial court imposed a sentence of six months’

confinement in jail, plus a $1,000 fine. Lebo appealed.

                                           DISCUSSION

       Lebo raises two related issues on appeal: (1) the portion of the harassment statute pertaining

to electronic communications is unconstitutional on its face; and (2) his original trial counsel was
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ineffective for failing to raise the constitutional challenge earlier in the trial proceedings. The

relevant subsection of the statute provides as follows:

         § 42.07 Harassment

         (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.

TEX. PENAL CODE ANN. § 42.07(a)(7) (West Supp. 2014). The term “electronic communication”

is defined to include “a communication initiated by electronic mail.” Id. § 42.07(b)(1) (West Supp.

2014).

                              CONSTITUTIONALITY OF SECTION 42.07(A)(7)

         Preservation of Error

         We must first address whether Lebo preserved his facial constitutional challenge. The

State argues that Lebo failed to raise his constitutional challenge in the trial court, and has thus

waived the issue. See Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (holding

that a facial challenge to a statute’s constitutionality falls within the category of rights that may be

forfeited under Marin, and therefore may not be raised for the first time on appeal); see also Marin

v. State, 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993) (establishing three categories of rights). 2

The State acknowledges that Lebo filed a post-verdict motion to set aside the conviction and


2
  In a recent plurality opinion, the court allowed a defendant to challenge his conviction as void for the first time on
petition for discretionary review to the Court of Criminal Appeals where the statute under which he was convicted
had been declared facially unconstitutional during the pendency of his appeal in the intermediate court of appeals,
thereby rendering his conviction void. See Smith v. State, Nos. PD-1790 through 1793-13, 2015 WL 3895016, at *3-
4 (Tex. Crim. App. June 24, 2015). The court made clear, however, that the general principle stated in Karenev, that
a defendant cannot raise a facial challenge to the constitutionality of a statute for the first time on appeal, remains
valid. Id. at *4 (distinguishing Karenev because the defendant there was attacking a valid statute that had not yet been
declared void).


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dismiss the information on the basis that the statute is overbroad and unduly vague, and thus

unconstitutional. However, the State contends the motion and argument contained only bald,

conclusory statements and presented no substantive analysis, and that defense counsel

acknowledged that the motion was filed to preserve the issue for appeal. Lebo concedes that the

post-verdict motion was the first time he raised the issue of constitutionality of the statute; the

motion was filed on the day of the sentencing hearing by new counsel who was appointed after

Lebo was found guilty by the jury. A brief hearing was held on the motion a few days later, and

the court denied the motion.

         Lebo’s argument in his trial court motion and on appeal is identical—that subsection (a)(7)

of the harassment statute is unconstitutional on its face, as both overbroad in violation of the right

to free speech and unduly vague in violation of the right to due process. We conclude that Lebo

preserved his complaint that the statute is facially unconstitutional. 3 That issue was presented to

the trial court at the sentencing hearing and again in a hearing held a few days later. Thus, Lebo’s

constitutional claim was presented to the trial court while it still had jurisdiction to set aside the

conviction, and the trial court ruled on Lebo’s motion. See TEX. R. APP. P. 33.1(a). We will

therefore address the merits of Lebo’s argument that section 42.07(a)(7) is unconstitutional on its

face.

         Facially Unconstitutional

         The constitutionality of a criminal statute is a question of law which we review de novo.

Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). In assessing a statute’s constitutionality,



3
  Lebo makes no effort on appeal to discuss the evidence developed at trial, and does not argue the statute is
unconstitutional as applied to the facts of his particular conduct; thus, he does not attempt to raise an as-applied
challenge. See Scott v. State, 322 S.W.3d 662, 665 n.1 (Tex. Crim. App. 2010) (noting that an as-applied challenge
to a statute’s constitutionality is a claim that “the statute operates unconstitutionally with respect to the claimant
because of his particular circumstances”) (citing Gillenwaters v. State, 205 S.W.3d 534, 536 n.3 (Tex. Crim. App.
2006)).

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an appellate court starts with the presumption that the statute is valid and that the legislature did

not act arbitrarily or unreasonably in enacting the statute. Rodriguez v. State, 93 S.W.3d 60, 69

(Tex. Crim. App. 2002). The party challenging the statute has the burden of establishing its

unconstitutionality. Id. We must uphold the statute if we can determine a reasonable construction

that renders it constitutional. See Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978).

       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.” Scott v. State, 322 S.W.3d 662, 665 n.1 (Tex. Crim. App.

2010); Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex. Crim. App. 2006). Lebo argues

section 42.07(a)(7) is unconstitutional because it is overbroad in that it invades the area of

protected speech, and because it is unduly vague in that it contains undefined terms which deprive

a person of adequate notice and give too much discretion in the enforcement of the statute. “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.” Scott, 322 S.W.3d at 665 n.2; Morehead v. State, 807 S.W.2d 577, 580 (Tex. Crim.

App. 1991). “A statute may be challenged as unduly vague, in violation of the Due Process Clause

of the Fourteenth Amendment, 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.

Scott, 322 S.W.3d at 665 n.2; Bynum v. State, 767 S.W.2d 769, 773 (Tex. Crim. App. 1989).

However, an argument that a statute is unduly vague usually requires a showing that the statute is

overly vague “as applied” to the particular defendant. Scott, 322 S.W.3d at 665 n.3; Bynum, 767

S.W.2d at 774. As noted, Lebo does not make an as-applied argument. An exception to the

requirement of an as-applied challenge exists, however, if the statute implicates the First
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Amendment’s guarantee of free speech, “i.e., if the statute, as authoritatively construed, is

susceptible of application to speech guaranteed by the First Amendment.” Scott, 322 S.W.3d at

665 n.3; see United States v. Williams, 553 U.S. 285, 304 (2008) (noting that in such a situation, a

defendant may argue that the statute is overbroad on its face because it is unclear whether it

proscribes a substantial amount of protected speech); see also Gooding v. Wilson, 405 U.S. 518,

520-21 (1972) (same).

       Thus, Lebo’s overbreadth and vagueness challenges hinge on whether section 42.07(a)(7)

proscribes communications which fall within the scope of protected free speech. As the court did

in Scott, we construe the gist of Lebo’s argument to be that subsection (a)(7) is “overbroad on its

face because its inherent vagueness makes it unclear whether it prohibits a substantial amount of

protected speech.” See Scott, 322 S.W.3d at 665 n.3.

       In Scott, the court addressed the question of whether the telephone harassment portion of

section 42.07 implicates the free-speech guarantee of the First Amendment in the context of an

overbreadth/vagueness challenge. Id. at 668-69 (addressing section 42.07(a)(4)). The court first

analyzed the scope of protection granted by the First Amendment’s free speech clause, stating that

it “generally protects the free communication and receipt of ideas, opinions, and information” but

also noting that “[t]he 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.” Id. (internal citations omitted) (emphasis added).

The court then applied statutory interpretation principles to determine the meaning of section

42.07(a)(4), focusing on its plain text as applied in the charging instrument. Id. at 669. The court

interpreted the statute’s plain text as requiring the actor to have the specific intent “to inflict harm

on the victim in the form of one of the listed types of emotional distress.” Id. In addition, the



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court stated the statute requires the actor to make repeated 4 telephone calls to the victim, and to

make the calls in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass,

or offend an average person. Id. (also noting the statute’s text does not require the use of spoken

words).     The court then concluded that section 42.07(a)(4) does not implicate the First

Amendment’s guarantee of free speech. Id. The court explained its reasoning as follows:

         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.

Id. at 669-70. The court thus held that section 42.07(a)(4) is “not susceptible of application to

communicative conduct that is protected by the First Amendment.” Id. at 669.

         We consider the free-speech analysis in Scott equally applicable to section 42.07(a)(7).

The statutory text in subsection (a)(7) dealing with electronic communications is identical to the

text in subsection (a)(4) dealing with telephone communications, with the sole exception that (a)(4)

provides an alternative manner of committing the offense by making repeated telephone calls

“anonymously.”         TEX. PENAL CODE ANN. § 42.07(a)(4) (providing that a person commits



4
  The court’s definition of the term “repeated” as meaning more than one telephone call “in close enough proximity
to properly be termed a single episode” was later held to be dicta, as well as confusing and unfounded in statutory
interpretation principles, and Scott was abrogated with respect to that portion of the opinion. See Wilson v. State, 448
S.W.3d 418, 422-23 (Tex. Crim. App. 2014) (disavowing the quoted portion of the definition, but agreeing with Scott’s
reference to the dictionary definition of the common meaning of “repeated” as “reiterated,” “recurring,” or
“frequent.”).


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harassment by causing the telephone of another to ring repeatedly or by making repeated telephone

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

torment, embarrass, or offend another). The difference in text is inconsequential to the First

Amendment analysis. In addition, the Scott analysis dealt with the same manner of committing

harassment as Lebo’s case. See Scott, 322 S.W.3d at 665 (defendant was not charged with making

repeated anonymous calls, but with making repeated calls in a manner likely to harass, annoy,

alarm, etc.). All of the subsections of section 42.07 have the same subjective intent requirement,

i.e., that the actor engage in the particular form of communicative conduct with the specific intent

to “inflict harm on the victim in the form of one of the listed types of emotional distress,” i.e.,

“harass, annoy, alarm, abuse, torment, embarrass, or offend.” See id. at 669. Therefore, an actor

whose email communications run afoul of subsection (a)(7) 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). 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;” thus, they are not the type of legitimate communication that is protected by

the First Amendment. See id. at 670. Based on this reasoning, we hold that the electronic

communications proscribed by subsection (a)(7) do not implicate protected speech under the First

Amendment. Lebo has failed to establish that section 42.07(a)(7) violates the constitution by being

overbroad or unduly vague. See id. at 665 n.3; see also Gooding, 405 U.S. at 520-21.

                                      INEFFECTIVE ASSISTANCE

        Lebo’s second issue on appeal asserts his original trial counsel rendered ineffective

assistance by failing to challenge the constitutionality of the statute earlier in the trial process, i.e.,

before trial or during the guilt/innocence phase. As Lebo notes, this issue is conditioned on our
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holding that he failed to preserve error with respect to his constitutional challenge. Having

addressed Lebo’s constitutional challenge on its merits, there is no basis for Lebo’s ineffective

assistance claim and we need not consider the issue. See TEX. R. APP. P. 47.1.

                                         CONCLUSION

       Based on the foregoing reasons, we overrule Lebo’s issues on appeal and affirm the trial

court’s judgment.


                                                Rebeca C. Martinez, Justice


PUBLISH




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