675 S.W.3d 104
Tex. App.2023Background
- Magistrate issued an emergency protective order on Feb. 5, 2020 after Appellant Barry Alan Boes II was arrested for family violence; order prohibited communicating “in any manner” with the protected person.
- In March 2020 Boes tagged his estranged wife, Dr. Sheila Boes, on Facebook multiple times; posts embarrassed her but were not threatening.
- Law enforcement investigated after the divorce attorney complained; Detective Terreo interviewed Boes, introduced evidence about Facebook tagging, and testified at trial.
- A jury convicted Boes under Texas Penal Code §25.072 (repeated violation of protective order); court imposed five years (fine suspended in favor of community supervision).
- Post-verdict a juror (Rodgers) swore she believed Boes was guilty because he did not testify (influenced by a TV show); Boes moved for a new trial alleging juror misconduct.
- On appeal Boes raised four issues: juror misconduct, admission of lay opinion that tagging is a communication, sufficiency of the evidence, and First Amendment overbreadth.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Boes) | Held |
|---|---|---|---|
| Sufficiency: do Facebook "tags" constitute "communication" under the protective order? | Tags create a link/notification and transmit information; victim testimony and Boes’s interview support intent — evidence sufficient. | Tags are not intentional communications to the protected person; Boes lacked specific knowledge of tagging and did not intend to communicate. | Tagging can constitute a communication; viewing evidence in light most favorable to verdict, the Court finds evidence sufficient. |
| Juror misconduct: juror bias that silence = guilt (failure to disclose) | Evidence of juror affidavit shows bias that could have deprived Boes of fair trial. | Juror affidavit concerns internal deliberations; Rule 606(b) bars impeachment absent outside influence; no evidence of outside influence. | No abuse of discretion in denying new trial; affidavit inadmissible under Rule 606(b) and Pena‑Rodriguez exception not met. |
| Admission of lay opinion: Detective’s testimony that tagging is communication / on Boes’s intent | Detective’s testimony explained Facebook tagging mechanics and the investigator’s view; not objected to as improper lay opinion at trial. | Detective improperly opined on ultimate issue (guilt/culpable mental state); should have been excluded. | Issue not preserved — objection at trial was hearsay only; appellate complaint fails to comport with trial objection. |
| Free speech/Overbreadth: does §25.072 criminalize protected speech (non‑threatening Facebook posts)? | Statute applies narrowly to restricted communications in family‑violence protective orders; limited duration and context weigh against overbreadth. | Statute is overbroad as applied to harmless, non‑threatening posts in a public forum; First Amendment protects such speech. | Statute not overly broad as applied here; tagging falls within proscribed communication and is not entitled to First Amendment protection in this context. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review in criminal cases)
- Pena‑Rodriguez v. Colorado, 580 U.S. 206 (exception to no‑impeachment rule for racial bias in jury deliberations)
- Wagner v. State, 539 S.W.3d 298 (Tex. Crim. App.) (upholding §25.07 against overbreadth challenge in the protective‑order context)
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (discussing overbreadth doctrine and limits on challenging statutes)
- Virginia v. Black, 538 U.S. 343 (recognizing categories of unprotected speech, e.g., true threats)
- Colyer v. State, 428 S.W.3d 117 (Tex. Crim. App.) (outside‑influence requirement to pierce Rule 606(b) no‑impeachment rule)
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App.) (deference to jury fact findings and legal standards for review)