Ex Parte Leonardo Nuncio
OPINION
AFFIRMED
Authorities charged appellant Leonardo Nuncio with violating
BACKGROUND
According to the complaint prepared by an investigator from the Laredo Police Department (“LPD“), he met with the complainant at her residence. The complainant told the investigator she met with Nuncio for a job interview. The complainant stated that during the two-hour interview Nuncio stared at her breasts and “made several rude comments.” Nuncio allegedly asked the complainant if she liked to “party” and asked “what have you and your boyfriend done (sexually).” He also asked if her breasts were “Ds or double Ds” and told the complainant she was “hot.” Nuncio went on to ask the complainant to text her boyfriend “so you all can do a quickie in the back (of [the restaurant]).” Nuncio also told the complainant she “can‘t be a virgin” and work for him.
When the LPD investigator asked to meet with Nuncio, Nuncio refused and stated his intent to sue the complainant‘s mother for comments she allegedly made on social media about her daughter‘s encounter with Nuncio. The District Attorney‘s Office subsequently approved an arrest warrant for Nuncio, and a sworn complaint alleged Nuncio, “with intent to harass, annoy, alarm, abuse, torment, or embarrass [the complainant], ... initiate [sic] communication with the complainant, and in the course of the communication, make [sic] an obscene comment, to-wit: making comments about her breasts, asking about her sexual history, and/or telling [her] she could not be a virgin and work for him.”
In response to the charge, Nuncio filed an application for writ of habeas corpus, challenging the constitutionality of the harassment statute under which he was charged. After the trial court denied his application, Nuncio timely perfected this appeal.
ANALYSIS
In his first two appellate issues, Nuncio challenges the facial constitutionality of
Standard of Review
A defendant may file a pretrial application for writ of habeas corpus to raise a facial challenge to the constitutionality of the statute under which the defendant is charged. Ex parte Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App. 2014); Ex parte Zavala, 421 S.W.3d 227, 231 (Tex. App.—San Antonio 2103, pet. ref‘d). An appellate court generally reviews a trial court‘s decision to grant or deny an
When presented with a challenge to the constitutionality of a statute, an appellate court usually presumes the statute is valid and the Legislature has not acted arbitrarily or unreasonably. Lo, 424 S.W.3d at 14-15. With respect to constitutional provisions other than the First Amendment, a facial challenge to the constitutionality of a statute succeeds only if it is shown the statute is unconstitutional in all of its applications. State v. Johnson, 475 S.W.3d 860, 864 (Tex. Crim. App. 2015). However, if the statute in question restricts and punishes speech based on its content, the usual presumption of constitutionality does not apply. Lo, 424 S.W.3d at 15. Content-based restrictions are presumptively invalid, and the State has the burden to rebut the presumption. Id. A court uses strict scrutiny in its review of a content-based statute. Thompson, 442 S.W.3d at 344-45; Lo, 424 S.W.3d at 15-16.
Overbreadth
Nuncio contends
A statute may be challenged as overbroad, in violation of the First Amendment — and Article I, section 10 — if, in addition to proscribing activity that may be constitutionally forbidden, it sweeps within its coverage a substantial amount of expressive activity that is protected by the First Amendment. See Scott v. State, 322 S.W.3d 662, 665 n.2 (Tex. Crim. App. 2010), abrogated in part on other grounds, Wilson v. State, 448 S.W.3d 418, 423 (Tex. Crim. App. 2014). However, the overbreadth doctrine “is strong medicine that is used sparingly and only as a last resort.” Johnson, 475 S.W.3d at 865. To qualify as unconstitutionally overbroad, “the statute must prohibit a substantial amount of protected
The State argues the provisions challenged by Nuncio are not unconstitutionally overbroad because under a reasonable construction, they do not prohibit expression protected by the First Amendment. More specifically, the State contends the statute does not implicate the First Amendment because it proscribes the use of obscenity — unprotected speech — for purposes of harassment. In other words, the State argues the harassment statute‘s “plain legitimate sweep” is to protect a victim from obscene communications intended to harass, annoy, alarm, abuse, torment, or embarrass. See
To determine whether the State is correct, we must first determine the protection afforded by the free-speech guarantee of the First Amendment and then determine the meaning of the challenged statutory provision. See Scott, 322 S.W.3d at 668. The First Amendment, as applicable to the states through the Fourteenth Amendment, prohibits laws that abridge freedom of speech.
Having set forth the protection provided by the First Amendment, we consider the plain meaning of the acts proscribed by
As set out above,
As for
As noted above, the State has authority to regulate and proscribe certain categories of speech because those categories are not protected by the First Amendment. See Stevens, 559 U.S. at 468-69; Cohen, 403 U.S. at 20. One of those categories is obscenity. See generally Miller, 413 U.S. at 24 (holding obscenity is not protected by the First Amendment). The challenged statutory provisions are not susceptible of application to communicative conduct that is protected by the First Amendment, i.e., they do not implicate the free-speech guarantee, because by their plain text they are directed only at persons who, with intent to emotionally harm another, make obscene remarks. See
Vagueness
Nuncio also challenges
A statute is unconstitutionally vague and violative of due process if it fails to provide a person of ordinary intelligence fair notice of what the statute prohibits or authorizes or encourages seriously discriminatory enforcement. Maddison, 518 S.W.3d at 639-40 (quoting Ex parte Bradshaw, 501 S.W.3d 665, 677-78 (Tex. App.—Dallas, 2016, pet. ref‘d) (citing United States v. Williams, 553 U.S. 285, 304 (2008))). In other words, a statute is unconstitutionally vague if persons of common intelligence must guess at its meaning and differ about its proper application. Maddison, 518 S.W.3d at 639-40. All criminal laws must give fair notice about what activity is made criminal. Bradshaw, 501 S.W.3d at 67 (citing Bynum v. State, 767 S.W.2d 769, 773 (Tex. Crim. App. 1989) (en banc)). However, courts do not require that statutes be mathematically precise; rather, statutes need only provide fair warning in light of common understanding and practices. Ex parte Paxton, 493 S.W.3d 292, 305 (Tex. App.—Dallas 2016, pet. ref‘d) (en banc). A statute is not unconstitutionally vague simply because the words or terms used are not specifically defined. Wagner v. State, 539 S.W.3d 298, 314 (Tex. Crim. App. 2018). Rather, words or phrases within a statute must be read in the context in which they are used. Id. Statutory provisions satisfy vagueness requirements if they “convey[] sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Id. (quoting Jordan v. De George, 341 U.S. 223, 231-32 (1951)).
When a statute does not implicate free speech under the First Amendment, a person challenging that statute for vagueness must establish it was unduly vague as applied to his own conduct. Wagner, 539 S.W.3d at 314; Scott, 322 S.W.3d at 670-71. If First Amendment rights are implicated, the statute in question must also be sufficiently definite to avoid chilling protected speech or expression, and a challenger may complain of vagueness of the statute as it may be applied to others. Wagner, 539 S.W.3d at 314; Scott, 322 S.W.3d at 670-71. As we explained in our analysis of Nuncio‘s overbreadth challenge,
Applying the plain language of
Moreover, even if the First Amendment is implicated, the statutory provisions cannot be interpreted to suggest that obscene comments made and heard in the hypothetical ether are prohibited. Rather, to sustain a prosecution, it is clear a person must engage in obscene communication with a particular person with the intent that the particular person feel harassed, annoyed, alarmed, abused, tormented, or embarrassed. Accordingly, we hold
Request to Overturn Miller v. California
In 1974, the Supreme Court set out a test for obscenity in Miller v. California. 413 U.S. at 24. The Court held material is obscene when: (1) an average person applying contemporary community standards would find that when taken as a whole, the material appeals to the prurient interest; (2) the material describes or depicts, in a patently offensive way, sexual conduct specifically defined by applicable state law; and (3) the material, when taken as a whole, lacks serious literary, artistic, political, or scientific value. Id. Nuncio contends this standard is no longer “valid, accurate, and/or an effective test for distinguishing obscenity from protected speech” in the Internet era and asks that we reject it in our evaluation of his challenges to the constitutionality of
Since Miller was decided, the Texas Court of Criminal Appeals has continuously applied its test for obscenity in addressing allegations of unconstitutionality in numerous contexts. See, e.g., Lo, 424 S.W.3d at 21 (recognizing Miller defines obscenity); Lefevers, 20 S.W.3d at 709 (recognizing Texas Legislature drafted harassment statute “with an eye toward the constitutional definition of obscenity” as set out in Miller); Davis v. State, 658 S.W.2d 572, 578 (Tex. Crim. App. 1983) (en banc) (holding that Miller sets forth “the test the States of the Union must follow when they seek to regulate or control obscenity“); West v. State, 514 S.W.2d 433, 442 (Tex. Crim. App. 1974) (op. on reh‘g) (applying Miller in determining constitutionality of Texas obscenity statute). As an intermediate appellate court, we are bound by pronouncements of the court of criminal appeals. State v. Nelson, 530 S.W.3d 186, 190 (Tex. App.—Waco 2016, no pet.) (citing Wiley v. State, 112 S.W.3d 173, 175 (Tex. App.––Fort Worth 2003, pet. ref‘d)); De Leon v. State, 373 S.W.3d 644, 650 n.3 (Tex. App.––San Antonio 2012, pet. ref‘d). Accordingly, we may not — as Nuncio suggests — overturn Miller‘s definition of obscenity. See Nelson, 530 S.W.3d at 190; De Leon, 373 S.W.3d at 650 n.3.
CONCLUSION
Based on the foregoing analysis, we hold
Beth Watkins, Justice
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