In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00445-CR __________________
EX PARTE JUSTIN BRIAN JOHNSTON
__________________________________________________________________
On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 19-03-03754-CR __________________________________________________________________
MEMORANDUM OPINION
Justin Brian Johnston 1, Appellant, was indicted for allegedly stalking an ex-
girlfriend. 2 This accelerated appeal arises from the trial court’s order denying
Johnston the relief sought in his “Application for Pretrial Writ of Habeas Corpus
and/or Motion to Quash Amended Indictment” (hereinafter the Pretrial Motions).
The amended indictment alleged that Johnston committed the offense of stalking in
violation of section 42.072(a) in that
1 According to Appellant, he was a Liberty County Constable at the time of his arrest. 2 In Appellant’s brief, Johnston states he was originally indicted for misdemeanor harassment, but that charge was dismissed by the State. 1 on or about June 08, 2018, . . . [Johnston] did then and there on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, namely: [S.E. 3], knowingly engage in conduct that: constitutes the offense of harassment; caused [S.E.] to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and would cause a reasonable person to feel harassed, annoyed alarmed, abused, tormented, embarrassed, or offended to-wit: by sending repeated, unsolicited electronic communications to [S.E.] between the dates of May 1, 2018 and October 1, 2018, in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend [S.E.]
In his Pretrial Motions, Johnston alleged that section 42.072 of the Texas
Penal Code is facially unconstitutional because it is vague and overbroad and that it
chills First Amendment speech. Johnston also argued that the indictment lacked
specificity and certainty as to the acts for which he was being tried, put him in
jeopardy, and failed to set forth the offenses in plain and intelligible words. The trial
court had a hearing on and then denied the Pretrial Motions, and thereafter Johnston
timely appealed. Both in the trial court and on appeal, Johnston argues section
42.072 of the Texas Penal Code is facially unconstitutional under due process
because of its overbreadth and vagueness, and Johnston argues that it also violates
the free speech protections in the First Amendment. Finding no error, we affirm.
3 To protect the privacy of the victim, we refer to her by her initials. See Tex. Const. art. I, § 30(a)(1) (granting victims of crime “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 2 Standard of Review
The Court of Criminal Appeals “ha[s] held that an applicant may use pretrial
writs to assert his or her constitutional protections with respect to double jeopardy
and bail[,]” to challenge the facial constitutionality of the statute under which he or
she is prosecuted, or to allege that the offense charged is barred by limitations. Ex
parte Weise, 55 S.W.3d 617, 619-20 (Tex. Crim. App. 2001). We review a trial
court’s ruling on a pretrial writ of habeas corpus for an abuse of discretion. Kniatt v.
State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). In conducting this review, we
view the record evidence in the light most favorable to the trial court’s ruling. Id.
Ordinarily, when reviewing the constitutionality of a statute, we presume that
the statute is valid and that the legislature has not acted unreasonably or arbitrarily.
Ex parte Lo, 424 S.W.3d 10, 14-15 (Tex. Crim. App. 2013); Maloney v. State, 294
S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.] 2009, pet ref’d) (citing Rodriquez
v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002)). The party challenging the statute
normally carries the burden to establish the statute’s unconstitutionality. Rodriguez,
93 S.W.3d at 69. We shall uphold the statute if there is a reasonable construction
that renders it constitutional. Maloney, 294 S.W.3d at 626 (citing Ely v. State, 582
S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979)). “Whether a statute is facially
constitutional is a question of law that we review de novo.” Ex parte Lo, 424 S.W.3d
at 14. (citations omitted).
3 Section 42.072(a)(1) provides that a person commits the offense of stalking
. . . if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct that . . . constitutes an offense under Section 42.07, or that the actor knows or reasonably should know the other person will regard as threatening: (A) bodily injury or death for the other person; (B) bodily injury or death for a member of the other person’s family or household or for an individual with whom the other person has a dating relationship; or (C) that an offense will be committed against the other person’s property[.]
Tex. Penal Code Ann. § 42.072(a)(1). Section 42.07 codifies the offense of
harassment and states, in relevant part, that
(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.
Id. § 42.07(a)(7). Section 42.07(b)(1) defines “electronic communication” as
follows:
“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.
4 Id. § 42.07(b)(1). Void for Vagueness
In his first issue, Johnston argues that section 42.072(a)(1) is
unconstitutionally vague. He argues that the statute is void for vagueness because
the proscribed conduct—engaging in conduct that constitutes an offense under
Section 42.07 by causing another person to feel harassed, annoyed, alarmed, abused,
tormented, embarrassed, or offended—does not give reasonable notice of what
constitutes criminal conduct as required by the Fifth, Sixth, and Fourteenth
Amendments of the U.S. Constitution and Article I, Sections 10 and 19 of the Texas
Constitution. According to Johnston, the verbs in the section 42.07(a)(7) (harass,
annoy, alarm, abuse, torment, embarrass, or offend) are not defined by the statute
and do not lend themselves to objective definitions. Johnston acknowledges that the
intermediate appellate courts have disagreed that these terms render the harassment
statute impermissibly vague, and he cites Karenev v. State, 258 S.W.3d 210, 217
(Tex. App.—Fort Worth 2008), rev’d on other grounds, 281 SW.3d 428 (Tex. Crim.
App. 2009), and Ex parte Barton, 586 S.W.3d 573, 584 (Tex. App.—Fort Worth
2019, pet. granted) (op. on reh’g), in arguing that this language in the harassment
statute is impermissibly vague. Johnston also cites to several dissenting opinions
5 authored by Presiding Judge Keller, wherein Presiding Judge Keller has described
the harassment statute as unconstitutional. 4
The State responds and argues the statute is not unconstitutional. The State
relies on the majority opinion in Scott v. State, 322 S.W.3d 662 (Tex. Crim. App.
2010), in arguing that the telephone harassment portion of the stalking statute is not
unconstitutionally overbroad or void for vagueness, and it does not implicate the
First Amendment. According to the State, in Scott the Court rejected the same
constitutional attacks to section 42.07(a)(4) that Johnston is making in this case to
section 42.07(a)(7). The State contends that “[t]he only functional difference
between the subsection at issue in Scott and the incorporated portion of the
harassment statute in this case is that the subsection at issue here prohibits repeated
‘electronic communications,’ rather than repeated telephone communications.” 5
We agree that in Scott, the Court of Criminal Appeals addressed similar
arguments to Johnston’s when it analyzed the constitutionality of section 42.07(a)(4)
4 Ex parte Reece, 517 S.W.3d 108 (Tex. Crim. App. 2017) (Keller, P.J., dissenting); Ogle v. State, 563 S.W.3d 912 (Tex. Crim. App. 2018) (Keller, P.J., dissenting); Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010) (Keller, P.J., dissenting). 5 Section 42.07(a)(4) provides that “[a] person commits [the offense of harassment] if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person . . . 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[.]” Tex. Penal Code Ann. § 42.07(a)(4). 6 regarding harassment and telephonic communications. See 322 S.W.3d at 667-71;
see also Tex. Penal Code Ann. § 42.07(a)(4). The Court of Criminal Appeals
explained in Scott that to determine if section 42.07(a)(4) implicates constitutionally
protected speech we must “determine the protection afforded by the free-speech
guarantee, and then we must determine the meaning of § 42.07(a)(4).” Scott, 322
S.W.3d at 668. In analyzing if the statute as written implicated the First
Amendment’s free-speech guarantee, the Court explained that
[t]he First Amendment provides, in relevant part, that “Congress shall make no law . . . abridging the freedom of speech.” This guarantee of free speech, which was made applicable to the various states by the Due Process Clause of the Fourteenth Amendment, generally protects the free communication and receipt of ideas, opinions, and information[.] In a nation of ordered liberty, however, the guarantee of free speech cannot be absolute. The State may lawfully proscribe communicative conduct (i.e., the communication of ideas, opinions, and information) that invades the substantial privacy interests of another in an essentially intolerable manner.
Id. at 668-69 (citations omitted). The Court stated that considering the “plain text,
we believe that the conduct to which the statutory subsection is susceptible of
application will be, in the usual case, essentially noncommunicative, even if the
conduct includes spoken words.” Id. at 670 (citation omitted). The Court noted that
the “persons whose conduct violates § 42.07(a)(4) will not have an intent to engage
in the legitimate communication of ideas, opinions, or information; they will have
only the intent to inflict emotional distress for its own sake.” Id. In other words,
because the statute required the actor have the specific intent to “harass, annoy, 7 alarm, abuse, torment, or embarrass another, he . . . makes repeated telephone
communications . . . in a manner reasonable likely to harass, annoy, alarm abuse,
torment, embarrass, or offend another[,]” this was not communication protected by
the First Amendment. Id. at 669-70; see also Tex. Penal Code Ann. § 42.07(a)(4).
Recently, in State v. Grohn, 612 S.W.3d 78 (Tex. App.—Beaumont 2020, pet.
filed), this Court rejected a facial challenge to section 42.07(a)(7). In Grohn, the
defendant argued that the statute was vague and overbroad. Id. at 79-80. In
concluding that section 42.07(a)(7) “does not implicate First Amendment protection
and therefore, is not unconstitutionally vague[,]” this Court agreed with some of our
sister courts and found that the reasoning of Scott applies equally to the similarly
worded electronic-communications-harassment statute. Id. at 80-85; see also Ex
parte McDonald, 606 S.W.3d 856, 862-64 (Tex. App.—Austin 2020, no pet.);
Tarkington v. State, No. 12-19-00078-CR, 2020 Tex. App. LEXIS 2254, at **8-9
(Tex. App.—Tyler Mar. 18, 2020, no pet.) (mem. op., not designated for
publication); Ex parte Sanders, No. 07-18-00335-CR, 2019 Tex. App. LEXIS 2813,
at **11-12 (Tex. App.—Amarillo Apr. 8, 2019, pet. granted) (mem. op., not
designated for publication); Ex parte Hinojos, No. 08-17-00077-CR, 2018 Tex. App.
LEXIS 10530, at *14 (Tex. App.—El Paso Dec. 19, 2018, pet. ref’d) (not designated
for publication); Ex parte Reece, No. 11-16-00196-CR, 2016 Tex. App. LEXIS
12649, at *7 (Tex. App.—Eastland Nov. 30, 2016, pet. ref’d) (mem. op., not
8 designated for publication); Blanchard v. State, No. 03-16-00014-CR, 2016 Tex.
App. LEXIS 5793, at **7-8 (Tex. App.—Austin June 2, 2016, pet. ref’d) (mem. op.,
not designated for publication); Lebo v. State, 474 S.W.3d 402, 408 (Tex. App.—
San Antonio 2015, pet. ref’d); Duran v. State, Nos. 13-11-00205-CR & 13-11-
00218-CR, 2012 Tex. App. LEXIS 7110, at **7-8 (Tex. App.—Corpus Christi-
Edinburg Aug. 23, 2012, pet. ref’d) (mem. op., not designated for publication). 6 We
are bound by the precedent of this Court, and therefore we reject Johnston’s
argument that 42.07(a)(7) implicates the First Amendment, is void for vagueness, or
overbroad. See State v. Ibarra, 918 S.W.2d 15, 17 (Tex. App.—Houston [14th Dist.]
1995) (absent contrary authority, an intermediate appellate court is bound by
decisions of that court and the Court of Criminal Appeals), aff’d, 953 S.W.2d 242
(Tex. Crim. App. 1997).
Johnston also argues the harassment and stalking statutes are vague because
the term “repeated” in section 42.07(a)(7) and the terms “scheme” and “course of
conduct” in section 42.072(a)(1) are undefined in the Penal Code, and the terms fail
to “indicate a concrete number.” Johnston further asserts that the “reasonable
6 We note that other sister courts have found that section 42.07(a)(7) implicates the First Amendment and that it is unconstitutionally overbroad or vague. See State v. Chen, 615 S.W.3d 376, 383-85 (Tex. App.—Houston [14th Dist.] 2020, pet. filed); Ex parte Barton, 586 S.W.3d 573, 583-84 (Tex. App.—Fort Worth 2019, pet. granted) (op. on reh’g). 9 person” standard in section 42.072(a)(1) does not “save” the statute from
unconstitutional vagueness.
Johnston acknowledges that the Texas Court of Criminal Appeals determined
in Wilson v. State that the term “repeated” in section 42.07(a)(4) means more than
one occurrence. See 448 S.W.3d 418, 424 (Tex. Crim. App. 2014). The Court in
Wilson determined that the term “repeated” in section 42.07(a)(4) is unambiguous:
[Section 42.07(a)(4)]’s use of “repeated” simply speaks in terms of the number of telephone communications, it does not attempt to define the required frequency of the communications or temporal proximity of one communication to another. Finding § 42.07(a)(4)’s use of “repeated” ambiguous in describing these specific characteristics of the communication asks too much of the term. It would require presuming that the Legislature intended to define and regulate this type of harassing conduct by a particular frequency or temporal standard—a notion unsupported by the statute’s plain language.
Id. (footnote omitted). Similarly, we believe the term “repeated” in section
42.07(a)(7) is also unambiguous. We conclude that Johnston has failed to establish
that section 42.072(a)(1) or section 42.07(a)(7) is unconstitutionally vague on its
face. Because we have determined that section 42.07(a)(7) does not implicate the
First Amendment’s free speech guarantee, the burden falls on Johnston to
demonstrate “that it was unduly vague as applied to his own conduct.” See Scott,
322 S.W.3d at 670-71. Johnston has failed to show how the statute is
10 unconstitutionally vague as applied to his conduct. We overrule Johnston’s first
issue.7
Overbreadth
In his second issue, Johnston argues that section 42.072(a)(1) is also facially
unconstitutional because it is overly broad and restricts too much speech protected
by the First and Fourteenth Amendments of the U.S. Constitution and Article I,
Section 8, of the Texas Constitution. According to Johnston, the electronic
communications proscribed by section 42.07(a)(7)—and therefore also
42.072(a)(1)—includes not only personal texts and emails but also social media
postings, which is public speech that has been held to be protected speech. Johnston
argues that the Court of Criminal Appeal’s holding in Scott that section 42.07(a)(4)
does not implicate the First Amendment does not apply to section 42.07(a)(7).
Johnston also argues that there is no nexus between the compelling interest
underlying section 42.072(a)(1) and the “[b]lanket [r]estriction” on repeated
electronic communications and that section 42.072(a)(1) is not narrowly tailored
because electronic communications in public forums would fall within the broad
sweep of section 42.07(a)(7).
7 Because we find section 42.07(a)(7) and section 42.072(a)(1) are not unconstitutionally vague on the grounds asserted by Johnston, we need not address his argument that the “reasonable person” standard in section 42.072(a)(1) does not “save” the statute from unconstitutional vagueness. 11 The State argues that the stalking statute is not overbroad in violation of the
First Amendment. According to the State, the Court of Criminal Appeal’s holding
in Scott as to section 42.07(a)(4) should apply to section 42.07(a)(7) because the
only functional difference between the two subsections is that subsection (a)(4)
prohibits repeated telephone communications and subsection (a)(7) prohibits
repeated “electronic communications,” and therefore, the harassment portion of the
stalking statute does not implicate the First Amendment. The State argues that
Johnston’s argument that section 42.07(a)(7) implicates First Amendment is based
on “non-mandatory, unpersuasive authority.” The State also contends the additional
elements of the stalking statute further avoid reaching constitutionally protected
speech.
Before a statute will be invalidated on its face as overbroad, the overbreadth
must be substantial when “‘judged in relation to the statute’s plainly legitimate
sweep.’” Ex parte Lo, 424 S.W.3d at 18 (quoting Virginia v. Hicks, 539 U.S. 113,
118-19 (2003)). A statute should not be invalidated for overbreadth merely because
it is possible to imagine some unconstitutional application. See In re Shaw, 204
S.W.3d 9, 15 (Tex. App.—Texarkana 2006, pet. ref’d) (citing Members of City
Council v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984)). With respect to
vagueness, statutes are not necessarily unconstitutionally vague merely because the
words or terms employed in the statute are not specifically defined. See Engelking
12 v. State, 750 S.W.2d 213, 215 (Tex. Crim. App. 1988). When a statute does not
define the words used therein, we will give the words their plain meaning. See
Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim. App. 1999); see also Tex. Gov’t
Code Ann. § 311.011(a). (“Words and phrases shall be read in context and construed
according to the rules of grammar and common usage.”) A statute will be invalidated
if it fails to give a person of ordinary intelligence a reasonable opportunity to know
what conduct is prohibited. See State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim.
App. 2006).
In concluding section 42.07(a)(7) is not unconstitutionally overbroad, this
Court rejected similar overbreadth arguments in Grohn. See 612 S.W.3d at 82-84.
This Court found that Scott was applicable to the case, that the “communicative
conduct” listed in section 42.07(a)(7) was “[a]lmost identical to the communicative
restrictions in 42.07(a)(4),” and, under Scott, the provision is constitutional. Id. at
83. This Court also rejected the argument that the statute is overly broad because it
includes the term “electronic communication,” a broader form of communication
than telephone communication. Id. at 83-84. We also declined to follow Barton and
Karenev, the same cases Johnston cites in support of his arguments. Id. at 84. This
Court noted that we do not invalidate a statute as overbroad merely because it is
possible to image some unconstitutional applications, but instead must first
determine if the statute reaches a substantial amount of constitutionally protected
13 speech. Id. We follow this Court’s construction and precedent as outlined in Grohn.
We conclude that Johnston has failed to establish that either section 42.07(a)(7) or
section 42.072(a)(1) is unconstitutionally overbroad on its face. Issue two is
overruled.
Due Process
In his third issue, Johnston argues that, even if this Court finds section
42.072(a)(1) is constitutional, the indictment against Johnston violates the
constitutional guarantees of due process set out in the Fifth, Sixth, and Fourteenth
Amendments of the U.S. Constitution and Article I, Sections 10 and 19, and Article
5, Section 12(b), of the Texas Constitution. Specifically, Johnston argues that the
indictment fails to give adequate notice of the criminal conduct charged because the
indictment did not specify which electronic communications were used and on
which occasions those communications caused S.E. to feel harassed, annoyed,
alarmed, abused, tormented, embarrassed, or offended. Also, Johnston contends that
because the terms harass, annoy, alarm, abuse, torment, embarrass, and offend are
listed in the disjunctive, it is impossible to know which feeling was caused and for
Johnston to prepare his defense. According to Johnston, the indictment fails to list
the manner and means of violating the statute and, therefore, he cannot determine
which acts he can object to and request a limiting instruction for under Rule 404(b).
14 The State argues that pretrial habeas is generally not available to test the
sufficiency of the charging instrument because the resolution on appeal requires
development of the trial record, and that Johnston has an adequate remedy at law
through direct appeal. In the alternative, the State argues that the indictment provides
adequate notice by tracking the statutory language and specifying the manner and
means by which Johnston committed the charged offense.
“Generally, pretrial habeas is not available to test the sufficiency of the
charging instrument or to construe the meaning and application of the statute
defining the offense charged.” Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App.
2010) (citations omitted). We agree with the State’s contention that Johnston’s
challenge to the indictment is not a cognizable claim via habeas corpus and that he
has an adequate remedy by direct appeal. See id.; Ex parte Weise, 55 S.W.3d at 619.
Issue three is overruled.
Having overruled Appellant’s three issues, we affirm the trial court’s denial
of Appellant’s Application for Pretrial Writ of Habeas Corpus and/or Motion to
Quash Amended Indictment.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
15 Submitted on May 21, 2020 Opinion Delivered April 14, 2021 Do Not Publish
Before Golemon, C.J., Kreger and Johnson, JJ.