Reece, Ex Parte Kelcey Kent
2017 Tex. Crim. App. LEXIS 424
| Tex. Crim. App. | 2017Background
- Appellant Ex parte Kelcey Kent Reece challenged facial constitutionality of Texas Penal Code § 42.07(a)(7)/(b)(1) as applied to "electronic communications," arguing it violates the First Amendment.
- The court of appeals rejected Reece’s First Amendment challenge, relying on this Court’s earlier decision in Scott v. State.
- The electronic-communications provision criminalizes sending repeated electronic communications with intent to harass, annoy, alarm, abuse, torment, or embarrass, and defines "electronic communication" broadly.
- The statute enumerates examples (email, instant message, network call, facsimile, pager) but uses the word "includes," suggesting a non-exhaustive list.
- Dissenting judge (Keller, P.J.) argues the provision is materially broader than the telephone-focused statute in Scott, potentially criminalizing commonplace internet criticism and protected speech repeated twice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the electronic-communications harassment provision is facially unconstitutional under the First Amendment | Reece: provision is overbroad; sweeps in protected electronic speech (e.g., posts, comments) because it reaches any electronic communication likely to annoy/offend | State/Court of Appeals: provision does not implicate protected speech in same way as prior telephone provision (following Scott) | Court of Appeals rejected Reece’s First Amendment challenge; dissent would grant review to reassess scope |
| Whether the statute is coextensive with the telephone harassment provision construed in Scott | Reece: electronic provision is broader than Scott’s telephone-focused rule and captures communications not directed at a person or invading privacy | State: Scott controls and supports non-implication of First Amendment | Dissent: provision is substantially broader than Scott and merits re-examination |
| Whether the enumerated examples limit the statute’s reach | Reece: ‘‘includes’’ is nonexclusive, so examples do not limit scope; statute sweeps broadly | State: statutory examples indicate targeted categories (emails, IMs, pagers) | Dissent: statutory text supports expansive reach; narrowing or severance might be required on review |
| Whether legitimate communicative purpose bars liability under the statute | Reece: criminalizes communications even with legitimate expressive purpose if intent to annoy is present | State (relying on Scott, but modified by Wilson): legitimate purpose does not per se negate the statute’s intent element | Dissent: Wilson’s retreat from narrowing language strengthens need to revisit Scott and the statute’s constitutionality |
Key Cases Cited
- Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010) (construed telephone harassment provision as not implicating First Amendment in usual cases)
- Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014) (rejected narrowing language in Scott; held repeated communications need not occur within a set timeframe and legitimate reason does not per se negate intent)
- Ex parte Perry, 483 S.W.3d 884 (Tex. Crim. App. 2016) (discusses narrowing construction and severance as remedies for overbreadth)
- Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) (addresses overbreadth concerns and statutory breadth)