Wagner v. State

539 S.W.3d 298

Paul Henri WAGNER, Appellant

v.The STATE of Texas

NO. PD–0659–15

Court of Criminal Appeals of Texas.

Delivered: February 14, 2018

Vincent W. Perini, Attorney At Law, 2501 Oak Lawn Ave., Suite 560, Dallas, TX 75219–4082, for Appellant.

Christine Ou, Assistant District Attorney, Frank Crowley Courts Building, 133 N. Riverfront Blvd., LB–19 Dallas, TX 75207–4399, Stacey Soule, Austin, TX, for The State.

OPINION

Alcala, J., delivered the opinion of the Court in which Keasler, Hervey, Richardson, Yeary, Newell, Keel, and Walker, JJ., joined.

In this case, we consider the constitutionality of Penal Code Section 25.07(a)(2)(A).¹ Under that statute, the State may prosecute an individual who has intentionally or knowingly communicated in a "threatening or harassing manner" with another person in violation of a judicially issued protective order or bond condition. Id. Paul Henri Wagner, appellant, was charged and convicted under that statute after a jury determined that he communicated with his estranged wife, Laura, in a harassing manner in violation of a protective order that had been issued against him for her protection due to a history of family violence. The court of appeals affirmed appellant's conviction on direct appeal over his challenge to the statute's constitutionality on overbreadth and vagueness grounds under the First and Fourteenth amendments to the federal Constitution. See Wagner v. State , No. 05–13–01329–CR, 2015 WL 2148103, at *6 (Tex. App.–Dallas May 5, 2015) (mem. op., not designated for publication). We agree with the court of appeals that the statute, if interpreted in accordance with its plain meaning, is not overbroad because it does not reach a substantial amount of constitutionally protected speech, in that it applies only to a limited number of people whose communications have been restricted by a judge through a bond or protective order, and it prohibits only communications that are intentionally or knowingly made in a threatening or harassing manner towards particular protected individuals. We similarly conclude that the statute, as applied to appellant's conduct, is not impermissibly vague because the plain statutory terms are such that they would afford a person of ordinary intelligence a reasonable opportunity to know that his course of conduct would be prohibited. Accordingly, we will affirm the court of appeals's judgment upholding appellant's conviction.

I. Background

Appellant and the complainant in this case, Laura, were formerly married. In October 2011, appellant was arrested and charged with Class C misdemeanor family-violence assault against Laura. Around that same time, the couple separated after Laura indicated to appellant her desire to pursue a divorce.

Around one month after the couple had separated, Laura sought a protective order against appellant. In her affidavit in support of her application, Laura detailed a history of family violence that appellant had committed against her.² On November 16, 2011, a district court entered an order of protection that prohibited appellant from, among other things, "communicating directly with [Laura] in a threatening or harassing manner." The order contained a finding that family violence had occurred and was likely to occur in the foreseeable future.³

The first week after the protective order was signed, Laura and appellant communicated by text message until she told him to only use email for his communication with her. On November 17, Laura sent appellant a text message saying, "I pray for u everyday [sic]. That you would be humbled in the sight of the Lord and redeemed." The following day, appellant responded to Laura's message by saying that he prayed for her every day, too. In several subsequent text messages over the next few days, Laura and appellant discussed financial and logistical matters, including issues pertaining to the payment of bills and whether appellant had found a job. At one point, Laura asked appellant whether he would be getting unemployment benefits. Appellant responded by inquiring whether Laura had hired a divorce attorney and explaining that his attorney wanted to communicate with her attorney. Laura did not respond. Appellant then sent a text message asking Laura, "Are you still wanting to talk?" She responded, "I think it would be best not to talk except through email." Appellant responded, "Why?" Laura replied, "Please just respect my wishes." The following day, appellant emailed Laura twice. In his first email, appellant discussed financial matters, but he also professed his love for Laura and expressed his desire to be reconciled. Laura replied to appellant's email by discussing only bills and financial matters. Appellant sent a reply email to Laura again addressing financial matters, and again expressing his desire to be reconciled.

During a six-day period of time, beginning on November 23, appellant sent over a dozen text messages to Laura until she again instructed him to stop texting her. On November 23, appellant sent a text message stating, "I miss you so much Laura." Laura did not respond. On November 25, appellant sent Laura another text message asking whether he could pay the daycare bill online. The two exchanged several text messages regarding financial matters. Appellant then sent a text message again telling Laura that he wanted to reconcile with her. In response to this message, Laura sent appellant a text message asking whether their medical insurance was still in effect. Appellant replied the next day, November 26, by asking Laura whether she was alright. Laura replied, "Yes." Appellant then sent another text message stating, "Please don't be cold and hard towards me. My heart is in so much pain without you." Laura responded that she needed to know about the insurance because their daughter needed medicine. Appellant then replied to that message by confirming that his health insurance had been suspended. Appellant and Laura exchanged several more text messages regarding their health insurance and the health of their daughter. Appellant sent a text message asking whether Laura's attorney would be contacting his attorney. Laura did not reply. On November 28, appellant sent Laura several text messages asking for items from the house and again asking Laura to have her attorney contact his attorney. Laura replied, "Who says I have an attorney?" Appellant then asked Laura again whether she had hired an attorney. After Laura did not reply, appellant then sent another text message stating, "It would be so much easier if we could just talk on the phone." Laura did not respond. Appellant then sent another text message stating, "Can we talk on the phone?" Laura refused and told appellant she was trying to sleep and that she had work the next day. After that, appellant texted Laura again to inquire whether she had a lawyer. Laura responded, "Stop texting me."

On November 30, appellant emailed Laura to discuss financial matters, and the two exchanged a series of emails discussing those matters between November 30 and December 2.

During the four days beginning on December 5, when appellant was served with a divorce petition, he called Laura at least twice, and he emailed her five times asking her not to divorce him. On December 5, appellant called Laura and left a voicemail in which he was upset and crying and begged her not to pursue the divorce. That same day, appellant sent Laura a lengthy email that included poetry, prayers, bible references, professions of love, and pleas for reconciliation. This email included the following passage:

Due to the ways of men and the powers that be, I have been prohibited from coming before her in humility to profess my love. "Do not speak or write," they say. "A weapon against you will be sought after in your words of love. She brought down men who seek destruction on you twice already. Why would you even trust her a third time?" But I cannot be silent any longer. My heart fails for not proclaiming my love for Laura.

Laura did not respond to this email. On December 6, appellant sent Laura another email asking why she had deceived him by hiring an attorney without informing him. Appellant asked Laura to "cancel this divorce and let us be separated for a time until I can prove myself to you." Appellant continued his requests for forgiveness and reconciliation. On December 7, appellant emailed Laura again. In the email, appellant again pleaded with Laura that she not divorce him, stating, "Please don't divorce me Laura. I'm begging you, please. I'll do anything, anything at all. Give me time to prove myself.... This is our marriage and I'll do anything to save it." On December 8, appellant sent Laura two more emails. In the first email, he again pleaded with her not to proceed with the divorce. In the second email, he stated that he had been having anxiety attacks and trouble breathing and did not know what to do.

On the evening of December 8, Laura received a forwarded email that appellant had sent two days earlier to members of the couple's church asking them to help him in his efforts to stop the divorce. Appellant explained that Laura had declined to forgive him and that she would not speak to him anymore. Appellant asked the church members to contact Laura and urge her to wait and be patient, allowing him time to "prove himself" to her. The church members forwarded the email to Laura. Two days later, Laura complained to the police that appellant had violated the protective order.

Appellant was subsequently charged and tried by a jury for violating the protective order by communicating with Laura in a harassing manner. See TEX. PENAL CODE § 25.07(a)(2)(A). After the trial court overruled his objections to the statute on overbreadth and vagueness grounds, the jury convicted him, and he was sentenced to one year in jail, probated for twenty-four months, and a fine of $375.

On direct appeal, appellant challenged his conviction by arguing that Section 25.07(a)(2...