Shirley Kramer v. Tom Price, Judge, County Criminal Court No. 5, and Carl Thomas, Sheriff, Dallas County, Texas

712 F.2d 174, 1983 U.S. App. LEXIS 24847

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 15, 1983
• Docket: 82-1185
• Status: Published

Opinions

WISDOM, Circuit Judge:

This appeal from the grant of a writ of habeas corpus requires us to decide whether the Texas Harassment Statute under which the petitioner was convieted is void for vagueness in violation of the first and fourteenth amendments to the United States Constitution. We conclude that it is and affirm.

I.

Shirley Kramer, the petitioner, was tried by a jury in state court and found guilty of harassment. Kramer and John Keiser lived together for several months during 1970. In 1971, Keiser married another woman, Anne, but Kramer continued to write to him frequently for three years following his marriage.¹ Six days after Anne Keiser returned home from the hospital with the couple’s first-born child, the United States Postal Service delivered a postcard addressed to Mr. Keiser. Affixed to the back of the postcard was the following message quoted from a newspaper advertisement:

Baby Problem Solved!

—with this beautiful

ALL METAL

CASKET-VAULT COMBINATION

CRYPT a CRIB

P.O. Box 11074

Cincinnati, Ohio 45211²

Based on this bizarre message, the State charged the petitioner with violating the Texas Harassment Statute, Tex.Penal Code Ann. § 42.07(a)(1). She was tried by a jury in state court, found guilty, and sentenced to six months imprisonment. The sentence, however, was suspended, and she was placed on probation for six months. The Texas Court of Criminal Appeals, en banc, affirmed. Kramer v. State, 605 S.W.2d 861 (Tex.Cr.App.1980) (en banc).

After exhausting her state remedies, Kramer sought habeas corpus relief in federal district court. The court found the Texas Harassment Statute to be unconstitutionally vague and overbroad, declared it void on both grounds, and entered judgment granting the writ. On appeal, the State challenges both conclusions and argues that the Harassment Statute protects important privacy interests. We address only the contention that the statute is void for vagueness.

II.

The Texas Harassment Statute, Tex.Penal Code Ann. § 42.07 provides:

(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;

The State argues that § 42.07 is not vague because the statute’s requirement of intent makes its application turn on the state of mind of the actor, and therefore ensures that the actor will have adequate notice of the proscribed conduct.

An enactment is void for vagueness³ under the due process clause of the fourteenth amendment if it fails to draw reasonably clear lines between lawful and unlawful conduct. Smith v. Goguen, 1974, 415 U.S. 566, 574-578, 94 S.Ct. 1242, 1247-1249, 39 L.Ed.2d 605, 612-615. Vague statutes fail to provide citizens with fair notice or warning of statutory prohibitions so that they may act in a lawful manner. Connally v. General Const. Co., 1926, 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328; Lanzetta v. New Jersey, 1939, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, 890; Papachristou v. City of Jacksonville, 1972, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115.

The infirmities of vagueness, however, extend beyond the lack of fair notice. The absence of a determinate standard gives police officers, prosecutors, and the triers of fact unfettered discretion to apply the law, and thus there is a danger of arbitrary and discriminatory enforcement. The Supreme Court recently defined the void-for-vagueness doctrine as follows:

As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.’ Where the legislature fails to provide such minimal guidelines, a criminal statute may permit ‘a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.’

Kolender v. Lawson,-U.S.-,-- -, 103 S.Ct. 1855, 1858-59, 75 L.Ed.2d 903 (1983) (citations omitted). See Hynes v. Mayor & Council of Borough of Oradell, 1976, 425 U.S. 610, 622, 96 S.Ct. 1755, 1761, 48 L.Ed.2d 243, 254; Grayned v. City of Rockford, 1972, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28. See also Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L. Rev. 67, 75-85 (1960). In the first amendment area, “[t]he very existence of ... [a] censorial power, regardless of how or whether it is exercised, is unacceptable.” Int'l. Soc’y For Krishna Consciousness v. Eaves, 5 Cir.1979, 601 F.2d 809, 822-23. When a statute is capable of reaching first amendment freedoms, the doctrine of vagueness “demands a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U.S. at 573, 94 S.Ct. at 1247, 39 L.Ed.2d at 612. See also Hynes v. Mayor & Council of Borough of Oradell, 425 U.S. at 620, 96 S.Ct. at 1760, 48 L.Ed.2d at 253; NAACP v. Button, 1963, 371 U.S. 415, 432-433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, 418; Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 75-85 (1960).

The State relies on Collection Consultants, Inc. v. State, 556 S.W.2d 787, 793-94 (Tex.Cr.App.1977), appeal dismissed, 1978, 436 U.S. 901, 98 S.Ct. 2228, 56 L.Ed.2d 399, for the proposition that “annoy” and “alarm” are not vague terms. In that case, the Court of Criminal Appeals relied on earlier decisions upholding the constitutionality of Article 476, V.A.P.C., the predecessor to the current Texas Harassment Statute. Noting that there were no meaningful distinctions between the language of the old statute and its replacement, the court relied on these earlier cases to justify its conclusion that § 42.07 was not vague.⁴ We find the reasoning of Collection Consultants unpersuasive.

The Supreme Court struck down a statute using the word “annoy” in Coates v. City of Cincinnati, 1971, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214. The city ordinance at issue in Coates made it a criminal offense for three or more individuals to assemble on public sidewalks and conduct themselves in a manner which might annoy passersby. The Ohio Supreme Court held that the statute was not vague in the light of its well-understood dictionary definition:

The ordinance prohibits, inter alia, ‘conduct ... annoying to persons passing by.’ The word ‘annoying’ is a widely used and well understood word; it is not necessary to guess its meaning. ‘Annoying’ is the present participle of the transitive verb ‘annoy’ which means to trouble, to vex, to impede, to incommode, to provoke, to harass or to irritate.

21 Ohio St.2d 66, 69, 255 N.E.2d 247, 249.

The Supreme Court rejected the Ohio Supreme Court’s simple reliance on a dictionary meaning. The Court found two closely related flaws which rendered the statute void for vagueness. First, the Court recognized that some vagueness inheres in the word annoy:

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.

402 U.S. at 614, 91 S.Ct. at 1688, 29 L.Ed.2d at 217. Second, the ordinance did not specify and the Ohio Supreme Court “did not indicate upon whose sensitivity a violation does depend — the sensitivity of the judge or jury, the sensitivity of the arresting officer, or the sensitivity of a hypothetical reasonable man”. 402 U.S. at 613, 91 S.Ct. at 1688, 29 L.Ed.2d at 217. The inherent vagueness in attempting to define what annoys people and the failure to specify whose sensitivities are relevant compelled the Court to conclude that the ordinance was vague.

We conclude that the Texas Harassment Statute suffers from the same infirmities as the ordinance in Coates. The Texas courts have made no attempt to construe the terms “annoy” and “alarm” in a manner which lessens their inherent vagueness.⁵ Of greater importance, the Texas courts have refused to construe the statute to indicate whose sensibilities must be offended. See Kramer v. State, 605 S.W.2d 861 (1980 Tex.Cr.App.); Collection Consultants, Inc. v. State, 556 S.W.2d 787 (Tex.Cr. App.1977). Coates recognized that a statute is unconstitutionally vague when the standard of conduct it specifies is dependent on each complainant’s sensitivity. Whereas Coates specified that a passerby’s sensitivity must be offended, the statute in this case makes no attempt at all to specify whose sensitivity must be offended. In the absence of judicial clarification, enforcement officials, as well as the citizens of Texas, are unable to determine what conduct is prohibited by the statute.⁶

The State maintains that the Texas Harassment Statute is restricted to individuals who act with an intent to annoy. An intent requirement, it contends, ensures that the actor will have fair notice that his contemplated conduct is forbidden. We disagree. Specifying an intent element does not save § 42.07 from vagueness because the conduct which must be motivated by intent, as well as the standard by which that conduct is to be assessed, remain vague. Whatever Kramer’s intent may have been, if she was unable to determine the underlying conduct proscribed by the statute, then the statute fails on vagueness grounds.

III.

By failing to provide reasonably clear guidelines, § 42.07 gives officials unbounded discretion to apply the law selectively and subjects the exercise of the right to speech to an unascertainable standard. Accordingly, we hold that the Texas Harassment Statute is unconstitutional on its face for vagueness.⁷

AFFIRMED.

1 . Kramer’s letters and postcards to John Keiser were so voluminous that they filled two to three grocery sacks. Kramer, 605 S.W.2d at 865 (Tex.Cr.App.1980) (en banc).

2 . This postcard was addressed to John Keiser but was removed from the couple’s mailbox by his wife, Anne, the complainant in the state’s criminal proceedings. In her earlier correspondence to Keiser, Kramer used restricted delivery postal service which ensures that the addressee will be the actual recipient of the posted items. The postcard at issue was not marked “restricted delivery”. In the state appellate court’s view, Kramer’s failure to use the restricted delivery service in mailing the postcard, combined with her knowledge of John Reiser’s work schedule and Anne Reiser’s pregnancy, supported the prosecution’s assertion that Kramer intended that Anne Reiser receive and read the postcard. The court found an intention to annoy and alarm in the message itself, and Kramer’s knowledge of Anne Reiser’s status as a new mother. See Kramer, 605 S.W.2d at 865.

3 . A defendant may challenge the constitutionality of a statute on vagueness grounds, even though the statute may not be vague as applied to his conduct, where the statute at issue purports to regulate or proscribe rights of speech protected by the first amendment. See Coates v. City of Cincinnati, 1971, 402 U.S. 611, 619-620, 91 S.Ct. 1686, 1690-1691, 29 L.Ed.2d 214, 220-221 (White, J., dissenting). See also Gooding v. Wilson, 1972, 405 U.S. 518, 521, 92 S.Ct. 1103, 1105-1106, 31 L.Ed.2d 408, 413.

4 . The cases relied upon by the court in Collection Consultants include Schuster v. State, 450 S.W.2d 616 (Tex.Cr.App.1970); Alobaidi v. State, 433 S.W.2d 440 (Tex.Cr.App.1968), cert. denied, 1968, 393 U.S. 943, 89 S.Ct. 313, 21 L.Ed.2d 281; and LeBlanc v. State, 441 S.W.2d 847 (Tex.Cr.App.1969). As pointed out by Judge Roberts in his dissent in Kramer, the Kramer majority’s reliance on these cases is a non sequitur which adds nothing to resolving the vagueness issue.

5 . An example of a limiting construction which saved a vague statute can be found in Chaplin-sky v. New Hampshire, 1941, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031. The Court upheld a statute that punished “offensive, derisive or annoying” words because the state court had construed the statute to apply to words that “have a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed”. The state court applied the statute to words that men of common intelligence would understand as being likely to cause an average addressee to fight.

6 . We acknowledge that the statute at issue could have been given a narrowing construction that would have saved it from constitutional infirmity. Our point is that the Texas court refused to narrow the statute by, for example, holding that it applies to writings which would annoy the hypothetical reasonable person and that its standard does not vary with the sensitivity of each complainant. As the Supreme Court stated in Ashton v. Kentucky, 1966, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469, “where an accused is tried and convicted under a broad construction of an Act which would make it unconstitutional, the conviction cannot be sustained on appeal by a limiting construction which eliminates the unconstitutional features of the Act, as the trial took place under the unconstitutional construction of the Act.” 384 U.S. at 198, 86 S.Ct. at 1409, 16 L.Ed.2d at 471; see Shuttlesworth v. Birmingham, 1965, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176. Our examination of the trial court’s instruction to the jury convinces us that no attempt was made to limit the meaning of the statute in a manner that cured its vagueness.

7 . Our finding on the issue of vagueness precludes the need to address the state’s arguments with respect to overbreadth.