1. “The court of appeals decided a facial overbreadth claim that was not preserved at trial or raised on appeal.”
2. “Is Tex. Penal Code § 42.07(a)(7), which prohibits harassing electronic communications, facially unconstitutional?”
Barton was charged with harassment by sending repeated electronic communications with the intent to harass, annoy, alarm, etc. He alleged in his pretrial writ that the statute is unconstitutionally vague. The trial court denied the application.
The court of appeals reversed. It held that the statute is both vague and that it is facially overbroad, i.e., it restricts a substantial amount of protected speech relative to its plainly legitimate sweep. It rejected the State’s argument on rehearing that Barton never raised an overbreadth challenge in the trial court, apparently because the State addressed the argument in its response brief.
The State raises procedural and substantive issues in its petition. First, it argues that words like “chilling” and “overbroad” do not invoke the overbreadth doctrine when no cases are cited, no framework is articulated or applied, and the point appears to be that a vagueness challenge becomes easier when protected speech is implicated. Second, the court of appeals was wrong to disregard Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010), which held that the statute at issue does not implicate protected speech. Per Scott, a defendant in Barton’s shoes cannot mount a facial vagueness challenge when the statute is clear as applied to his conduct. Moreover, the overbreadth doctrine is not applicable outside the First Amendment context. The State disagrees that Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014), implicitly overruled Scott on this point by recognizing harassing speech that also has an intent to communicate an idea. Finally, the State points out that 1) vagueness and overbreadth are incompatible because the latter requires a definitive construction of the statute, 2) the existence of “dual intent” harassment would not mean that protected speech is improperly restricted, and 3) Section 42.07(a)(7) includes an objective standard, eliminating vagueness concerns.