*1 that he acted manner as fairs and in such Sagebrush reasonably
lead believe question
the entities in had reference ex- properly
himself. When the record is test,
amined under the no-evidence there support than a scintilla of
more evidence findings. findings sup- These would
these
port personal judgment against Richard
C. Strauss.
We, therefore, court of conclude that the respon- appeals sustaining
civil erred points rendering a
dents’ no evidence
take-nothing judgment parties. as to these appeals The court of civil not consider did Roberts, J., dissenting filed a respondents’ points complaining other J., Phillips, joined. rehearing in which on factually sup- the evidence is insufficient port jury findings. these crucial Inasmuch Clinton, J., dissenting opinion filed a are insufficiency points as these factual J., Onion, joined. which' P. rehearing in jurisdiction within the exclusive appeals, courts of civil the cause remand
to that court for determination of such
points. Leasing, Custom Inc. v. Texas Dallas,
Bank & Tr. Co. of
(Tex.1973). ap- judgment civil the court of
peals is reversed and the cause is remanded that court for proceedings further with this opinion.
inconsistent
Shirley KRAMER, Appellant, Texas, Appellee. STATE
No. 57355. Texas, Appeals
Court of Criminal
Panel No. 2.
April 1979. Rehearing
On Oct. *2 ODOM,
Before and W. C. DA- PHILLIPS VIS, JJ.
OPINION PHILLIPS, Judge. appeal
This is an from a conviction for Code, V.T.C.A., Penal Section harassment. 42.07(a)(1). assessed at six Punishment was imprisonment, imposition of months’ but suspended appellant sentence was while probation. placed V.T.C.A., Code, in 42.07 Penal as fol- part provides to this relevant cause lows: he
(a) if person A commits an offense intentionally: (1) by telephone or communicates obscene, or vulgar, profane, and a coarse language indecent or in action offensive manner recklessly intentionally, knowingly, or recipient or in- annoys or alarms annoy recipient; tends to or alarm (c) is a An offense this section under B misdemeanor. Class harassment provision Under prove must the elements statute the State (3) (1) (2) intentionally commu- are (4)(a) writing) (by telephone nicates lan- obscene, or indecent vulgar, profane, man- (b) in a coarse and offensive guage or intentionally, (5)(a) by such action ner and alarms annoys or knowingly, recklessly (b) annoy or recipient or intends alarm appellant charging
The information part: cause recites in relevant in this ..., on or . .. SHIRLEY KRAMER A.D., December day about 31[st] ..., knowingly and unlawfully did Dallas, Chitwood, appellant. Paul J. writing in intentionally communicate with anoth- Wade, manner Henry Atty., M. Dist. John H. coarse and offensive KEISER, by this Smith, er, namely; R. R. ANNE Hagler, Andy Anderson alarm and Jr., Dallas, Hut- Asst. Dist. Robert action did intend to Attys., ANNE Austin, said tash, annoy and Atty., for the State. did alarm State’s KEISER, acknowledged recipient, said written com- She also being following: girlfriend of her husband’s. munication of the tenor was a former testimony next introduced State Felker, criminalist with the Dallas Harry Baby Problem Solved! Investigation Laboratory, County Criminal ques- in the examination of specialized who *3 -With this beautiful He testified that he was tioned documents. 1, 2, 4, Exhibits of the that State’s ALL METAL typed typewrit- on the same and 5 were all CASKET-VAULT COMBINATION er. He further testified that the handwrit- the ing in Exhibit No. 3 matched State’s
CRYPT-a-CRIB
handwriting
came from the same indi-
and
provided
exemplars
the
found in
vidual who
P. 0. Box 11074
Subsequent testimo-
Exhibit No. 6.
State’s
appellant provided
that the
ny established
Cincinnati, Ohio 45211
No. 6.
the
Exhibit
On
exemplars
State’s
By
charging
appellant,
so
the
the State was
cross-examination,
acknowledged
Felker
1,
obligated
2, 3, 4b,
prove
elements
the
-ups
produced
that no
were
blow
5b as set forth above.
a
typed print,
given
that he was never
Appellant’s
ground
fifth
chal-
of error
the
not determine
model
typewriter, could
lenges
sufficiency
of the evidence to
producing
typewriter
of the
used
sustain the judgment of conviction in this
type-
exhibits referred to or whether the
chief,
cause. The
in its case in
called
electric. He testified
writer was manual or
witness,
Keiser,
the complaining
Anne
who
made but that
comparison
that no ink
was
testified that she was the wife of one John
letters
compare
spacing
he did
between
Keiser who had
him a
on
son December
letter. He testified he did not
each
22, 1975. She returned to her home at 526
various ex-
know who the author of these
Shelley Court in Duncanville on Christmas
examination, the
hibits was.
redirect
On
1975,
Day,
31,
1975. On December
she
particular type-
witness testified that
found State’s Exhibit No. 1 in the mailbox
character-
writer involved had an individual
postcard-type
which was a
communication
capital
type
istic in
letters would
containing the above-quoted message that
case
position
a little lower than the small
prosecution.
formed the basis for this
She
letters on the same line.1 After establish-
2,
type-
also identified
State’s Exhibit No.
ing
handwriting exemp-
the source of the
envelope
written
her
addressed to
husband
6,
Exhibit No.
the State
lars
State’s
3,
which contained State’s Exhibit No.
appellant
rested and the
made his first mo-
person signing
handwritten letter from a
that the
alleging
tion for instructed verdict
“Shirley.”
also identified
Ex-
She
State’s
prove
failed to
the essential elements
State
4,
typewritten envelope
hibit No.
another
charging
appellant.
of the information
addressed to her husband which contained
After the State
This motion was denied.
5,
typewritten
State’s Exhibit No.
letter
testimony
John
introduced rebuttal
from
signed by
Keiser,
husband,
any
also
“Shirley.”
testified that
which did not shed
She
annoyed
State’s Exhibit No. 1
and alarmed
of this
further evidence on the elements
cross-examination,
offense,
her.
her motion
appellant
On
she testified
renewed
again de-
nothing
that there was
or offensive
verdict and it was
coarse
instructed
sufficiency
postman
Appellant challenges
in the manner in which the
deliv-
nied.
conviction
ered
Exhibit No. 1 to her mailbox. of the
to sustain this
State’s
evidence
testimony
produced
pre-
typefacing
as to the
1. We note that the
in the statement
that no
possesses
de-
the linear deviation
of facts before us
this same charac-
cise measurements of
teristic of linear deviation. We further note
scribed
the witness.
ground
agree
relating
under
fifth
We
offensive
her
error.
manner” as
to the mode
delivering
offending message.
with her contention and reverse.
reasons,
foregoing
judgment
For
This case was based
circumstantial
light
In
of the
of conviction is reversed.
connecting
evidence. The
evidence
Supreme Court decisions in
United States
postcard containing
S,
Burks v. U.
437 U.S.
S.Ct.
annoying
alarming message was
(1978),
Massey,
L.Ed.2d 1
and Greene v.
testimony
questioned
documents ex-
(1978),
er it where nor was established it banc. Before court en was appellant located or whether the was OPINION MOTION ON STATE’S typewrit- with access a one to such FOR REHEARING er. deficiency enough This alone to sus- tain case. reversal of this Steinhauser See DOUGLAS, Judge. Tex.Cr.App., 577 S.W.2d is an from a appeal This conviction V.T.C.A., harassment, Pe- as denounced jury’s
There to is no evidence sustain the Code, 42.07(a)(1). jury The as- nal appellant conclusion that intended to probated. punishment days, sessed the written or alarm of Code, V.T.C.A., submission, communication. Penal Sec- original panel a of this Upon found, judge dissenting, 6.03(a) tion one defines intent as conscious Court support insufficient that the evidence is objective or desire cause result the evi- judgment. We now hold that negated reached. Such conclusion the conviction. support dence is sufficient the fact was that the communication ad- wife, dressed to John M. Reiser and not his testimony of The uncontroverted the complaining witness. The State had establishes that complainant Anne Reiser available 'element the alternative six re days on December after hospital with her turning home from the intentionally, knowingly, recklessly an- son, complainant newborn found State’s noying alarming recipient. They # 1 the home Exhibit in the mailbox of pursue chose to ele- more restrictive The where she her husband resided. and ment and the evidence fails to establish it. to her hus postcard, is a addressed exhibit It is undisputed complaining that wit- band, Reiser, following mes with the John recipient, though ness even was indeed newspaper from sage, apparently taken not the intended advertisement, to the back: affixed Further, part actus reas allege offense the chose the man- State “Baby Problem Solved! delivery ner the communication’s beautiful with this it was “coarse and offensive.” The METAL ALL the com- testimony in this cause shows that through munication was delivered the Unit- CASRET-VAULT COMBINATION nothing ed States Postal and that Service CRYPT-A-CRIB delivery manner of its was “coarse or Box 11074 P. 0. mes- offensive.” the contents of a Since Cincinnati, 45211” Ohio sage that offends this is dealt with statute an specific provision, alternative and sending is the action postcard complained must “a coarse in the information. construe the element of State’s Duncanville, appeared one light Viewed in a most favorable to the the Reisers to jury, testimony verdict of the work day place of John Reiser’s outside Felker, Jr., Harry Keisers and of L. repeatedly near subsequently and both examiner, expert establishes the document and outside the Reiser place his of work following: home, was aware of appellant schedule and of Mrs. Reiser’s Reiser’s work
Appellant first met Reiser in John pregnancy. apartment when both lived the same Honolulu,
building in Hawaii. Reiser and of con- Appellant’s long standing course appellant together period lived for a of duct, knowledge of Anne with her combined months, appellant almost four after which the use of the same pregnancy and Reiser’s left appellant Hawaii. When returned to typewriter address each of the State’s Hawaii, already Reiser had met Anne Reis- exhibits, other rea- is sufficient to exclude er appellant and no further contact with than that sent sonable inferences was initiated Reiser. prose- postcard that is the basis of May, were Reisers married in 1971. cution. August, Between that time and when knowledge John Reiser’s Appellant’s Duncanville, appellant the Reisers moved to knowledge that she work schedule and her repeatedly the Reisers observed Reiser without could send letters to John quarters. near living Appellant their also seeing prior contents Anne Reiser their wrote frequently to John Reiser. *5 them, demonstrat- perusal her husband’s correspondence The continued after the by appellant’s prior use of “restricted ed Duncanville, Reisers moved to to the extent writing to John delivery” postal service in that, although disposed much of it was Reiser, appellant’s argu- make untenable Reisers, by the grocery two or three sacks may card not have postal ment that the of mail were made to the Dallas available Reiser, Anne but by been meant to be seen County attorney’s district office. Included eyes only. may have been for John Reiser’s among correspondence that were two let- ters, one typewritten longhand, question message and one in of whether the on signed “Shirley”, both typewrit- and their annoy and postcard was intended to ten envelopes, addressed John Reiser and baby, a newborn six alarm the mother of delivery.” marked “restricted Those letters hospital, is answered days home from the envelopes and were admitted in evidence. by message itself. The content of both letters demonstrates State, (Tex. 698 In v. 564 S.W.2d Sullivan by seeing intent their author to continue Court, Cr.App.1978), on motion for contacting and otherwise de- John Reiser rehearing, said: spite in attempts upon part, his described “It is well that a conviction established letters, to avoid their author. be sus evidence cannot on circumstantial Comparison handwriting of the of the not ex tained if the circumstances do longhand writing exemplar letter and of a hypothesis every other reasonable clude of the showed the letter to have amounting except guilt proof that of and by appellant. been written insufficient. strong suspicion to a is letter, Comparison typewritten State, (Tex.Cr. Flores v. 551 S.W.2d envelopes, postcard and the address of the State, v. 532 S.W.2d App.1977); Moore using sophisticat- on a letter letter basis State, 502 (Tex.Cr.App.1976); Indo v. optical comparison equipment ed revealed However, (Tex.Cr.App.1973). S.W.2d 166 typed upon that each exhibit the same was every point necessary that fact it is not machine. defend independently to the directly and conclusion guilt; enough if the ant’s it appellant,
The record shows further that by the combined threatening after for some time to follow is warranted incriminating protecting cumulative force of all the State’s interest in citizens from State, supra; Flores v. such intrusion. circumstances. State, (Tex. Herndon v. S.W.2d 42.07(a) Appellant contends that Section
Cr.App.1976)....” overbroad, viola- vague and and therefore appellant’s tive of Fourteenth Amendment case, Sullivan, In the instant Appellant vagueness bases con rights. her evidence, whole, taken as a excludes to statute tention the use certainty hypothesis moral every reasonable “alarm”, “annoy”, words “coarse” and “of except appellant’s guilt. fensive;” rejected the con This Court same Appellant contends that the information “annoy” tention as words fails to state a cause action because the Con “alarm” Section 42.07 in Collection language message complained of is sultants, (Tex. Inc. 556 S.W.2d offensive, not in itself or nor coarse Cr.App.1977). communicated in a coarse or offensive man- V.T.C.A., Code, 42.07(a), ner. Penal Appellant argues if we allow that provides: recipient any statute stand then “(a) person he commits an offense if recipient message may decide what
intentionally: offensive”, and that thinks “coarse ordinary intelligence is there “(1) by telephone or in communicates guide fore without to the conduct forbid obscene, profane, or vulgar, gravamen of den Section 42.07. But the indecent or language in a coarse and 42.07(a) as charged the violation of Section offensive manner action in the information is the intent to recklessly or intentionally, knowingly, of a “coarse and offen and alarm means annoys recipient or in alarms the (cid:127) alternative, message. sive” to annoy recipient; ..." tends or alarm the case, require charged in the instant would at least reckless in actual actor be Appellant proscrip- contends to fit alarming his ly annoying *6 42.07,supra, language tion of Section the of is no message. coarse and offensive There message the delivery or its manner of must over in the statute for a vindictive or room be coarse and the sub- offensive because ly to an offense recipient sensitive create proscription stantive of sections were the offen own in the coarseness or his belief vulgar, profane, limited to or inde- obscene provisions the message. siveness of a When language, cent while “coarse offensive statute, including re culpability of only manner” refers to the means deliv- a of quirement, together, are read ery. We decline to follow such a construc- readily understand ordinary intelligence can tion. proscribed. what is applied as hold that statute We 42.07(a) unconsti Neither Section to one requires this case that communi reversing the con tutionally In overbroad. by telephone cate with or writ another in jacket person who a bear viction of a wore ing “in a coarse and manner” offensive “_the inside a draft” ing the words part with intent on to alarm of courthouse, said: Supreme Court A seemingly group sender. harmless of likely actually “. . . No individual recipi words can be their intended cause have reasonably regard- present be could distress, great ent intent can be that a appellant’s jacket as ed the words The instant great carried out to effect. . . personal insult.. direct ease is the situation where the precisely alternative of “coarse and offensive man a “Finally, arguments
ner” is in before this necessary rights to vindicate claim been made of the recipient spite messages and the Court much has
867
than,
example,
expres-
courthouse corridor
Cohen’s distasteful mode
Park, surely it
upon unwilling
strolling through
or unsus-
sion was thrust
Central
viewers,
being
free
pecting
might
and that the
like the interest
nothing
State
legitimately
therefore
as it did in
in the confines
expression
act
from unwanted
”
other-
protect
order to
the sensitive from
...
v. Cali
own home.
Cohen
one’s
exposure
appellant’s
15, 22,
1780, 1786,
wise
fornia,
unavoidable
403
91 S.Ct.
U.S.
course,
protest.
crude form of
(1971).
Of
ing
dependent upon
in other
infirmity in
We find no constitutional
showing
privacy
inter-
substantial
42.07(a)
applied in this case.
as
ests are being
essentially
invaded in an
Any
intolerable manner.
broader view of
trial
Exception is taken to the
authority
effectively empower
would
jury panel
court’s refusal
to shuffle
majority
simply
to silence dissidents
*7
that
voir
The record shows
before the
dire.
personal predilections.
a matter of
panel
during the voir dire.
the
was shuffled
regard, persons
“In this
confronted
is made or
showing
appellant
No
of harm to
jacket
in
quite
Cohen’s
were
dif
error,
attempted.
any,
if
was harm
The
than,
posture
say,
subjected
ferent
those
less.
the
to
raucous emissions of sound trucks
failure of the
Appellant contends the
blaring outside their
Those in
residences.
“annoy” and “alarm”
court
to define
Angeles
the Los
courthouse
effec
could
charge
in its
to
“coarse” and “offensive”
tively avoid further bombardment of
3.01,
error. Article
jury
the
was reversible
simply by averting
their
their
sensibilities
V.A.C.C.P., provides:
And,
eyes.
has
may
while
be that one
words,
in
and terms used
recognizable
phrases
“All
a more substantial claim to a
understood
privacy
walking through
interest when
are to be taken and
Code
directly;
only
imply
over
we mean
1. We
that a
could
than handed
do not
communication
place person-
42.07(a)
writing
if
the
must be delivered to a
not be within the ambit of Section
left,
complainant.
g.,
complainant’s
al
e.
desk at work rather
acceptation
in their usual
in common lan-
ON STATE’S
DISSENTING OPINION
guage, except
specially defined.”
REHEARING
where
MOTION FOR
King
The contention
no merit.
v.
has
ROBERTS, Judge, dissenting.
State,
(Tex.Cr.App.1977).
869 alleged to have been committed in Dallas authorize culpable conviction on mental Texas, County, day on or about the 31st offense, states that do not constitute an or December, charge 1975. To this the which alleged pleading, were not in the pleaded Defendant has guilty. not both, fundamentally are defective. Hutch State, (Tex.Cr.App. ins v. 590 710 S.W.2d give “I you now applies law that 1979). State, generally See Sattiewhite v. this case: (Tex.Cr.App.1980); S.W.2d Cumbie “A person commits the offense State, (Tex.Cr.App.1979). S.W.2d harassment intentionally if he communi- writing cates in in a coarse and offensive In type required cases we have not manner and intentionally this action harm, a showing although some members or knowingly annoys recipi- or alarms the of the impose require- court would such a ent. See, g., ment. e. Dowden v. [Statutory ‘intentionally’ definitions of (Tex.Cr.App.1976). showing S.W.2d 5 If a ‘knowingly’ were given.] required harm were before we would reverse, apparent it would be in this case. “Therefore, you if believe from the evi- The communication was not addressed to dence beyond a reasonable doubt that the Keiser, alleged Anne who was Defendant, to be Kramer, did, Shirley in Dallas recipient; it was addressed her husband County, Texas, day on or about the 31st jury easily John Keiser. The December, 1975, could have knowingly or inten- believed that the tionally only intended to communicate in a John, coarse communicate with John manner, and offensive or to to-wit: but that she knew that she would communi- cate with or annoy Anne. a state of Such facts would not constitute the offense which alleged by in this in- State formation, yet the jury was authorized to convict on it. fundamental, charge reflects reversi-
ble error. The court not even has addressed it.
II. panel was correct in holding that there such was no evidence of “in intentionally action communication or know- ingly manner,” annoyed or coarse .. . recipient, although explana- alarmed the Keiser, Ann you will find the tion of the meaning phrase Defendant of that was not guilty. exactly history phrase correct. The describes, demonstrates that “coarse” you believe,
“If do not so you or if have must have Legislature been intended thereof, reasonable you doubt then will describe, might what colloquially be find the Defendant guilty.” dirty called language. Only by ignoring It will be jury noted that the was autho- this history can the court other- conclude rized to convict if the appellant knowingly wise. communicated, offense, which is not an The antecedent intentionally present harass- communicating pro- scribed; and the ment statute jury was authorized was Article of the old (1965 Laws, convict if the appellant knowingly annoyed Penal Code Texas General recipient, 575), alarmed the chapter which was not which made it an offense to alleged in the Charges obscene, information. “any use vulgar, profane, or inde- *9 In- language through any
cent or tele- comment in American Law over consult the stitute, phone.” Code: Tentative Draft Obviously, this statute dealt with Model Penal omitted): (1961) (footnotes dirty No. language. which easy to select terms “It is not replace “vulgar, profane, To the old term unjustified public annoy- will cover such obscene, language,” or indecent the drafters right say to safeguarding ances while of the new chose term Penal Code * * * things. ‘pro- Public unpopular obviously “coarse and offensive manner.”2 statute frequently penalized by fanity’ The clear drafters made it that “coarse” ordinance, or the Advisory but Commit- refers to dirty language: close tee that this term came too believed “The obviously terms ‘coarse and offen- ‘sacrilege’ to ‘Indecent’ making criminal. precise sive’ committee as seemed to the narrow, thought if it to be is either too be permits. as the of this offense nature obscene, uncon- possibly or limited to * * * (The preferred committee The stitutionally vague if limited. not so obscene, term terms such ‘coarse’ to (b) suggested ‘coarse’ in clause word lewd, indecent, profane, because we to include makes it clear that intend term, others, is unlike the devoid of ar- ... al- obscenity, as well as scatology clutter, chaic overtones that rather than precisely though impossible specify it is clarify, its meaning.)” shocking degree impropriety ” Texas, Bar Texas A State Penal Code: . . language required.. Proposed (Final 1970). Revision 292 Draft obvi- term “in a Although the coarse they The in- drafters also indicated that ously manner” was intended offensive change scope tended no in the of the harass- obscene, replace “vulgar, profane, the term law, (as noted) ment have pun- which saw language,” Legislature or indecent dirty language: ished fit in the harassment statute include section, pri- “This which is concerned “in a both term and the new term the old marily harassing tele- with obscene and Searcy & coarse manner.” S. and offensive calls, phone changes Penal art. 476 Code Patterson, Commentary,” J. in “Practice It does respect. punish one not Penal Annotated: Vernon’s Texas Codes obscene, or ‘vulgar, profane, the use of Legisla- (1973), suggest Code 168 language’ telephone indecent over a un- the new forgot ture delete apparently likely less this or language is Legis- unlikely, term. This seems since alarm the In the committee’s term to paid enough lature attention view, morality persons who choose Perhaps the “obviously.” delete the word with each other in crude communicate enough to retain Legislature was cautious language telephone should over validity old in case proved term of be the law.” concern criminal mus- pass new constitutional term failed to ter. supplied). Id. at 300 (emphasis (Id. clear acknowledged rate, it expressly history drafters At makes any 291-292, In a 300) language. reliance the Model to dirty their refers “coarse” communi- disorderly this one for prosecution
Penal Code’s harassment such as manner,” statutes, cating conduct which use the term “of- a coarse and offensive “in communica- proof there fensively Therefore is useful must be coarse.” ner, intentionally, 42.07(a)(1) know- action 2. The draft version of section (Final recklessly annoys Proposed ingly, re- alarms the or Texas Penal A Revision Code: ” 1970) cipient; Draft ... . was: “(a) corporation An individual or commits constitutionality been had the old term intentionally: an offense if he in, upheld g., 450 S.W.2d Schuster e. “(1) by telephone in writ- communicates 1970). (Tex.Cr.App. obviously ing in a man- coarse and offensive *10 1.05(b). tion any unaccountably ignores was both coarse and offensive. If The court history beyond plain language Astonishingly these it turns to a of the statutes. needed, statute be not even Article applicable: drafters of the term statute that Procedure, may quoted be 3.01 of the Code of Criminal their comment to, applies only which its own terms “All disorderly (which conduct statute included words, phrases and terms used in this Code term): the same question appears ..The term in view, “In the committee’s it have would Code, in the Penal not Code of Criminal inappropriate prohibit been all ‘offen- Procedure. public sive’ utterances in a place, since might term have been construed to own, terms, inapplicable Even Arti- prohibit expression ideas, of offensive carry day majori- cle 3.01 cannot for the * * a constitutionally protected activity. ty. requires It words “to be taken and Similarly, in the opinion, committee’s it acceptation in understood in their usual would have been inappropriate prohibit language.” common What does “coarse” mean, all public ‘coarse’ utterances in place, according to the court? The language since coarse hint of an answer the court’s statement is not offensive in that, precisely certain “The instant case is the situ- opera- social contexts. The two ation where the alternative of a ‘coarse and tive terms therefore limit each other. An necessary offensive manner’ is to vindicate utterance, gesture, display must be rights spite messages both coarse obviously offensive be- protecting and the interest citi- State’s punished.” fore it can be “Coarse,” then, zens from such intrusion.” Texas, State Bar of Texas Penal Code: A must we believe “spiteful”; mean are to Proposed (Final 1970). Revision 292 Draft acceptation “coarse” in usual Accord, Institute, American Law Model Pe- language “spiteful.” common Proposed nal Code: Official Draft 224 “ (1962) added; (“Offensively” was ‘Coarse’ alone is insufficient many groups since in III. settings language coarse is not offen- Act, The Code Construction Section hearers.”).
sive to the 3.01(1), presumption Leg- creates a that the case, In this the communication of the islature intended to enact a statute Crypt-a-Crib may advertisement have been was in compliance with the United States offensive to Anne Keiser. may By It have Constitution. its construction the court spite statute, been a message, could have it has says. as the court saved but But it was chosen coarse-dirty vague to make the statute over- therefore —and it did not broad. fall within the ambit of law, statute. As a matter of state begin I with a word about stare decisis proof has failed to show an offense. disposes area. The court of the conten- court entry should direct the judgment of a “coarse,” “offensive,” “annoy,” tions that acquittal. vague citing and “alarm” are Collection Consultants, State, Inc. 556 S.W.2d (Texas The Code Construction Act Re- (Tex.Cr.App.1977). purported That case vised 5429b-2) pro- Civil Article Statutes “annoy” hold that and “alarm” are not vides that may legislative consider histo- vague, actually but it never addressed the (Sec. ry 3.03), and that words that have First, opinion things. issue. The did two acquired particular meaning, whether quoted in full the in Schuster v. legislative otherwise, definition or shall be (Tex.Cr.App.1970): S.W.2d (Sec. 2.01). accordingly construed These sections of the Code Construction Act have ground “In her sole of error specifically applicable been made constitutionality to the Pe- of Article challenges the V.T.C.A., Code, nal Code. supra. Penal *11 make, State, Tex.Cr.App., pellant ignoring v. did while the
“In Alobaidi 433 not 440, this Court in an one he did make. The does not S.W.2d Woodley argue recipient message may the con- that of Presiding Judge upheld “any recipient We what is ‘coarse stitutionality of said statute. adhere decide that thinks Majority Opinion at 866. to that also LeBlanc v. or offensive.’” decision. See State, that, particular “This Tex.Cr.App., argument 441 847. As His is stat- S.W.2d it, view an such statute violative of fails to what will constitute is not ute advise Amendment, question the First States offense for the of wheth- United it leaves 8, I, up or Article Texas er or not an is committed Constitution Sec. offense Constitution, annoyance Ap- or of the recipient.” Vernon’s Ann.St.” alarm (emphasis supplied). 7 pellant’s brief at Collection reliance on Schuster Consultants’ same appellant expressly The relies on the sequitur; vagueness is a non is a Four- by Prof. in “The argument made Steele (due problem teenth process) Amendment Penal on First Impact the New Code is disposed which First Amend- not Freedoms,” Jour- Amendment 38 Texas Bar ment case. nal, 245, (1975): 253 thing The second that Consult- Collection “In to the First addition obvious ants did was to cite LeBlanc v. 441 difficulties, 42.07 Amendment (Tex.Cr.App.1969), S.W.2d 847 a case which vagueness like case looks a textbook sequitur. entirety is another non its requires 42.07 and overbreadth. Section 851): holding (441 was S.W.2d at of the communication remaining ground “The reversal only annoyed be alarmed. But or presents Art. 476 contention that annoy- recipient’s manner in which the V.A.C.P., defining charged the offense recipient’s is ance can be known information, complaint is void Every person effect. statement to that vague because too indefinite. annoyance, unique has his scale of own 476, “The su- constitutionality of Art. that scale and accurate determination of pra, upheld by was this court in Alobaidi impossible judge.” State, Tex.Cr.App., v. 440.” 433 S.W.2d problem This was the that afflicted nothing vagueness: to do Alobaidi had Cincinnati, City ordinance Coates only question there whether could 611, 1686, L.Ed.2d 214 91 29 U.S. S.Ct. exception be a statutory for business calls. an offense (1971). The made it ordinance words, response In other this Court’s on a persons for three or more assemble vagueness attacks on this statute and its sidewalk, etc., them- there conduct “and predecessor has been cite irrelevant cases persons annoying in a selves manner unspoken without further discussion. The adjacent build- passing by, occupants principle deciding this method of behind today, ings.” Just as this court does that, cases is if kind constitutional one that, “The word Supreme held Court Ohio rejected, attack on has a statute been all well under- ‘annoying’ widely used and other constitutional attacks can be kinds of word; necessary guess stood is not it rejected * without discussion. Stare decisis * * of con- meaning. standard [T]he not operate does in this fashion. See Com- dependent specifies which duct Statute,” ment, “The Texas Harassment sensitivity....” each upon complainant’s (1976). Instead of S.Tex.L.J. 294-295 Coates, 21 Ohio St. City of Cincinnati v. (or continuing illogical analysis lack of holding (1970). In N.E.2d up analysis) today, the court take should unconstitutionally the statute was vagueness the merits of the contention. at (402 said U.S. vague, Supreme Court 613-614, 1688) (footnote ques- omit- vagueness at court also avoids S.Ct. ap- ted): by refuting argument tion
“But the court upon did not indicate being vague, Aside from the statute is sensitivity whose a violation does de- grossly overbroad. A statute is void for pend sensitivity judge overbreadth if “it offends the constitutional —the jury, sensitivity arresting offi- principle governmental that ‘a purpose to cer, or the sensitivity of hypothetical prevent control or activities constitutionally reasonable man. subject regulation may to state not be sweep achieved means which best,
“We are
unnecessar-
relegated,
thus
ily broadly
thereby
words of
invade
the ordinance
the area of
itself.
If three or
*12
”
people
protected
more
together
meet
a sidewalk
freedoms.’
on
[First Amendment]
corner,
Koota,
241, 250,
or street
they must conduct them- Zwickler v.
389 U.S.
88
so
391,
selves
as not to annoy any police
396,
(1967).
offi-
S.Ct.
“Coarse” is also left If it can “[T]he “spiteful,” mean so broad that who it includes callers writ- knows what else it [and People every right can mean? who have intelligence of common and reason to ers] must necessarily guess intentionally meaning, knowingly annoy at its or alarm job guessing has been made harder ...” 38 Texas Bar Journal at today. (1975). may vague
4. The term “offensive”
be said to be
reason;
same
for much the
offensive to whom?
point
Going
is
an advertisement.
door-to-door
not that
has
activity
pro-
is
which is
right
the Reisers.5 with handbills
bothering
continue
Amendment, and the
punish
tected
the First
point
is that
in order to
punish
city
that the
could not
it.
court held
appellant for her
activities the court
bizarre
city
punish
could
The court said that
area of
has broadened
statute into an
those who
at a home in defiance
called
speech
protected by
First
will
the occu-
previously expressed
decision,
today’s
Amendment. After
at 865.
pant.
U.S. at
S.Ct.
example, anyone
who writes
letter to a
to punish
does not
a state
Rowan
authorize
public
vigorous disagreement
official
home,
speech
it is
protected
if
sent to
performance
official’s
his duties
today. Rowan and Martin
the court holds
subject
jailed.6
being
oper-
are the
So
proposition that a householder
stand for the
intentionally
mail out
ators
charities who
keep
speech out of his home
can
unwanted
alarming pictures
orphans
starving
Asian
desire;
by giving
right
his
notice of
in order to raise
So are anti-abor-
funds.
speech
recipient.7
personal
receive
propagandists
alarming pic-
tion
who mail
*13
of
Any
tures
aborted fetuses.
of these let-
misunderstanding of this doc-
The court’s
ters
deemed
and offensive”
could be
“coarse
of
misapplication
trine
in its
is manifested
today’s
under
decision.
15,
California, 403 U.S.
Rowan and Cohen v.
(1971).
1780, 29
L.Ed.2d
S.Ct.
finds a “constitutional” basis
court
is not over-
court holds that
this statute
misinterpreting
v.
by
for this
Rowan United
free-
First Amendment
broad because the
728, 90
Dep’t,
States Post Office
397 U.S.
speech
not intrude into
may
dom of
1484,
(1970).
S.Ct.
to be
unwelcome
than he
PHILLIPS, J., joins in this dissent.
opposite
has
his home.
This is
CLINTON,
dissenting.
Judge,
court,
what Cohen and
held. The
Rowen
began
argument by saying
which
its
that
That
us is at
the statute before
once
right
privacy
sanctuary
in the
of the
impermissibly vague and overbroad on its
overbreadth,
saved this
home
statute from
ambiguity
face is manifest.
of the
Patent
by holding
right
ends
of privacy
is
varying interpre-
statute is revealed
in the
rather than the home.
competing
tations and
constructions of
of the
phrases
opinions
majority
in the
thing
The insidious
sequi-
about
non
Judge
Similarly, they
Roberts’ dissent.
say
tur
that the
on to
goes
court
hypothesize
considerations or
limiting
ex-
prosecution may
writings
be had for
“deliv-
that serve to
pansive applications
demon-
recipient’s
ered to the
or person.”
home
Needless to elabo-
strate
overbreadth.
statute,
supposed
Therefore this
which
rate,
vagueness
penal
and overbreadth
be free from
pro-
overbreadth because it
proscription
implicates
communication
home,
the sanctuary
may
tects
also
erode
freedoms which
soon
fundamental
prosecute
be used to
writings delivered to
The Court should hold
thrive
discourse.
person.
every
And that
written
mes-
unconstitutional, and
the statute
be done
sage, for
way
there is no
to deliver a writ-
society.
with its
threats to
See State
*14
ing other than to the person.8 The “sanctu- Blair, Ore.,
601 P.2d
26 CrL 2331
of
ary
justification completely
home”
(1979), holding
by
an harassment
com-
disappears in the
holding.
course of the
munication statute invalid.
gave
we
proper
If
consideration to the
so,
Refusing
majority
will rue
to do
vagueness
questions,
and overbreadth
we
day
preoccupied
it carries. So
with
dirty
would hold that “coarse” involves
lan- denouncing what it
as a communication
sees
“offensive,”
guage and that
“annoying” and
by spite,1
majority
motivated
tortures
“alarming”
judged by
must be
the stan-
statutory
terms such
“manner” is
so,
dards of a
If
person.
reasonable
we did
Assuming
turned into a
of mind.2
state
might
we
save this
As it is
arguendo
statute.
may
that the statute
be constitu-
gloss
sanction an
speech
tionally applied,
majority’s
intrusion on free
and we
rules
many
out
conceivable “coarse and offen-
practically
(which
invite a federal court
ways
acceptable mean-
acting-the
sive”
of
respect
would
any correct constitutional
ing
by
are not motivated
“manner”-that
it; see,
g.,
construction that we
e.
gave
spite
feeling.
or other ill
To twist behavior
v. Kentucky,
Colten
407 U.S.
92 S.Ct.
uphold
to
into attitude in order
convic-
(1972))
search into the
intent,
statute,
convincing
not
her
if she did
enactment of
is
“distress.” Whatever
providing meaning
phrase.3
by
same
42.-
proscribed
§
in
to this
not act in a manner
me,
least,
that ‘coarse’
offense
07(a)(1)
guilty
To
it is not “clear
she is
of the
not
dirty language.”
refers to
ends
charged.
up approv-
What the Court
penalty
a criminal
for
ing
imposition
of-
single
sentence that states the
mind-“spite”-
having
state of
a certain
communicating
fense in
“in vul-
terms
in
engaging
proscribed con-
rather than for
obscene,
gar, profane,
language
or indecent
duct.
or in a coarse and offensive manner” be-
careful
lies the notion that an otherwise
constitutionality of
As to the facial
really
he
scrivener5 used “manner” when
42.07(a)(1),
penalizes
is a commu-
what
§
Rather,
meant
it would seem
“language.”
its
two means that in
nication
one of
e.,
he
wrote i.
that one
intended that which
is intended to or results
content or manner
offense,
per-
paraphrasing
it as
commits
The means are
annoyance
or alarm.
here,6
tinent
when he
communicates
writing-press;
telephone-speech-or
a coarse and offensive manner
the manner
“dirty”
be
or
content must
thereby
intends to
does
prescribed
That these
coarse and offensive.
alarm.
manner
commu-
means and the described
very
es-
nicating--“communicating,”
key stat-
interpretation
Given this
of the
Amendment and Article
sence of the First
term,
utory
agree
Judge
I
Roberts
I,
Rights-may
Bill
not
8 of our
proof
offense
failed
show an
constitutionally
by law cannot be
be denied
committed,
dispatching
clipped
actual
disputed. Only when intended or
(that
published
advertisement
is itself
communicating begins
consequence of
speech)7
exercise of commercial free
af-
speech consti-
become more conduct than
regular postcard
simply
fixed to
Still, as
permitted.
tutional
regulation
communicating in a coarse and offensive
decisions of
made clear
authoritative
manner-regardless
spiteful
attitude
courts,
discussed and
many which are
our
sender or the distressful reaction
*15
III of his
in Part
by Judge
cited
Roberts
majority
egregiously
its
errs
may and
some citizens
dissenting opinion,
finding
interest
the State of
that an
and offensive
do communicate in
coarse
pro-
is “in
Texas advanced
this statute
annoy or
intending
while to
all the
tecting
.
...
intrusion” manner
[against]
citizens ..
Criminalizing
as
as
them is
unwise
“spite messages,”
compounds
alarm.8
from
it
by upholding
error
this conviction on the
is unconstitutional.
alleged
persuasion
6.
nor contended here
3. The weakness of
comes from its
It was not
be,
reasonably
focusing
it
could
on what
drafters of the earlier
as indeed
published
penal
proposed
advertisement
revi-
model
sion of our
code and the 1970
the words
obscene,
intended,
they
“vulgar, profane,
penal
or inde-
code indicated
amount
'
history
language.”
cent
rather than
made
Thus,
Legislature tending to show its intent.
suggestion by
Virginia,
we are left with a
the commenta-
Bigelow
95"S.Ct.
7.
421 U.S.
v.
Legislature
forgetful
(1975).
ries that the
thought
and a
4. All political dent tract charitable sorted exhortations home or at front door. vating solicitation, indi- writer of unless otherwise plea, as- insistent cated. and damnations-all aggra- Annoying and be, they still Legislature though need not Judge the law 5. Roberts remarks that good spirit suggest expressions. I paid enough such In all the term to delete the attention to acknowledge recognize “obviously” majority phrase should word obviously in the “a coarse and extending by saying the former them that in offensive manner.” III, join I in Part dissenting reasons
stated therein well as here.
ONION, J.,P. concurs in dissent. WATSON, Appellant,
John Michael Texas, Appellee. STATE
No. 58062. Texas,
Court of Appeals Criminal
Panel No. 1.
Oct. 1979. Rehearing
On Oct. *16 proscription by telephone, expressions constitutionally of harassment whose written are Legislature protected. reached out and touched someone