PD-0659-15 03/12/2016
- "What is the correct definition of the phrase 'communicating . . . in a . . . harassing manner' as used in the statute for protective orders in family violence cases, and, as applied in this case, did it penalize protected speech in violation of Petitioner's First Amendment rights? [Tex. Pen. Code § 25.07(A)(1)(A)]"
- "Whether this is a 'content-based' First Amendment case and ought to have been decided by a different standard of review, 'strict scrutiny' as enunciated in the case of Ex parte Lo."
- "If strict scrutiny is the proper standard of review, whether the correct standard of review can be waived."
Wagner was convicted of violating a protective order obtained by his then-wife for intentionally or knowingly communicating with her "in a threatening and harassing manner." On appeal, he challenged the constitutionality of the term "in a threatening and harassing manner" in Tex. Pen. Code § 25.07(A)(1)(A) as being overly broad and vague. With regard to the facial challenge, Wagner claimed that the standard in Ex parte Lo is applicable. So instead of having a presumption of constitutional validity and the burden placed upon the defendant to prove otherwise, the burden would be on the State to prove validity of the content-based regulation. The court of appeals rejected that argument, concluding Wagner raised it too late by bringing it up for the first time in a reply brief and that the issue was inadequately briefed. Addressing the merits, the court held it was not overly broad because its scope is circumscribed. Using Webster's dictionary definition of "harassment," the court explained that its terms exclude unprotected speech under the First Amendment. Nor is the term vague as applied. Wagner continued to communicate with the victim even though she told him to stop. And because Wagner's as-applied challenge fails, so does his facial challenge.
Wagner claims that the court erred to rely on Webster's definition. He urges the Court to adopt the "reasonable person" standard and definition in Garcia v. State, 212 S.W.3d 877 (Tex. App.—Austin 2006), which, in turn, relied on a Texas Supreme Court case defining it as: a course of conduct directed at another causing or tending to cause substantial distress and having no legitimate purpose. The court of appeals' definition is too simplistic and will be difficult for law enforcement to apply. Wagner next argues that the Ex parte Lo standard applies because an examination of the content is needed to determine whether the communication was made in "harassing manner."
