
    Sean LEBO, Appellant v. The STATE Of Texas, Appellee
    No. 04-14-00383-CR
    Court of Appeals of Texas, San Antonio.
    Delivered and Filed: August 26, 2015
    Discretionary Review Refused February 3, 2016
    
      Patrick Barry Montgomery, Attorney At Law, San Antonio, TX, for Appellant.
    Andrew Warthen, Paul Elizondo Tower, San Antonio, TX, for Appellee.
    ' Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C. Martinez, Justice, Luz Elena D. Chapa, Justice
   OPINION

Opinion by

Rebeca C. Martinez, Justice

Sean Lebo appeals his conviction for harassment through electronic communications, a Class B Misdemeanor. Tex. Penal Code Ann. § 42.07(a)(7) (West Supp.2014). Lebo asserts on appeal that the .statute proscribing harassment by electronic communications is unconstitutional on its face, and therefore his conviction is void and must be reversed. We disagree, and affirm the trial court’s judgment.

Background

' In 2010, Bexar County Sheriffs Détec-tive Jason Layman investigated a criminal case involving Lebo. On December 21, 2012, Lebo contacted Layman by email and accused him of destroying evidence and being a felon, corrupt, and incompetent. Lebo threatened to seek Layman’s arrest. Two days later, Lebo emailed Layman twice, again accusing him of being corrupt, threatening to sue Layman and have him arrested, .and stating; “Do you know what they do to Police Officers in prison?” On' December 25, 2012, Lebo sent five emails to Layman calling him names, threatening him with civil and criminal proceedings^ and threatening his family. Layman responded to Lebo by email on December 26, 2012, requesting that Lebo stop sending emails for nonofficial business and referring him to the appropriate contact to make, a complaint about his professional conduct. Lebo continued sending Layman threatening and combative emails during 2013, along with letters through the regular mail. Layman received a total of almost 40 emails from Lebo.

On April 16, 2013, Lebo was charged with harassing Detective Layman through repeated electronic communications. See Tex. Penal Code Ann. § 42.07(a)(7). The information alleged that, on or about January 3, 2013, Lebo, “with intent to harass, annoy, alarm, abuse, torment, and embarrass another, namely, Jason Layman* ;., did. send repeated electronic-communications .to Jason Layman in a- manner- rear sonably likely to .harass, annoy, alarm, abuse, torment, embarrass, and offend another, .to-wit: by sending multiple electronic mail messages.” Lebo .pled not guilty and was tried by a jury, which found him guilty. The trial court imposed a sentence of six months’ confinement in jail, plus a $1,000 fine, Lebo appealed.

Discussion

. Lebo raises two related issues on appeal; (1) the portion of the harassment statute pertaining to electronic communications is unconstitutional on its face; and (2) his original trial counsel was ineffective for failing to -raise the constitutional challenge earlier in the trial proceedings. The relevant subsection of the statute provides as follows:

§ 42.07 Harassment
(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.

.Tex. Penal Code Ann. § 42.07(a)(7) (West Supp.2014). The term “electronic communication” is defined to include “a communication, initiated by electronic mail.” Id. § 42.07(b)(1) (West Supp, 2014).

Constitutionality of Section 42.07(a)(7)

Preservation of Error

We 'must first address whether Lebo preserved his facial constitutional challenge. The State ■ argues that Lebo failed to raise his constitutional challenge in the trial court, and has thus waived the issue. See Karenev v. State, 281 S.W.3d 428, 434 (Tex.Crim.App.2009) (holding that a facial challenge to a statute’s constitutionality falls within the category of rights that may be forfeited under Marin, and therefore may not be raised for the first time on .appeal); see also Marin v. State, 851 S.W.2d 275, 279-80 (Tex.Crim.App.1993). (establishing three categories of rights). The State .acknowledges that Lebo filed a post-verdict motion to set aside the conviction and dismiss the information on the basis that the. statute is overbroad and unduly vague, and thus unconstitutional. However, the, State contends the motion and argument contained only bald, conclusory statements and presented no substantive analysis, and that defense counsel acknowledged that the motion was filed to preserve the issue for appeal. Lebo concedes that the post-verdict motion was the first time he raised the* issue of constitutionality of the statute; the motion was filed on the day of the sentencing hearing by new counsel who was appointed after Lebo was found guilty by the jury. , A brief hearing was held on the motion a few days later, and the court denied the motion.

Lebo’s argument in his trial court mo-. tion and on appeal is identical — that subsection (a)(7) of the harassment statute is unconstitutional on its face, as both over-broad in violation of the .right to free speech and unduly vague in violation of the right to due process. We conclude that Lebo preserved his complaint that the statute is facially unconstitutional. That issue was presented to the trial court at the sentencing hearing and again in a hearing held a few days later. Thus, Lebo’s constitutional claim was presented to the trial court while it still had jurisdiction to set aside the conviction, and the trial court ruled on Lebo’s motion. See Tex. R. Ápp. P, 33.1(a). We will therefore address the merits of Lebo’s argument that section 42.07(a)(7) is unconstitutional on its face.

Facially Unconstitutional

The constitutionality of a criminal statute is a question of law' which we review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex.Crim.App.2013). In assessing a statute’s constitutionality, an appellate court starts with the presumption that the statute is valid and that the legislature did not act arbitrarily or unreasonably in enacting the statute. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002). The party challenging the statute has the burden of establishing its unconstitutionality. Id. We must uphold the statute if we can determine a reasonable construction that renders it constitutional. See Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App(1978).

An argument that a penal stat-' ute is unconstitutional on its. face is based solely on the text of the statute and the' charging instrument, and constitutes a claim that “the statute, by its terms, always operates unconstitutionally.” Scott v. State, 322 S.W.3d 662, 665 n. 1 (Tex.Crim.App.2010); Gillenwaters v. State, 205 S.W.3d 534, 536 n. 2 (Tex.Crim.App.2006). Lebo argues section 42.07(a)(7) is unconstitutional because it is overbroad in that it invades the area of protected speech, and because it is unduly vague in that it contains undefined terms which deprive a person of adequate notice and give too much discretion in the enforcement of the statute. “A statute may be challenged as overbroad, in violation of the Free Speech Clause of the First Amendment, if, in addition to proscribing activity that may be constitutionally forbidden, it sweeps within its coverage a substantial amount of expressive activity that is protected by the First Amendment.” Scott, 322 S.W.3d at 665 n. 2; Morehead v. State, 807 S.W.2d 577, 580 (Tex.Crim.App.1991). “A statute may be challenged as unduly vague, in violation of the Due Process Clause of the Fourteenth Amendment, if it does not: (1) give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and (2) establish definite guidelines for law enforcement. Scott, 322 S.W.3d at 665 n. 2; Bynum v. State, 767 S.W.2d 769, 773 (Tex.Crim.App.1989). However, an argument that a statute is unduly vague usually requires a showing that the statute is overly vague “as applied” to the particular defendant. Scott, 322 S.W.3d at 665 n. 3; Bynum, 767 S.W.2d at 774. As noted, Lebo does not make an as-applied argument. An exception to the requirement of an as-applied challenge exists, however, if the statute implicates the First Amendment’s guarantee of free speech, “i.e., if the statute, as authoritatively construed, is susceptible of application to speech guaranteed by the First Amendment.” Scott, 322 S.W.3d at 665 n. 3; see United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (noting that in such a situation, a defendant may argue that the statute is overbroad on its face because it is unclear whether it proscribes a substantial amount of protected speech); see also Gooding v. Wilson, 405 U.S. 518, 520-21, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (same).

Thus, Lebo’s overbreadth and vagueness challenges hinge on whether section 42.07(a)(7) proscribes communications which fall within the scope of protected free speech. As the court did in Scott, we construe the gist of Lebo’s argument to be that subsection (a)(7) is “overbroad on its face because its inherent vagueness makes it unclear whether it prohibits a substantial amount of protected speech.” See Scott, 322 S.W.3d at 665 n. 3.

In Scott, the court addressed the question of whether the telephone harassment' portion of section 42.07 implicates the free-speeeh guarantee of the First Amendment in the context of an overbreadth/vagueness challenge. Id. at 668-69 (addressing section 42.07(a)(4)). The court first analyzed the scope of protection granted by the First Amendment’s free speech clause, stating that it “generally protects the free communication and receipt of ideas, opinions, and information” but also noting that “[t]he 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. (internal citations omitted) (emphasis added). The court then applied statutory interpretation principles to determine the meaning of section 42.07(a)(4), focusing on its plain text as applied in the charging instrument. Id. at 669. The court interpreted the statute’s plain text as requiring the actor to have the specific intent “to inflict harm on the victim in the form of one of the listed types of emotional distress.” Id. In addition, the court stated the statute requires the actor to make repeated telephone calls to the victim, and to make the calls in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend an average person. Id. (also noting the statute’s text does not require the use' of spoken words). The court then concluded that section 42.07(a)(4) does not implicate the First Amendment’s guarantee of free speech. Id. The court explained its reasoning as follows:

The statutory subsection, by its plain text, is directed only at persons who, with the specific intent to inflict emo-, tional distress, repeatedly use the telephone to invade another person’s personal privacy and do so in a manner reasonably likely to inflict emotional distress. Given that 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. That is to say, in the usual case, 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. To the extent that the statutory. subsection is susceptible of application to communicative conduct, it is susceptible of such application only when that communicative conduct 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 669-70. The court thus held that section 42.07(a)(4) is “not susceptible of application to communicative conduct that is protected by the First Amendment.” Id. at 669.

" We consider the free-speech analysis in Scott equally applicable "to section 42.07(a)(7). The ‘ statutory text in subsection (a)(7) dealing with electronic communications is identical to the text in subsection (a)(4) dealing with telephone communications, with the sole exception that (a)(4) provides 'an alternative manner of committing the offense by making repeated telephone calls ’ “anonymously.” Tex. Penal CoPe Ann. § 42.07(a)(4) (providing that a person commits harassment by causing thé telephone of another to Ag repeatedly or by making repeated telephone’ communications anonym°usly or' in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another). The difference in text is inconsequential to the First Amendment analysis. In addition, the -Scott analysis dealt with the same manner of committing harassment as Lebo’s-case. See -Scott, 322 S.W.3d at 666 (defendant was - not charged with making repeated anonymous calls, but with making repeated calls in a manner likely to harass, annoy, alarm, etc.). All of the subsections of section 42.07 have the -same- subjective intent requirement, i.e., that the actor engage in the particular form of communicative conduct with the specific intent to “inflict harm on the victim in the fom of one of the listed types of emotional distress,” i.e., “harass, annoy, alarm, abuse, torment, embarrass, or offend.” See1 id. at 669. Therefore, an actor whose .email communications run afoul of .subsection (a)(7) will have no more of an intent to engage in legitimate communication of ideas, opinions, or information than an actor whose telephone calls violate subsection (a)(4). As Scott stated with respect to telephone harassment, repeated emails made with the specific intent to inflict one of the designated types of emotional distress “for its own sake” invade the substantial privacy interests of the victim in “an essentially intolerable manner;” thus, they are not the type of legitimate communication that is protected by the First Amendment. See id. at 670. Based on this reasoning, we hold that the electronic communications proscribed by subsection (a)(7) do not implicate protected speech under the First Amendment. Lebo has failed to establish that section 42.07(a)(7) violates the constitution by being overbroad or unduly vague. See id. at 665 n. 3; see also Gooding, 405 U.S. at 520-21, 92 S.Ct. 1103.

Ineffective Assistance

Lebo’s second issue on appeal asserts his original trial counsel rendered ineffective assistance by failing to challenge the constitutionality of the statute earlier in the trial process, i.e., before trial or during the guilt/innocence phase. As Lebo notes, this issue is conditioned on our holding that he failed to preserve error with respect- to his- constitutional challenge. Having addressed Lebo’s constitutional challenge -on its merits, there is no basis for Lebo’s ineffective assistance claim and we need not consider the issue. See Tex. R. App. P. 47.1.

Conclusion

Based on the foregoing reasons, we overrule Lebo’s issues on appeal and affirm the trial court’s judgment. 
      
      . In a recent plurality opinion, the court allowed á defendant to challenge his conviction as void for the first time on petition for discretionary review to the Court of Criminal Appeals where the statute under which he was convicted had been declared facially unconstitutional during the pendency of his appeal ■ in the intermediate court of appeals, thereby rendering his conviction void. See Smith v. State, 463 S.W.3d 890, 893-95 (Tex.Crim.App.2015). The court made clear, however, that the general principle stated in Kare-nev, that a defendant’ cannot raise a facial challenge to the. constitutionality of a statute for the first time on appeal, remains valid. Id. at 896 (distinguishing Karenev because the defendant there was attacking a valid statute that had not yet been declared void).
     
      
      . Lebo makes no effort on appeal to discuss the evidence developed at trial, and does not argue the statute is' unconstitutional as applied to the facts of his particular conduct; thus,' he does not attempt to raise an as-..applied challenge. See Scott v. State, 322 S.W.3d 662, 665 n. 1 (Tex.Crim.App.2010) (noting that an as-applied challenge to a statute’s constitutionality is a claim that "the statute operates unconstitutionally with respect to the claimant because of his particular circumstances”) (citing Gillenwaters v. State, 205 S.W.3d 534, 536 n. 3 (Tex.Crim.App.2006)).
     
      
      . The court’s definition of the term “repeated” as meaning more than one telephone call "in close enough proximity to properly be termed a single episode” was later held to be dicta, as well as confusing and unfounded in statutory interpretation principles, and Scott was abrogated with respect to that portion of the opinion. See Wilson v. State, 448 S.W.3d 418, 422-23 (Tex.Crim.App.2014) (disavowing the quoted portion of the definition, but agreeing with Scott’s reference to the dictionary definition of the common meaning of "repeated” as "reiterated,” "recurring," or "frequent.”).
     