Nuncio, Ex Parte Leonardo
OPINION
Section 42.07(a)(1) of the Penal Code, the obscene harassment statute, makes it an offense for a person with the specific intent to harass, annoy, alarm, abuse, torment, or embarrass another to initiate communication and, in the course of the communication, make a comment, request, suggestion, or proposal that is “obscene.”
We find that
I — Background
Leonardo Nuncio, Appellant, was charged with violating
(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:
(1) initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene[.]
(b) In this section:
(3) “Obscene” means containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation,
cunnilingus, fellatio, or anilingus, or a description of an excretory function.
Justice Rodriguez dissented. Id. at 458 (Rodriguez, J., dissenting). She agrеed with the panel majority that
We granted Appellant‘s petition for discretionary review, which raises four grounds challenging
II — Preservation of Error
Before we address the First Amendment questions before us, we begin with the threshold argument posed by the State, via the State Prosecuting Attorney‘s office, that Appellant failed to present a proper argument challenging
As we have oft-stated:
Preservation of error is a systemic requirement on appeal. If an issue has not been preserved for appeal, neither the court of appeals nor this Court should address the merits of that issue. Ordinarily, a court of appeals should review preservation of error on its own motion, but if it does not do so expressly, this Court can and should do so when confronted with a preservation question.
Ford v. State, 305 S.W.3d 530, 532–33 (Tex. Crim. App. 2009); see also Wilson v. State, 311 S.W.3d 452, 473–74 (Tex. Crim. App. 2010); Blackshear v. State, 385 S.W.3d 589, 590–91 (Tex. Crim. App. 2012); Darcy v. State, 488 S.W.3d 325, 327–28 (Tex. Crim. App. 2016); Wood v. State, 560 S.W.3d 162, 165 n.8 (Tex. Crim. App. 2018).
To preserve a complaint for appellate review, there must be a timely, specific objection and a ruling by the trial court.
[t]o avoid forfeiting a complaint on appeal, the party must “let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it.”
Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009); Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). “This gives the trial judge and the opposing party an opportunity to correct the error.” Pena, 285 S.W.3d at 464 (citing Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005)). Accordingly, a “general or imprecise objection may be sufficient to preserve error for appeal, but only if the legal basis for the objection is obvious to the court and to opposing counsel.” Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006) (emphasis in original). “Usually, for a complaint to be obvious,” there will “have been statements or actions on the record that clearly indicate what the judge and opposing counsel understood the argument to be.” Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).
In his pre-trial application for writ of habeas corpus, Appellant specifically “invoke[d] the overbreadth doctrine and challenge[d] the relevant subsections of
Furthermore, there is no doubt that the State, via the Webb County District Attorney‘s office, understood the complaint. The State‘s written response noted “Applicant argues that the statute is
unconstitutional as applied and per se on First Amendment grounds and in regards to overbreadth[.]”8 The response included an entire section dedicated to specifically arguing that “The Statute Is Not Overbroad.”9
Finally, the trial court understood the objection and ruled on it. The trial court‘s order noted that the court “considered the merits” of Appellant‘s “request that the relevant portions of the subject statute as described in the application for habeas corpus relief, including
The arguments Appellant presented in his pre-trial application for writ of habeas corpus were patently sufficient to make bоth the trial court and the State aware of his contention that
III — § 42.07(a)(1) Regulates Speech, and Scott v. State Does Not Apply
The Free Speech Clause of the First Amendment to the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech . . . .”
The State argues that
(a) A person commits an offense if, with intent to harass, annoy, alаrm, abuse, torment, or embarrass another, he:
(4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another[.]
Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec. 42.07, 1973 Tex. Gen. Laws 883, 956–57 (amended 2001) (current version at
According to the State, Scott held that intentional harassment is not speech implicating the First Amendment. The State argues that
We agree with Appellant that Scott is not controlling in this case but not for the reasons he suggests. The conduct regulated by
- causing the telephone of another to ring repeatedly,
- making repeated telephone communications anonymously, or
- making repeated telephone communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.
The same cannot be said, however, of the conduct prohibited by
Here,
Because one must examine the contents of a person‘s communication to determine if it meets
We therefore disagree with the State that Scott‘s holding, that the conduct regulated by
Conversely, the only thing
V — Overbreadth
Having determined that the First Amendment is implicated, we now turn to Appellаnt‘s argument that
Under the First Amendment‘s “overbreadth doctrine,” a law may be declared unconstitutional on its face, even if it might have some legitimate applications.
A challenge to a statute under the overbreadth doctrine is a facial challenge that can be
brought in a pretrial habeas application, and the denial of relief may be immediately appealed.
The overbreadth of a statute must be “substantial, not only in an absolute sense, but also relative to the statute‘s plainly legitimate sweep.” The statute must prohibit a substantial amount of protected expression, and the danger that the statute will be unconstitutionally applied must be realistic and not based on “fanciful hypotheticals.” The person challenging the statute must demonstrate from its text and from actual fact “that a substantial number of instances exist in which the Law cannot be applied constitutionally.”
Ex parte Perry, 483 S.W.3d 884, 902 (Tex. Crim. App. 2016).
With these principles in mind, we examine the literal text of
(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:
(1) initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene[.]
VI — “Obscene” Under § 42.07(b)(3)
Section 42.07(b)(3) provides:
(3) “Obscene” means containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function.
The court of appeals rejected Appellant‘s overbreadth challenge because, in the court of appeals‘s estimation,
The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Miller, 413 U.S. at 24 (internal citations omitted). The Supreme Court left it to the states to specifically define patently offensive depictions or descriptions of sexual conduct, but it offered “a few plain examples“:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.
Id. at 25.18 But is “obscene” under
“obscene” under
Considering the differences between the definition of obscenity under Miller and the definition of “obscene” under
We conclude, therefore, that obscenity defined by
Appellant‘s brief, in its section titled “THE STATUTE‘S OVERBREADTH IS REAL AND SUBSTANTIAL” argues that:
Because section 42.07(a)(1) is a content-based restriction on speech, it is subject to strict scrutiny, and is presumptively invalid. The State has the burden of overcoming this presumption by showing that the overbreadth is not substantial, and cannot do
so.19
It is true that a content-based restriction of protected speech is presumptively invalid, and the State bears a burden; however, that burden is for demonstrating that the restriction passes strict scrutiny. The State must show the restriction “is justified by a compelling government interest and is narrowly drawn to serve that interest.” Entm‘t Merchs. Ass‘n, 564 U.S. at 799; Lo, 424 S.W.3d at 15. Appellant‘s issue before us is whether
Due to Appellant‘s mistaken belief that the State has the burden to show that a statute is not overbroad, he makes no attеmpt to fulfill his burden to show that a substantial number of instances exist in which
Application of the overbreadth doctrine is “manifestly strong medicine” to be employed “sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973); Thompson, 442 S.W.3d at 349. Accordingly, in the absence of a showing that there is a realistic danger the statute will be unconstitutionally applied, we cannot and will not hold that
unconstitutionally overbroad. On the other hand, because
VI — Vagueness
We finally address whether
Generally, “in addressing a vagueness challenge,” courts are to “consider whether the statute is vague as applied to a defendant‘s conduct before considering whether the statute may be vague as applied to the conduct of others.” Wagner, 539 S.W.3d at 314. “A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant‘s conduct before analyzing other hypothetical applications of the law.” Id. (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)).
This general rule gives way when freedom of speech under the First Amendment is involved. “[W]hen a vagueness challenge involves First Amendment considerations, a criminal lаw may be held facially invalid even though it may not be unconstitutional as applied to the defendant‘s conduct.” State v. Doyal, 589 S.W.3d 136, 144 (Tex. Crim. App. 2019) (quoting Long, 931 S.W.2d
at 288). A law implicating First Amendment freedoms may be found facially vague without “a showing that there are no possible instances of conduct clearly falling within the statute‘s prohibitions.” Id. at 145.
Because
Appellant‘s vagueness argument specifically targets the terms “ultimate sex act” and “patently offensive” used in
We disagree that we “struggled” in Pettijohn and in Lefevers. In Pettijohn, the defendant was convicted for violating
Although
In Lefevers, the defendant told the complainant “I want to feel your breasts” over the telephone. Lefevers, 20 S.W.3d at 708. We concluded that this was not a description of an “ultimate sex act.” Id. at 712. We reached this conclusion because:
Our legislature has defined “ultimate sex act,” as used in
§ 42.07 , through a non-exclusive list. Using that list, we employ a rule of statutory construction, ejusdem generis, to determine what is meant by “ultimate sex act.” Ejusdem generis holds that “in interpreting general words which follow an enumeration of particular or specific things, the meaning of those general words should be confined to things of the same kind.” . . . Such a rule “accomplishes the purpose of giving effect to both the particular and the general words, by treating the particular words as indicating the class, and the general words as extending the provisions of the statute to everything embraced in that class, though not specifically named by the particular words.” . . . Although in the instant case, the enumerated list follows the phrase “ultimate sex act,” the same rule of construction applies.As used in
§ 42.07 , the phrase “ultimate sex act” includes “sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function.” Each of the enumerated actions involves genital contact, anal contact, or an excretory function.
Id. at 711–12 (internal citations omitted).22
Instead of a “struggle,” as Appellant puts it, Pettijohn and Lefevers show a consistent strand—descriptions of “ultimate sex acts” for the purposes of
Secondly, Appellant contends that “patently offensive” is vague. Although the term is not defined for the purposes of
It is a settled rule of statutory interpretation that statutes that deal with the same general subject, have the same general purpose, or relate to the same person or thing or class of persons or things, are considered as being in pari materia though they contain no reference to one another, and though they were passed at different times or at different sessions of the legislature.
In order to arrive at a proper construction of a statute, and determine the exact legislative intent, all acts and parts of acts in pari materia will, therefore, be taken, read, and construed together, each enactment in reference to the other, as though they were parts of one and the same law. Any conflict between their provisions will be harmonized, if possible, and effect will be given to all the provisions of each act if they can be made to stand together and have concurrent efficacy.
Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1988) (quoting 53 TEX. JUR. 2d Statutes § 186 (1964), at 280–83); Diruzzo v. State, 581 S.W.3d 788, 799 (Tex. Crim. App. 2019) (quoting Cheney). “[T]he most important factor in assessing whether two provisions are in pari materia” is whether they have “[s]imilarity of purpose or object[.]” Burke v. State, 28 S.W.3d 545, 547 (Tex. Crim. App. 2000).
The linkage in
Accordingly, the obscenity statute‘s definition of “patently offensive” should apply to
Appellant also argues, as he did before the court of appeals, that “another” is vague. The court of appeals panel split on this question, with the majority concluding that the “another” whom the defendant must intend to harass clearly must be the same person to whom the communication was initiated and to whom the obscene comment was made. Nuncio, 579 S.W.3d at 457. Justice Rodriguez disagreed, finding that the defendant could intend to harass one person but initiate communications and make obscene comments to a completely different person. Id. at 459 (Rodriguez, J., dissenting).
We agree with the panel majority. “Another” as it is used in
How would a person, intending to harass Person A, accomplish his goal by making a telephone call to Person B and then intentionally fail to hang up? The would-be harasser would have completely failed in his mission. And the Legislature would have completely failed in its mission—making it an offense to call Person B and then intentionally fail to hang up is not rationally related to the legitimate state interest in protecting Person A from harassment. See Estes v. State, 546 S.W.3d 691, 697 (Tex. Crim. App. 2018) (“The default, ‘general rule’ or ‘standard’ is that state action is ‘presumed to be valid’ and will be upheld if it is but ‘rationally related to a legitimate state interest.‘“).
Thus, “another” for the purposes of
Finally, we address the Fifth Circuit‘s opinion in Kramer v. Price, cited by Appellant‘s first ground for review, and our opinion in Long v. State, cited by Justice Rodriguez‘s dissenting opinion. See Kramer v. Price, 712 F.2d 174 (5th Cir. 1983), vacated and reh‘g granted, 716 F.2d 284, 285 (5th Cir. 1983), on reh‘g, 723 F.2d 1164, 1164 (5th Cir. 1984) (per curiam) (en banc); Long, 931 S.W.2d 285. Appellant argues that
In Kramer, the Fifth Circuit Court of Appeals considered the pre-1983 version of the harassment statute, which provided:
(a) A person commits an offense if he intentionally: (1) communicates by telephone or in writing in vulgar, profane, obscene, or indecent language or in a coarse and offensive manner and by this action intentionally, knowingly, or recklessly annoys or alarms the recipient[.]
Kramer, 712 F.2d at 176 (emphasis added). The question before the court was whether “annoy” and “alarm” were vague. Id. at 177. To resolve the matter, the Fifth Circuit looked to the follоwing language in the Supreme Court‘s opinion in Coates v. City of Cincinnati:
Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.
Id. (quoting Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971)). Because Texas courts had not made any attempt to construe “annoy” and “alarm” to reduce their inherent vagueness, and because Texas courts had “refused to construe the statute to indicate whose sensibilities must be offended[,]” the Fifth Circuit held the Texas harassment statute unconstitutionally vague. Id. at 178.
Rehearing en banc was granted and the Kramer panel opinion was vacated. Kramer, 723 F.2d at 1164. Nevertheless, we relied upon Kramer when we were faced with the question of whether the “stalking” provision of the 1993 harassment statute was unconstitutionally vague under the First Amendment. Long, 931 S.W.2d at 288–89 (discussing Kramer). That statute provided:
(a) A person commits an offensе if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he: . . .
(7)(A) on more than one occasion engages in conduct directed specifically toward the other person, including following that person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass that person;
(B) on at least one of those occasions by acts or words threatens to inflict
bodily injury on that person or to commit an offense against that person, a member of that person‘s family, or that person‘s property; and
(C) on at least one of those occasions engages in the conduct after the person toward whom the conduct is specifically directed has reported to a law enforcement agency the conduct described by this subdivision.
. . . .
(e) It is an affirmative defеnse to prosecution under Subsection (a)(7) of this section that the actor was engaged in conduct that consisted of activity in support of constitutionally or statutorily protected rights.
Id. at 288 (emphasis added). We found that (a)(7)(A) suffered from the same flaws denounced in Kramer, namely, the inclusion of the words “annoy” and “alarm.” Id. at 289. Furthermore, the addition of “harass,” “abuse,” “torment,” and “embarrass,” joined by the disjunctive “or,” did nothing to reduce the vagueness of “annoy” and “alarm” and were, themselves, also susceptible to uncertain meaning. Id. We ultimately held the 1993 stalking provision unconstitutionally vague on its face. Id. at 297.
Does
931 S.W.2d at 288, with
This makes sense because vagueness doctrine is concerned with whether ordinary people can determine whether or not their conduct is criminal. See FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012) (“A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.“) (emphasis added); Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972) (An ordinance is void for vagueness where it “‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute[.]‘“) (emphasis added) (quoting United States v. Harriss, 347 U.S. 612, 617 (1954)); Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926) (“That the terms of a penal statute creating a new offense must be suffiсiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.“) (emphasis added).
Regardless of whether a person knows his conduct is annoying, he unquestionably would know whether or not he intended to be annoying when he engaged in the conduct.
In contrast to the statutes held invalid in Kramer and Long, for
Accordingly, we hold that
VII — Conclusion
Section 42.07(a)(1), the obscene harassment statute, is a content-based restriction of speech implicating the First Amendment. The statute restricts speech that is obscene under the First Amendment Miller standard and also speech that is not obscene under that standard. As a result, the law prohibits some amount of First Amendment protected speech. However, Appellant fails to carry his burden to show
The judgment of the court of appeals is affirmed.
Delivered: April 6, 2022
Publish
Notes
Specifically, Appellant‘s grounds are:
- Justice Rodriguez‘s dissent contains the same criticisms of the challenged statute that were addressed in 1983 by the U.S. Fifth Circuit Court of Appeals in Kramer v. Price. Kramer v. Price struck down the previous version of
Penal Code § 42.07 . The defects described in Justice Rodriguez‘s dissent and in Kramer v. Price have not been resolved. - The Fourth Court of Appeals’ decision, and the text of the challenged statute depart from accepted social norms and common understandings of the meaning of the word “harassment.” The Fourth Court‘s majority opinion, and the challenged statute, risk the criminalization of conduct that would not generally be considered ‘criminal’ by people of ordinary intelligence. Further, because of this disconnect between common sense and the text of the statute, the challengеd statute chills emotional speech, hyperbolic speech, metaphor, sharply critical speech and sexual overtures;
TRAP § 66.3 (f) .
- Texas Courts’ attempts to construe
§ 42.07 have led to baffling decisions that show no discernible logic or pattern that can be followed. The resulting authorities constitute a case by case evaluation of whether the subject speech makes reference to an “ultimate sex act.” As a result of this lack of clear guidance, the statute is overly broad and chills too much speech. - The Court of Appeals should settle this important question because the statute unconstitutionally delegates prosecutorial decision-making and because the potential chilling effect is broad,
TRAP § 66.3(b) .
Appellant‘s counsel raises a similar argument in Ex parte Sanders, No. PD-0469-19, — S.W.3d — (Tex. Crim. App. 2021). We address the merits of this argument in our opinion in Sanders.
The obscenity statute provides:
(1) “Obscene” means material or a performance that:
(A) the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex;
(B) depicts or describes:
(i) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
(ii) patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs; and
(C) taken as a whole, lacks serious literary, artistic, political, and scientific value.