662 S.W.3d 903
Tex. Crim. App.2022Background
- Leonardo Nuncio was charged under Tex. Penal Code § 42.07(a)(1) for initiating communication and making an "obscene" comment; he filed a pretrial habeas claiming the statute is vague and overbroad under the First Amendment.
- The trial court denied relief; the Fourth Court of Appeals (San Antonio) affirmed; a dissent warned of vagueness similar to prior stalking/stalking‑type provisions.
- The Texas Court of Criminal Appeals granted discretionary review to decide (1) whether § 42.07(a)(1) implicates the First Amendment, (2) whether the statute is overbroad because § 42.07(b)(3)’s definition of "obscene" sweeps beyond Miller obscenity, and (3) whether the statute is unconstitutionally vague.
- The Court held § 42.07(a)(1) is a content‑based regulation of speech (it criminalizes making certain comments/requests/etc. that are "obscene").
- The Court concluded § 42.07(b)(3)’s definition of "obscene" reaches some speech outside Miller (so the statute potentially covers protected speech), but Nuncio failed to show a substantial number of unconstitutional applications; thus his overbreadth claim failed.
- The Court held § 42.07(a)(1) is not facially void for vagueness: "ultimate sex act" is reasonably defined via ejusdem generis and precedent, "patently offensive" aligns with the obscenity statute’s definition, and "another" reasonably means the target of the communication.
Issues
| Issue | Plaintiff's Argument (Nuncio) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Does § 42.07(a)(1) regulate speech implicating the First Amendment? | The statute targets communicative comments/requests and thus triggers First Amendment review. | Relying on Scott, § 42.07 harassment provisions regulate noncommunicative harassing conduct and do not implicate the First Amendment. | Held: § 42.07(a)(1) regulates speech (comment/request/etc. is pure speech) and is content‑based, so the First Amendment applies. |
| Is § 42.07(a)(1) facially overbroad under the First Amendment? | The statute is content‑based and therefore presumptively invalid; § 42.07(b)(3) sweeps in protected, indecent speech beyond Miller. | The statute reaches only Miller‑type obscenity (unprotected speech) and is not overbroad. | Held: § 42.07(b)(3) covers some protected speech beyond Miller, but Nuncio failed to demonstrate a substantial number of unconstitutional applications; overbreadth claim denied. |
| Does § 42.07(b)(3)’s definition of "obscene" match Miller or extend beyond it? | The statutory definition is broader and can criminalize indecent but protected expression. | The statute should be read as regulating Miller obscenity only. | Held: § 42.07(b)(3) reaches speech beyond Miller (so it can include protected speech). |
| Is § 42.07(a)(1) unconstitutionally vague (terms: "ultimate sex act," "patently offensive," "another")? | Terms are vague or under‑defined, risking arbitrary enforcement and chilling speech. | Precedent and statutory context give ordinary meaning to those terms; the statute provides adequate notice. | Held: Not facially vague. "Ultimate sex act" is clarified by examples and ejusdem generis; "patently offensive" aligns with the obscenity statute; "another" means the target of the communication. |
Key Cases Cited
- Miller v. California, 413 U.S. 15 (1973) (establishes constitutional obscenity test)
- United States v. Williams, 553 U.S. 285 (2008) (overbreadth and statutory‑construction principles)
- Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth is "strong medicine" to be used sparingly)
- New York State Club Ass’n v. City of New York, 487 U.S. 1 (1988) (overbreadth plaintiff must show substantial unconstitutional applications)
- Brown v. Entertainment Merchants Ass'n, 564 U.S. 786 (2011) (content‑based speech receives strict scrutiny)
- Pettijohn v. State, 782 S.W.2d 866 (Tex. Crim. App. 1989) (construed "ultimate sex act" in § 42.07 context)
- Lefevers v. State, 20 S.W.3d 707 (Tex. Crim. App. 2000) (applied ejusdem generis to interpret "ultimate sex act")
- Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996) (invalidated a stalking provision as facially vague)
- Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010) (held § 42.07(a)(4) addressed primarily noncommunicative conduct)
- Ex parte Perry, 483 S.W.3d 884 (Tex. Crim. App. 2016) (explains Texas overbreadth standard)