ACCEPTED 04-14-0383-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 3/11/2015 7:18:34 PM KEITH HOTTLE CLERK
NO. 04-14-00383-CR
IN THE FILED IN 4th COURT OF APPEALS COURT OF APPEALS SAN ANTONIO, TEXAS 03/11/2015 7:18:34 PM FOR THE KEITH E. HOTTLE Clerk FOURTH SUPREME JUDICIAL DISTRICT
SAN ANTONIO, TEXAS
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SEAN LEBO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
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ON APPEAL FROM COUNTY COURT AT LAW NUMBER 14
OF BEXAR COUNTY, TEXAS
CAUSE NUMBER 413956
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BRIEF FOR THE APPELLANT
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oral argument requested.
PAT MONTGOMERY 111 SOLEDAD, SUITE 300 SAN ANTONIO, TX 78205 (210) 225-8940 Fax (978)285-4664 PatMontgomery@Gmail.com STATE BAR NO. 14295350 Appellant's Attorney INDEX
INDEX...............................................................................................................................................i LIST OF PARTIES............................................................................................................................ii TABLE OF AUTHORITIES............................................................................................................iii STATEMENT OF THE CASE..........................................................................................................1 PROCEDURAL HISTORY ..............................................................................................................1 FACTUAL HISTORY.......................................................................................................................1
POINT OF ERROR NUMBER ONE: The Harassment Statute upon which the Defendant was convicted is constitutionally void for vagueness, and for overbreadth, therefore his conviction should be reversed and the case should be remanded with orders to dismiss. …..........................................................................................…...................4
POINT OF ERROR NUMBER TWO: The Appellant’s trial counsel was constitutionally inadequate and provided ineffective assistance of counsel due to a failure to challenge the Harassment Statute upon which the Defendant was convicted as being constitutionally void for vagueness and overbreadth. …..........................................................................................…...................4
SUMMARY.....................................................................................................................................10
PRAYER..........................................................................................................................................10
CERTIFICATE OF SERVICE.........................................................................................................10
-i- LIST OF PARTIES
SEAN LEBO was the trial Defendant below.
Mr. LEBO is now the Appellant in the instant appeal. PAT MONTGOMERY now
represents Appellant in the instant appeal.
KIMBEL WARD and WILLIAM REECE represented the Appellant at trial.
The State of Texas is the Appellee. Bexar County District Attorney SUSAN D. REED
represented the State of Texas at the trial court. She appeared by and through her Assistant
District Attorneys JASON GARRAHAN, WILLIAM NICHOLS, and BEN RUTTENBERG.
The Complainant in this case is JASON LAYMAN.
District Attorney NICO LAHOOD now represents the Appellee State of Texas in the
instant appeal, by and through the Assistant District Attorneys designated to handle the case.
Honorable Judge PHIL CHAVARRIA presided over the trial court proceedings.
PATRICK B. MONTGOMERY 111 SOLEDAD, SUITE 300 SAN ANTONIO, TX 78205 (210) 225-8940 Fax (978)285-4664 PatMontgomery@Gmail.com STATE BAR NO. 14295350
-ii- TABLE OF AUTHORITIES CONSTITUTIONS First Amendment to the United States Constitution..................................................................5, 6 Sixth Amendment to the United States Constitution.................................................................8, 9 Art. 1, Sec. 8 of the Texas Constitution.........................................................................................5
STATUTE Texas Penal Code §42.07..........................................................................................................3, 6
CASES
Conrad v. State, S.W.3d 424,(Tex. App. 2002).............................................................................9
Ely v. State, 582 S.W.2d 416, (Tex.Crim. App. [Panel Op.] 1979)................................................4
Freeman v. State; 167 S.W.3d 114,(Tex. App. 2005)....................................................................9
Grayned v. Rockford, 408 U.S. 104, (1972)..................................................................................4
Harling v. State, 899 S.W.2d 9, (Tex. App. --San Antonio 1995)................................................9
Hernandez v. State, 943 S.W.2d 930 (Tex. App.---El Paso 1997)................................................9
Karenev v. State, 258 S.W.3d 210 (Tex.App.-Fort Worth 2008)...................................................6
Karenev v. State, 281 S.W.3d 428, (Tex.Crim.App. 2009)........................................................7, 8
Kramer v. Price, 712 F.2d 174, (5th Cir.1983)..........................................................................4, 7
Long v State, 931 S.W.2d 285, (1996)...........................................................................................7
Marin v. State, 851 S.W.2d 275, (Tex.Crim.App. 1993)............................................................7, 8
Michel v. Louisiana, 350 U.S. 91, (1955)......................................................................................8
Papachristou v. City of Jacksonville, 405 U.S. 156, (1972).........................................................4
Rylander v. State, 101 S.W.3d 107, (Tex. Crim. App. 2003);........................................................9
Strickland v. Washington, 466 U.S. 668 (1984).............................................................................8
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999)...........................................................8
-iii- STATEMENT OF THE CASE
This is an appeal from a criminal case tried to a jury. The Appellant was convicted by
unanimous jury verdict of Harassment, a Class B Misdemeanor. Punishment was assessed by the
trial court at six months confinement in the Bexar County Jail.
PROCEDURAL HISTORY
Appellant SEAN LEBO was charged by Information and Complaint filed on April 16,
2013. The Information and Complaint alleged that on or about January 3, 2013, the Appellant
committed the offense of Harassment against the Complainant Jason Laymon, by sending him
multiple electronic mail messages.
Trial was conducted January 31, 2014. The jury convicted the Appellant as charged. The
case was rescheduled for sentencing.
Before the sentencing hearing, the Appellant’s trial counsel withdrew from representation
at the Appellant’s request. The Honorable Trial Court appointed the undersigned counsel to
represent the Appellant at the sentencing hearing.
The Appellant filed various pro se motions and a premature Notice of Appeal during the
time between the jury’s verdict and the sentencing hearing.
Sentencing was held May 16, 2014. The Appellant was represented by undersigned
counsel. The Court sentenced the Appellant to six months confinement and a one thousand dollar
fine. The Appellant’s request to remain free on bond pending his appeal was granted, subject to
various conditions.
-1- One particular condition of the appeal bond involved a lengthy list of parties and places
that the Appellant was prohibited from contacting. While this instant appeal was pending, the
State (Appellee) moved that the trial court amend the conditions of the Appellant’s bond to
include no contact with two additional protected parties.
Subsequently, the Appellant was charged with contacting those parties. The Appellee
advised the trial court that they intended to call undersigned appointed counsel as a witness in an
effort to show that the Appellant was aware of the modified conditions of bond. Counsel moved
to abate this appeal to conduct a trial court hearing regarding any conflict of interest. The appeal
was abated, and the trial court concluded that counsel was not disqualified from representing the
Appellant due to the possibility that the State might call him as a witness in the new prosecution
against Appellant. Counsel now files this appellate brief for Appellant
FACTUAL HISTORY
The factual history of the case was presented to the jury through the testimony of two
witnesses called by the state, three witnesses called by the defense, and dozens of exhibits. Most
of the exhibits were emails that were sent by the Appellant to the Complainant. The factual
history will be quite abbreviated herein, due to the constitutional nature of the arguments.
The trial evidence showed that the Appellant herein believes that many local law
enforcement officers and members of the judiciary, including the Complainant Jason Laymon, are
dishonest and corrupt. The Appellant believes that the Complainant Jason Laymon in particular
has hidden, falsified, and destroyed relevant and pertinent evidence of the Appellant’s actual
innocence regarding prior criminal charges that were brought against the Appellant. Some of
those criminal charges date to 2001, and 2010. The Appellant seeks redress for his grievances.
-2- The evidence showed that the Appellant has attempted to provoke investigations into his
allegations of corruption. He has contacted various officials and agencies in an effort to cause the
desired investigations. He has also sent multiple emails to the complainant Jason Laymon, in his
effort to cause Laymon to take actions regarding the Appellant’s myriad allegations, and in a
further effort to cause the Complainant to admit to Complainant’s own alleged past wrongdoing
against the Appellant. The Appellant has threatened lawsuits and criminal charges against the
Complainant, and has been quite impolite in many of his electronic messages to the Complainant.
It is this conduct that forms the basis of the Harassment charge, and of the instant appeal.
POINT OF ERROR NUMBER ONE: The Harassment Statute upon which the Defendant was convicted is constitutionally void for vagueness, and for overbreadth, therefore his conviction should be reversed and the case should be remanded with orders to dismiss.
Texas Penal Code §42.07, the Harassment statute, reads in pertinent part that
“(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or
embarrass another, he: … … 7) sends repeated electronic communications in a manner
reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.
[emphasis added].
The statute does not define the terms “harass, annoy, alarm, abuse, torment, or embarrass.”
The statute makes those terms disjunctive, not conjunctive, so that any one of the terms alone
might satisfy the statutory element. If a fact finder believed beyond a reasonable doubt that a
person sent two electronic messages (repeated), with the intent to annoy a recipient, and the
messages were reasonably likely to annoy, then the statute is satisfied --- except that the
Constitution is not satisfied, as the Appellant will show.
-3- Due process of law under the United States Constitution and Due Course of Law under the
Texas Constitution require that statutes not be unconstitutionally vague or overbroad.
There are two ways that a law can be void for vagueness. The first way that a law can be
void for vagueness is when it does not give a person of normal intelligence adequate notice that
his conduct is prohibited by the law. Papachristou v. City of Jacksonville, 405 U.S. 156, 163, 92
S. Ct. 839, 843, 31 L. Ed. 2d 110 (1972).Grayned v. Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294,
2298--2299, 33 L.Ed.2d 222 (1972), Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim. App. [Panel
Op.] 1979). Kramer v. Price, 712 F.2d 174 (5th Cir.1983)
The second way that a law can be void for vagueness is if it gives too much discretion to
police officers, prosecutors, and jurors to determine what conduct constitutes and offense. Id.
The void for vagueness doctrine was well described in Grayned v. Rockford, 408 U.S. 104
(1972), where the Court stated:
“It is a basic principle of due process that an enactment is void for vagueness if its
prohibitions are not clearly defined. Vague laws offend several important values. First, because
we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give
the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he
may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if
arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards
for those who apply them. A vague law impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant
dangers of arbitrary and discriminatory application.”
In the instant case and statute, the terms harass, annoy, alarm, abuse, torment, and
embarrass are not defined. They may have different meanings to people of different
-4- temperaments. The word annoy is particularly vague. People may be annoyed by multiple spam
emails received daily. The senders may intend to annoy the recipient, in an effort to provoke a
purchase of software, or some other product. A person may be annoyed at having to use a delete
key, or customize a spam filter. It should not be left up to law enforcement, prosecutors, or juries
to decide without guidance what the word annoy means.
When any criminal statute encompasses activity which would be otherwise protected by
the U.S. Constitution, a defendant may challenge the provision on grounds that it is overbroad and
therefore unconstitutional. This makes a statute or ordinance unconstitutional if the manner in
which it is written creates an unnecessarily broad sweep, and invades the area of protected
freedoms.
Overbroadness occurs when a prohibition overlaps on a prescription, that is, when people
need to avoid constitutionally protected behavior, due to a fear of inadvertently committing a
crime.
Art. 1, Sec. 8 of the Texas Constitution provides "Every person shall be at liberty to
speak, write or publish his opinions on any subject, being responsible for the abuse of that
privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.”
The First Amendment to the United States Constitution provides that: “Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.”
Citizens should not fear exercising their constitutionally protected right to freedom of
speech under the First Amendment to the Constitution or their right to petition for redress of
grievances due to the possibility of being ensnared in a prosecution based on overbroad laws.
-5- In the instant case, even if the Appellant’s intent was to annoy the Complainant, his
conduct was protected by his First Amendment right to freedom of speech, and his right to
petition the Government (the police officer Complainant) for a redress of grievances. His intent
was to invoke religious beliefs in some of the communications. To the extent that the statute
stifles this laudable goal, albeit executed quite impolitely, the statute is void for overbreadth.
By further example, with the instant statute, sending two (repeated) emails to someone,
promising to sue them (reasonably likely to annoy), with the intent to alarm them about their legal
liability, would be a violation of the statute. It would also be a protected freedom under the
Constitution. Attempting to annoy another from religious complacency, and to alarm them
regarding existential consequences could also be a constitutionally protected freedom that could
be prosecuted under this statute. This statute is overbroad.
In Karenev v. State, 258 S.W.3d 210 (Tex.App.-Fort Worth 2008), [reversed on
preservation grounds] the Fort Worth Court of Appeals found the the same Section (a)(7) that was
prosecuted in the instant appeal before this Honorable Court to be unconstitutionally void for
vagueness.
The Fort Worth Court noted in Karenev that although the statute had been been previously
held unconstitutionally vague, it was amended and “the legislature has cured most of the
deficiencies in the statute...”
Section (a)(7), however, exhibits the same infirmities as the old statute that was held
unconstitutional. “The words “ annoy" and “ alarm" remain in the statute although they are now
joined by the words “ harass," “ abuse," “ torment," and “ embarrass." But, all these terms are
joined with a disjunctive “ or," and thus do nothing to limit the vagueness originally generated by
“ annoy" and “alarm."
-6- “Moreover, the additional terms are themselves susceptible to uncertainties of meaning.”
See Long v State, 931 S.W.2d 285 (1996), where the Texas Court of Criminal Appeals applied the
Fifth Circuit’s reasoning in Kramer v. Price, 712 F.2d 174 (5th Cir.1983) to find the Texas
Stalking statute to be void for vagueness.
POINT OF ERROR NUMBER TWO: The Appellant’s trial counsel was constitutionally inadequate and provided ineffective assistance of counsel due to a failure to challenge the Harassment Statute upon which the Defendant was convicted as being constitutionally void for vagueness and overbreadth.
The Appellant incorporates the relevant assertions in point of error number one herein,
specifically his contention that the statute under which the Appellant was prosecuted is void, and
that the Appellant’s conviction for violating a void statute should not stand.
Appellant writes this second point of error separately, and only if necessary, to prevent the
possibility of this Honorable Court of Appeals from disposing of the Appellant’s appellate
contention on any possible preservation of error grounds.
The Court of Criminal Appeals has stated that "a defendant may not raise for the first time
on appeal a facial challenge to the constitutionality of a statute." see Karenev v. State, 281 S.W.3d
428, 434 (Tex.Crim.App. 2009). This was the Opinion where the Court of Criminal Appeals
struck down the Ft, Worth court’s vagueness reversal discussed above.
Under Karenev, "[a] facial challenge to the constitutionality of a statute" falls within the
category of matters for which an objection is necessary to preserve error pursuant to Marin v.
State, 851 S.W.2d 275, 279-80 (Tex.Crim.App. 1993).
-7- In the instant case, the Appellant’s jury trial counsel did not make any facial challenge to
the constitutionality of the statute. It was only after the Appellant was convicted and the jury trial
counsel withdrew from representation that the undersigned counsel was appointed.
Appellant then asked the trial court through newly appointed counsel, both verbally and in
the form of a written pleading, to set aside the conviction due to the void statute, and to quash the
information and complaint. The trial court denied those requests.
If the Karenev/Marin rule stated above is interpreted to prevent raising a facial challenge
to the constitutionality of the statute for the first time before the trial court after jury verdict, then
the Appellant asserts in this point of error number two that he was denied his Sixth Amendment
right to the effective assistance of counsel.
The Appellant should not be denied his right to be free from conviction and prosecution
under a void statute simply because his trial counsel failed to lodge appropriate objections and
motions challenging the statute before trial.
To show that his trial counsel provided ineffective assistance, an appellant is first
required to show that the attorney’s performance “was deficient because it fell below an objective
standard of reasonableness.” Next, an appellant must also show that “a probability sufficient to
undermine confidence in the outcome existed that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).
Hindsight review of an attorney’s efforts will be highly deferential. The appellate court
"must indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance..." Basically, there is a presumption in favor of the trial
attorney’s actions. That presumption is that counsel’s actions and omissions were part of a trial
strategy. See Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).
-8- A single act or omission may render counsel’s performance ineffective, but it is not
required that each single act or omission alone constitute ineffectiveness. Some examples of a
single omission constituting ineffective assistance involve mental health claims. In Freeman v.
State; 167 S.W.3d 114 (Tex. App. 2005) trial counsel provided ineffective assistance by failing to
conduct an adequate investigation of mental health issues. Similarly, in Conrad v. State, S.W.3d
424 (Tex. App. 2002) an attorney rendered ineffective assistance when he failed to investigate the
possible insanity defense. Similarly, the Appellant’s ineffective assistance claim is predicated
upon a single omission: failing to challenge a statute that had been previously held void by a
Texas appellate court.
Courts routinely hold that most allegations of ineffective assistance are better brought
upon post-appellate habeas corpus applications, where an applicant can build a record regarding
the strategy and tactics, if any, involved with his counsel’s acts or omissions. Ineffectiveness is
often difficult to show on direct appeal, because any allegation of ineffectiveness have to be
within the existing record, and that record must affirmatively demonstrate the alleged
ineffectiveness. Generally the record on direct appeal is insufficient to rebut the presumption of
legitimate trial strategy. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003);
Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000); Hernandez v. State, 943 S.W.2d 930 (Tex.
App.---El Paso 1997);. Harling v. State, 899 S.W.2d 9, 12 (Tex. App. --San Antonio 1995).
In the instant case, if this Honorable Court of Appeals determines that the Appellant’s
constitutional claims are barred, waived, or not preserved by his jury trial counsel’s failure to raise
the claims pretrial, then that counsel was ineffective as a matter of law. There can be no
reasonable trial strategy in failing to challenge a void statute and thereby win the case. This
ineffective assistance claim can be decided based on the existent trial record, and without any
need to present it in a subsequent habeas corpus proceeding.
-9- SUMMARY
The Appellant has been convicted for violating a void statute. His conviction, fine, and
six months jail sentence are predicated upon a statute that is both void for vagueness, and void for
overbreadth. The trial court erred in failing to grant the Appellant’s request to set the conviction
aside and quash the complaint and information. If the Appellant’s post-verdict pre-sentence
challenge to the constitutionality of the statute was untimely, then he has received ineffective
assistance from his jury trial counsel, and the case should be reversed to enable him to advance
the constitutional challenges.
PRAYER Appellant prays that this Honorable Court reverse the decision of the trial court, and
remand this cause with orders that the Appellant not be again prosecuted for violating a void
statute.
Respectfully submitted,
/s/__________________________ PAT MONTGOMERY, TBN 14295350 111 SOLEDAD, SUITE 300 SAN ANTONIO, TX 78205 (210) 225-8940 Fax (978)285-4664 PatMontgomery@Gmail.com Attorney for Appellant
CERTIFICATE OF SERVICE AND WORD COUNT COMPLIANCE
Counsel certifies by his signature below that the word count is 3199, and that contemporaneously with the electronic filing of this Brief, he has provided a copy to:
1. The Bexar County District Attorney’s Office. 2. The Appellant.
Respectfully submitted, /s/ Pat Montgomery
-10-