State v. Chen

615 S.W.3d 376

The STATE of Texas, Appellant

v.Jasper Robin CHEN, Appellee

NO. 14-19-00372-CR

NO. 14-19-00373-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed December 31, 2020

Eric Kugler, Patricia McLean, Dan McCrory, Houston, for Appellant.

Mark W. Bennett, Robert James Fickman, Houston, for Appellee.

Panel consists of Justices Zimmerer, Spain, and Hassan

Charles A. Spain, Justice

The State charged appellee by information with the misdemeanor offense of, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, sending repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another on or about April 15, 2018 continuing through October 29, 2018.

Tex. Penal Code Ann. § 42.07(a)(7), (c). Appellee filed an application for writ of habeas corpus and motion to quash the information, arguing that the statute under which he was charged, Penal Code section 42.07(a)(7) (the "electronic-communications-harassment statute"), is facially unconstitutional and unconstitutional as applied to him under the First Amendment. U.S. Const. amend. I ; see Tex. Code Crim. Proc. Ann. art. 11.09. The trial court granted the application, a writ of habeas corpus was issued, and appellee and the State appeared for a hearing on the application. After the hearing, the trial court concluded the statute is facially unconstitutional and granted habeas-corpus relief and the motion to quash the information, thereby discharging the appellee. See Tex. Code Crim. Proc. Ann. art. 11.40. The State appealed.¹ We affirm.

I. ANALYSIS

Regarding electronic communications, the harassment statute reads, in relevant part:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:

....

(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

(b) In this section:

(1) "Electronic communication" means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes:

(A) a communication initiated through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine; and

(B) a communication made to a pager.

Tex. Penal Code Ann. § 42.07(a)(7), (b)(1). The State argues that the trial court erred in determining that the electronic-communications-harassment statute is facially unconstitutional. Whether a statute is facially constitutional is a question of law that we review de novo. Ex Parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). Ordinarily, the party challenging the statute carries the burden to establish the statute's unconstitutionality. Id. at 15.

A. Applicability of the First Amendment

We begin with the State's argument that the electronic-communications-harassment statute does not implicate a substantial amount of speech protected by the First Amendment. See Vill. of Hoffman Estates v. Flipside Hoffman Estates, Inc. , 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (in First Amendment cases, courts first decide whether statute "reaches a substantial amount of protected conduct" before deciding if it is facially overbroad or void for vagueness). The First Amendment prohibits laws "abridging the freedom of speech" and generally protects the free communication and receipt of ideas, opinions, and information. U.S Const. amend I ; see Red Lion Broad. Co. v. F.C.C. , 395 U.S. 367, 390, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). These protections are not absolute, however. For example, the State may lawfully proscribe communicative conduct that invades the substantial privacy interests of another in an essentially intolerable manner. Cohen v. California , 403 U.S. 15, 21, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).

On its face, the statute's prohibition on a broad array of electronic communications made "with intent to harass, annoy, alarm, abuse, torment, or embarrass another" would appear to impede the free communication and receipt of ideas, opinions, and information, thereby reaching a substantial amount of protected speech. See Tex. Penal Code Ann. § 42.07(a)(7), (b)(1) ; Red Lion Broad. Co. , 395 U.S. at 390, 89 S.Ct. 1794. In Scott v. State , however, the court of criminal appeals rejected a similar First Amendment challenge to the telephone-harassment portion of the harassment statute. 322 S.W.3d 662 (Tex. Crim. App. 2010), cert. denied , 563 U.S. 936, 131 S.Ct. 2096, 179 L.Ed.2d 891 (2011) (analyzing Tex. Penal Code Ann. § 42.07(a)(4) (the "telephone-harassment statute")).² The Scott court determined that the telephone-harassment statute, "by its plain text, is directed only at persons who, with the specific intent to inflict emotional distress, repeatedly use the telephone to invade another person's personal privacy and do so in a manner reasonably likely to inflict emotional distress." Scott , 322 S.W.3d at 669–70. The court reasoned that, because the "sole intent" of telephone calls prohibited by the harassment statute was to cause emotional distress, the calls were "essentially noncommunicative" for First Amendment purposes. See id. The court went on to hold that any communicative conduct to which the subsection might apply "is not protected by the First Amendment because, under the circumstances presented, that communicative conduct invades the substantial privacy interests of another (the victim) in an essentially intolerable manner." Id. at 670.

Many of our sister courts have held that the reasoning of Scott applies equally to the similarly worded electronic-communications-harassment statute.³ These courts reason that, since the sole intent of the electronic communications encompassed by the electronic-communication-harassment statute is to invade the privacy of the recipient in an essentially intolerable manner, the statute does not reach a substantial amount of speech protected by the First Amendment.⁴

In Ex parte Barton , however, the Fort Worth Court of Appeals concluded that the central holding of Scott had been abrogated by the court of criminal appeals' subsequent decision in Wilson v. State , and accordingly declined to apply Scott to the electronic-communications-harassment statute.⁵ See generally Barton , 586 S.W.3d 573 (Tex. App.—Fort Worth 2019, pet. granted) (op. on reh'g).⁶ The Barton court determined "that the Wilson decision recognized that a person who communicates with the intent to harass, annoy, alarm, abuse, torment, or embarrass can also have an intent to engage in the legitimate communication of ideas, opinions, information, or grievances." Id. at 579 (discussing Wilson , 448 S.W.3d 418, 422 (Tex. Crim. App. 2014) ). Because the Fort Worth court read Wilson to concede that conduct punishable by the statute could have a dual intent—one protected by the First Amendment and one not—it departed from the "sole intent" limiting construction of Scott and held the electronic-communications-harassment statute implicated speech protected by the First Amendment.⁷ See id.

In addition to recognizing the dual-intent issue that Wilson introduced into the Scott analysis, the Fort Worth Court of Appeals also noted the centrality of "the inherently personal and invasive nature of telephone calls" to the analysis of the court of criminal appeals in Scott. Id. As pointed out by Presiding Judge Keller in dissent, the Scott court's conclusion that the telephone-harassment statute involves conduct that "invades the substantial privacy interests of another (the victim) in an essentially intolerable manner" hinges on the idea that telephone calls are made to a "captive audience":

[T]he telephone is a comparatively personal and private method of communication in which messages can be difficult to screen.... [I]t is a device readily susceptible to abuse by a person who intends to be a constant trespasser upon our privacy. When the intent of the actor is to inflict one of the higher-intensity emotional states of harass, abuse, and torment in the relatively private, "captive-audience" telephone context , and the actor's conduct is reasonably likely to achieve that end, the First Amendment provides no protection.

Barton , 586 S.W.3d at 579 (quoting Scott , 322 S.W.3d at 676 (Keller, P.J., dissenting)). While Presiding Judge Keller agreed with the majority that the "captive-audience" telephone context rendered "high intensity" states of harass, abuse, and torment outside of First Amendment protections, it did not do the same for "low intensity" states also covered by the statute, namely annoy, alarm, embarrass, and offend. See id. Regardless, her analysis, like that of the Scott court, relied on the notion of telephone calls to a person's home reaching a captive audience entitled to special privacy protections.

In the context of the electronic-communications statute, however, the captive-audience analysis of Scott loses force. While Scott addresses the uniquely invasive nature of telephone calls, "electronic communications" encompasses a far broader array of activities. See Tex. Penal Code Ann. § 42.07(b)(1). Crucially, many of the activities do not fall within the "captive-audience" context, but instead require affirmative actions by the user to access the content at issue. Specifically, "electronic communications" is defined to include, among other things, "a communication initiated through the use of" electronic mail, a computer, a camera, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine. Id. These modes of communication are not made to a captive audience, but rather to an audience...