           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                         NO. PD-1432-16



                       Ex parte KELCEY KENT REECE, Appellant



                         DISSENT TO REFUSAL OF
             APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE ELEVENTH COURT OF APPEALS
                            MIDLAND COUNTY

                K ELLER, P.J., filed a dissenting opinion in which A LCALA, J., joined.

       Appellant challenges the facial constitutionality of the part of the harassment statute that

pertains to electronic communications. In rejecting his First Amendment challenge to that provision,

the court of appeals relied upon our prior decision in Scott v. State.1 Scott held that the part of the

harassment statute pertaining to telephone calls did “not implicate the free-speech guarantee of the

First Amendment.”2 The court of appeals in this case likewise held that the provision before it does


       1
         See Ex parte Reece, No. 11-16-00196-CR, 2016 Tex. App. LEXIS 12649 (Tex.
App.—Eastland November 30, 2016) (not designated for publication) (discussing Scott v. State, 322
S.W.3d 662 (Tex. Crim. App. 2010)).
       2
           322 S.W.3d at 669.
                                                                            REECE DISSENT — 2

“not implicate protected speech under the First Amendment.”3 I would grant review for two reasons.

        First, the electronic communications provision is much broader than the provision at issue

in Scott. The provision at issue in Scott was “directed only at persons who, with the specific intent

to inflict emotional distress, repeatedly use the telephone to invade another person’s personal

privacy.”4 By contrast, the electronic communications provision sweeps within its reach any

electronic communication, regardless of whether that communication is directed at a particular

person or infringes on the person’s privacy:

        A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment,
        or embarrass another, the person . . . sends repeated electronic communications in a
        manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or
        offend another. . . . “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.5

The electronic communications provision lists two types of communications that are included within

the reach of the statute. As in Scott, they are directed at a particular person and arguably infringe on

that person’s privacy:

        The term [“electronic communications”] includes:

        (A) a communication initiated by electronic mail, instant message, network call, or
        facsimile machine; and

        (B) a communication made to a pager.6

But the word “includes” is a term “of enlargement and not of limitation or exclusive enumeration”


        3
            Reece, 2016 Tex. App. LEXIS 12649, at *6.
        4
            322 S.W.3d at 669
       5
            TEX . PENAL CODE § 42.07(a)((7), (b)(1).
        6
            Id. § 42.07(b)(1) (emphasis added).
                                                                           REECE DISSENT — 3

and its use “does not create a presumption that components not expressed are excluded.”7

       Consequently, the electronic communications provision sweeps more broadly than the

enumerated examples and reaches any electronic communication that otherwise meets the

requirement of being annoying, harassing, etc. The breadth of this statute can be accurately

characterized as “breathtaking,” and, as such, is appropriate for review.8 It may be possible to save

the statute through a narrowing construction9 or through severance10 so that only the enumerated

examples are covered, or communications similar to those enumerated examples, but it is not clear

at this juncture that the statute can be saved in such a fashion and that is a matter that would need

to be taken up on review.

       The second reason to grant review is to re-examine Scott. In Scott, the Court defined the term

“repeated telephone communications” to mean “more than one telephone call in close enough

proximity to properly be termed a single episode.”11 The Court also stated that, “in the usual case,

persons whose conduct violates [the telephone provision] 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.”12 In my dissent in Scott, I criticized both of these supposed


       7
            Ex parte Perry, 483 S.W.3d 884, 909 (Tex. Crim. App. 2016).
       8
            See Ex parte Thompson, 442 S.W.3d 325, 350 (Tex. Crim. App. 2014).
       9
          See Perry, 483 S.W.3d at 903 (“A Texas court has a duty to employ, if possible, a
reasonable narrowing construction in order to avoid a constitutional violation.”).
       10
           Id. (“Even if a narrowing construction is not feasible, a state court may cure an
overbreadth problem by severing a portion of the statute.”).
       11
            322 S.W.3d at 669 n.12.
       12
            Id. at 670.
                                                                           REECE DISSENT — 4

restrictions on the scope of the telephone harassment provision. I pointed out that the Court’s

definition of “repeated” was not supported by any source and was inconsistent with what the term

is commonly understood to mean.13 And I argued that the language of the harassment statute was

not susceptible to being construed to reach only cases in which the actor solely intended to inflict

emotional harm and had no legitimate interest in communication.14 In Wilson v. State, a majority

of the Court agreed with me, and the Court disavowed this narrowing language in Scott.15

       Four judges on this Court indicated that Wilson’s retraction of the narrowing language in

Scott made the Scott decision ripe for re-examination.16 As with the telephone harassment provision

in Scott, the electronic communications harassment provision in the present case proscribes

“repeated” communications and proscribes such communications even if they have a legitimate

communicative purpose. But the broader scope of the electronic communications provision

exacerbates the concerns articulated by these four judges. This provision is not limited to emails,


       13
            Id. at 673 (Keller, P.J., dissenting).
       14
            Id. at 676-77.
       15
          Wilson v. State, 448 S.W.3d 418, 420, 422-23 (Tex. Crim. App. 2014) (“We hold that (1)
the phrase ‘repeated telephone communications’ does not require the communications to occur
within a certain time frame in relation to one another, and (2) a facially legitimate reason for the
communication does not negate per se an element of the statute.”). See also id. at 422-23, 425.
       16
            Id. at 426 (Keller, P.J. concurring, joined by Johnson, J.) (“I do not share the Court’s
optimism that it will be ‘exceedingly rare’” that the State will be able to show two communications
with the requisite intent. “At the time Scott was decided, I said that ‘the mischief this statute can
create is enormous,’ and the present case has only reinforced that conclusion.”) (brackets omitted);
Id. at 427 (Cochran, J., concurring, joined by Johnson and Alcala, JJ.) (“[U]nder the majority’s
interpretation, any two annoying calls made by a single person to another over any undefined period
of time suffices to create criminal liability. . . . I do not think that such a position can withstand
constitutional scrutiny.”); Id. at 430-31 (Alcala, J., dissenting on motion for rehearing) (describing
this Court’s holding in Wilson as “an about-face from our recent precedent in Scott” and an act that
“reinterprets[s] the telephone harassment statute”).
                                                                              REECE DISSENT — 5

instant messages, or pager calls. It also applies, for example, to facebook posts, message-board

posts, blog posts, blog comments, and newspaper article comments. If a person makes two posts or

comments on the internet with the intent to annoy or alarm another, and those two communications

are reasonably likely to annoy, alarm, or offend the same person, then a person can be subjected to

criminal punishment under this provision.

        Criticism can be annoying, embarrassing, or alarming, and it is often intentionally so. Under

this statute, a person can criticize another on the internet once, but not twice. That is true even if the

criticism is of the person’s political views. A blog owner or authorized moderator who wishes a

more genteel approach to debate may have the authority to block or eliminate posts to enforce a more

refined atmosphere at the owner’s website, but the First Amendment prohibits the government from

using the coercion of the criminal law to enforce a more refined atmosphere on the internet.

        I respectfully dissent.

Filed: April 12, 2017

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