Wagner v. State, 539 S.W.3d 298

Paul Henri Wagner was charged under Tex. Penal Code § 25.07(a)(2)(A) for communicating "in a threatening or harassing manner" with his estranged wife in violation of a protective order entered after findings of family violence.
After the order, Wagner repeatedly texted, called, emailed his ex-wife, professing love, pleading to reconcile, and contacting third parties (church members); she asked him to stop.
Police were contacted after a forwarded email; Wagner was tried by jury, convicted, and sentenced to one year in jail (probated) and a fine.
On direct appeal Wagner argued the statute was overbroad and unconstitutionally vague (First and Fourteenth Amendments); the court of appeals affirmed.
The Texas Court of Criminal Appeals granted review to construe "communicates...in a...harassing manner," and to decide the overbreadth and vagueness challenges; it affirmed the court of appeals.

Issue	Wagner's Argument	State's Argument	Held
Meaning of “communicates...in a...harassing manner”	Should be narrowly read (e.g., requires lack of legitimate purpose and substantial emotional distress)	Plain meaning: conduct that persistently disturbs, bothers continually, or pesters	Court: plain meaning applies; requires knowingly/intentionally communicating in a manner that would persistently disturb, bother, or pester
First Amendment overbreadth	Statute criminalizes protected speech (expressions of love, child/financial matters)	Statute narrowly applies to persons subject to protective orders and targets unprotected harassment; not a substantial burden on protected speech	Court: statute not overbroad; targets non‑protected harassing communications by persons already judicially restricted
Vagueness (due process)	"Harassing" undefined; lacks notice—should require substantial emotional distress or clearer standard	Plain meaning is commonly understood; scienter (knowingly/intentionally) narrows scope and gives fair notice	Court: not impermissibly vague as applied to Wagner; his repeated unsolicited communications would be understood to be harassing
Content‑based / strict scrutiny	Statute is content‑based and should receive strict scrutiny	Issue was inadequately briefed on appeal; normal presumption of validity applies	Court: declined to reach merits of this claim (dismissed grounds 2 & 3) because lower court did not address it adequately

United States v. Williams, 553 U.S. 285 (2008) (first step in overbreadth analysis is statutory construction)
Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) (overbreadth requires a substantial number of unconstitutional applications judged against the statute’s legitimate sweep)
Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010) (telephone‑harassment statute did not implicate First Amendment because it targeted invasions of privacy intended to inflict emotional distress)
Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982) (vagueness analysis: examine as‑applied before facial challenges; plaintiffs engaging in clearly proscribed conduct cannot complain of vagueness as to others)
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (perfect clarity not required; context matters in vagueness analysis)