State v. Dan M. Grohn, 612 S.W.3d 78

Dan M. Grohn was charged by information (Feb–Mar 2019) with violating Tex. Penal Code § 42.07(a)(7) for repeatedly emailing/texting a woman with intent to "harass, annoy, alarm, abuse, torment and embarrass" her after being asked to stop.
Grohn moved to quash the information, arguing § 42.07(a)(7) is facially vague and overbroad (violates First Amendment). The trial court granted the motion.
The State appealed in an accelerated interlocutory appeal; this Court reviewed the statute de novo and presumed statutory validity absent a successful challenge.
The Court analyzed § 42.07(a)(7) in light of Scott v. State and related authority, focusing on whether the statute implicates protected speech (content-based vs. conduct aimed at inflicting emotional distress).
The Court rejected Grohn’s overbreadth and vagueness arguments (including reliance on Ex parte Barton), concluding the statute targets unprotected, communicative conduct intended to invade substantial privacy interests.
Result: the Court reversed the trial court’s ruling that § 42.07(a)(7) is facially unconstitutional and remanded; it did not reach the State’s remaining argument about excising language.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Overbreadth of § 42.07(a)(7) (First Amendment)	§ 42.07(a)(7) sweeps too broadly; terms like "harass, annoy...offend" could criminalize protected expression (content-based restriction).	The statute is content-neutral and targets repeated electronic communications with the specific intent to inflict emotional distress; like Scott, it regulates unprotected communicative conduct.	Not overbroad; statute targets non‑protected conduct when actor intends to inflict emotional distress by repeated electronic communications.
Vagueness of § 42.07(a)(7)	Terms are subjective; ordinary person cannot reasonably know what conduct is prohibited.	Because the statute does not implicate the First Amendment, Grohn must show vagueness as applied to him; he failed to do so.	Not unconstitutionally vague as applied; Grohn did not carry the burden to show vagueness in his conduct.
Severability / Excising unconstitutional phrase from the information	(Grohn) Requested facial invalidation; argued statute defective.	(State) If statute unconstitutional, any offending phrase can be excised from charging instrument.	Court did not reach this issue after resolving overbreadth and vagueness in favor of the State.

Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (presumption of statute validity; facial constitutionality reviewed de novo)
Maloney v. State, 294 S.W.3d 613 (Tex. Crim. App. 2009) (uphold statute if a reasonable constitutional construction exists)
Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002) (challenger bears burden to prove statute unconstitutional)
Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010) (repeated telephonic harassment with intent to inflict emotional distress is unprotected communicative conduct; analytic framework applied)
Lebo v. State, 474 S.W.3d 402 (Tex. App.—San Antonio 2015) (applied Scott to electronic communications and upheld § 42.07(a)(7))
Ex parte McDonald, 606 S.W.3d 856 (Tex. App.—Austin 2020) (applied Scott; upheld § 42.07(a)(7))
Ex parte Barton, 586 S.W.3d 573 (Tex. App.—Fort Worth 2019) (held § 42.07(a)(7) unconstitutional; declined to follow in this case)
State v. Holcombe, 187 S.W.3d 496 (Tex. Crim. App. 2006) (vagueness standard: statute invalid if ordinary person cannot reasonably know prohibited conduct)
U.S. v. Alvarez, 567 U.S. 709 (2012) (content-based speech restrictions presumptively invalid unless within historic exceptions)
Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) (overbreadth requires realistic danger that statute will significantly compromise First Amendment protections)