Ex Parte Leonardo Nuncio, 579 S.W.3d 448

Background

Leonardo Nuncio was charged under Tex. Penal Code § 42.07(a)(1) (harassment) for allegedly initiating a job-interview communication and making sexual/obscene comments intended to harass the complainant.
The complaint alleged staring at breasts, asking sexual-history questions, asking her to solicit her boyfriend for sex, and telling her she couldn’t be a virgin and work for him.
Nuncio filed a pretrial writ of habeas corpus asserting §§ 42.07(a)(1) and (b)(3) are facially overbroad and unconstitutionally vague; the trial court denied relief.
On appeal Nuncio also urged the court to discard Miller v. California’s obscenity test as outdated; the appellate court noted it is bound by controlling precedent.
The court considered whether the statute criminalizes protected speech (overbreadth) and whether it provides fair notice/limits arbitrary enforcement (vagueness).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §§ 42.07(a)(1) and (b)(3) are facially overbroad under the First Amendment	Nuncio: statute sweeps in protected speech; definition of “obscene” and scope reach too broadly	State: statute targets only obscenity (unprotected speech) made with intent to harass, so does not reach protected expression	Not overbroad — statute reaches unprotected obscene communications directed at a particular victim with intent to harm
Whether §§ 42.07(a)(1) and (b)(3) are unconstitutionally vague	Nuncio: terms like “another” and scope of enforcement leave ordinary persons and enforcement authorities without fair notice; invites arbitrary enforcement	State: statutory text gives fair warning — requires initiating communication, making defined “obscene” remarks, and specific intent to emotionally harm a particular person	Not vague — provides fair notice; read in context it limits enforcement to obscene communications directed at a particular victim with intent to harm
Whether Miller v. California should be overruled for obscenity analysis	Nuncio: Miller is outdated in the Internet era and should be rejected	State/Appellate Court: bound by Texas Court of Criminal Appeals and U.S. Supreme Court precedent applying Miller	Court refuses to overturn Miller and applies existing obscenity framework
Pretrial habeas relief standard / scope of review	Nuncio sought facial constitutional relief via habeas	State argued, and court applied, standard for facial First Amendment challenges and reviewed legal questions de novo	Habeas relief denied; trial court order affirmed

Key Cases Cited

Miller v. California, 413 U.S. 15 (1973) (test for obscenity used by courts)
United States v. Stevens, 559 U.S. 460 (2010) (identifies categories of unprotected speech)
Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010) (overbreadth principles and First Amendment analysis)
Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2014) (standards for facial constitutional challenges in pretrial habeas)
State v. Johnson, 475 S.W.3d 860 (Tex. Crim. App. 2015) (overbreadth doctrine is narrowly applied; realistic, not fanciful hypotheticals required)
Lefevers v. State, 20 S.W.3d 707 (Tex. Crim. App. 2000) (statutory obscenity definition is comprehensible to average person)
Wagner v. State, 539 S.W.3d 298 (Tex. Crim. App. 2017) (vagueness standards and when First Amendment heightened scrutiny applies)