Opinion
04-21-00412-CR
08-24-2022
EX PARTE Kevin OWENS
DO NOT PUBLISH
From the 187th Judicial District Court, Bexar County, Texas Trial Court No. 2021-CR-1906 Honorable Stephanie R. Boyd, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Beth Watkins, Justice Liza A. Rodriguez, Justice
MEMORANDUM OPINION
REBECA C. MARTINEZ, CHIEF JUSTICE
AFFIRMED
Appellant Kevin Owens appeals from an order denying his pretrial application for writ of habeas corpus. We affirm the trial court's order.
Background
Owens was charged with violating section 42.072 of the Texas Penal Code, the stalking statute. Owens filed an application for writ of habeas corpus on the basis that the statute is unconstitutionally overbroad under the First Amendment. The trial court denied Owen's habeas corpus application and Owens timely perfected this appeal.
Because Owens makes a facial challenge to the stalking statute, the specific facts of his case are irrelevant. See Ex parte Lo, 424 S.W.3d 10, 14 n.2 (Tex. Crim. App. 2013) (facts of case only matter when appellant makes "applied challenge" to statute).
Standard of Review
A defendant may file a pretrial application for writ of habeas corpus to raise a facial challenge to the constitutionality of the statute under which the defendant is charged. Ex parte Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App. 2014); Ex parte Zavala, 421 S.W.3d 227, 231 (Tex. App.-San Antonio 2013, pet. ref'd). Whether a statute is facially unconstitutional is a question of law subject to de novo review. Ex parte Lo, 424 S.W.3d at 14. We make every reasonable presumption in favor of the statute's constitutionality, unless the contrary is clearly shown. Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). The challenger normally bears the burden to establish the statute is unconstitutional. Ex parte Lo, 424 S.W.3d at 15.
Applicable Law
"A facial challenge attacks the statute itself rather than the statute's application to the defendant." Ex parte Fujisaka, 472 S.W.3d 792, 794 (Tex. App.-Dallas 2015, pet. ref'd) (citing Peraza, 467 S.W.3d at 514). Ordinarily, to mount a successful facial challenge, the challenger must establish that no set of circumstances exists under which the statute would be valid or that the statute lacks any plainly legitimate sweep. Peraza, 467 S.W.3d at 514; see also United States v. Stevens, 559 U.S. 460, 472 (2010). However, in the case of statutes that encroach upon activity protected by the First Amendment, the challenger may also bring a "substantial overbreadth" challenge. Ex parte Perry, 483 S.W.3d 884, 902 (Tex. Crim. App. 2016). Under such a facial challenge, the overbreadth of a statute must be "substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep." Ex parte Nuncio, No. PD-0478-19, 2022 WL 1021276, at *6 (Tex. Crim. App. Apr. 6, 2022) (quoting Ex parte Perry, 483 S.W.3d at 902). The statute must prohibit a substantial amount of protected expression, and the danger that the statute will be unconstitutionally applied must be realistic and not based on "fanciful hypotheticals." Id.; see Ex parte Johnston, No. 09-19-00445-CR, 2021 WL 1395564, at *5 (Tex. App.-Beaumont Apr. 14, 2021, no pet.) (mem. op., not designated for publication) ("[W]e do not invalidate a statute as overbroad merely because it is possible to imag[ine] some unconstitutional applications, but instead must first determine if the statute reaches a substantial amount of constitutionally protected speech.").
This type of facial challenge may be made when a statute restricts or punishes speech based upon its content. Ex parte Lo, 424 S.W.3d at 15. A law is "content-based" if it distinguishes between favored and disfavored speech on the basis of the views expressed or if it is necessary to review the content of the speech in order to determine whether the speaker violated the law. Thompson, 442 S.W.3d at 345. A content-based regulation that distinguishes favored from disfavored speech based on the views expressed is presumptively invalid, and the government bears the burden to rebut the presumption. Ex parte Lo, 424 S.W.3d at 15.
"The First Amendment literally forbids the abridgment only of 'speech[.]'" Ex parte Sanders, No. PD-0469-19, 2022 WL 1021055, at *8-9 (Tex. Crim. App. Apr. 6, 2022) (quoting Texas v. Johnson, 491 U.S. 397, 404 (1989)). However, the First Amendment's "protection does not end at the spoken or written word." Id. (quoting Johnson, 491 U.S. at 404). "[T]he Constitution looks beyond written or spoken words as mediums of expression." Id. (quoting Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995)).
The Supreme Court has rejected "the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Id. (quoting United States v. O'Brien, 391 U.S. 367, 376 (1968)). Instead, First Amendment protection extends "only to conduct that is inherently expressive." Id. (quoting Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 66 (2006)). Where the conduct does not have a significant expressive element, then "the First Amendment is not implicated by the enforcement of a [law] of general application[.]" Id. (quoting Arcara v. Cloud Books, Inc., 478 U.S. 697, 706-07 (1986)). Such laws, applicable to "nonexpressive conduct," do not "[have] anything to do with the First Amendment." Id. (quoting Virginia v. Hicks, 539 U.S. 113, 123 (2003)).
Protected Speech
On appeal, Owens brings one issue-contending the trial court erred in denying his application because the stalking statute under which he was charged is facially unconstitutional under the First Amendment because the statute is substantially overbroad. We first examine whether the stalking statute regulates protected speech under the First Amendment.
"The first step in an overbreadth analysis is to determine whether the statute reaches a substantial amount of activity protected by the First Amendment." Ex parte Fujisaka, 472 S.W.3d at 795 (citing City of Hous., Tex. v. Hill, 482 U.S. 451, 458-59 (1987)). "If the law does not reach a substantial amount of constitutionally protected activity, then the overbreadth challenge fails." Id. (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982)).
The stalking statute provides:
(a) A person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct that:
(1)constitutes an offense under Section 42.07, or that the actor knows or reasonably should know the other person will regard as threatening:
(A)bodily injury or death for the other person;
(B) bodily injury or death for a member of the other person's family or household or for an individual with whom the other person has a dating relationship; or
(C) that an offense will be committed against the other person's property;
(2)causes the other person, a member of the other person's family or household, or an individual with whom the other person has a dating relationship to be placed in fear of bodily injury or death or in fear that
an offense will be committed against the other person's property, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and
(3) would cause a reasonable person to:
(A)fear bodily injury or death for himself or herself;
(B) fear bodily injury or death for a member of the person's family or household or for an individual with whom the person has a dating relationship;
(C) fear that an offense will be committed against the person's property; or
(D)feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.Tex. Penal Code Ann. § 42.072(a).
Owens contends that the stalking statute generally restricts "pure speech," but he does not point to which part of the statute restricts protected speech. See Ex parte Fujisaka, 472 S.W.3d at 796 ("Facial overbreadth . . . attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from "pure speech" toward conduct[.]" (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)). Instead, Owens argues the language in the indictment shows that the stalking statute applies to pure speech because it provides that Owens was prosecuted for "verbal threats through electronic communications." However, because this is a facial challenge, the specific facts of Owens's case are irrelevant. See Ex parte Lo, 424 S.W.3d at 14 n.2; see also Ex parte Perry, 483 S.W.3d at 895 ("[P]retrial habeas is generally not available to test the sufficiency of the charging instrument or to construe the meaning and application of the statute defining the offense charged."). On this point, the Court of Criminal Appeals has instructed, "[i]f a claim designated as a facial challenge is in fact an as-applied challenge, courts should refuse to consider the merits of the claim." Ex parte Ellis, 309 S.W.3d 71, 80 (Tex. Crim. App. 2010). Other than the reference to his indictment, Owens failed to show how the statute "reaches a substantial amount of activity protected by the First Amendment." Ex parte Fujisaka, 472 S.W.3d at 795. Therefore, Owens failed to meet the initial burden for his overbreadth challenge to the stalking statute. See id.
Owens's argument that the stalking statute is an impermissible content-based regulation fails for the same reason. See Ex parte Lo, 424 S.W.3d at 25. Owens argues the stalking statute is content-based because it restricts speech only if it "would cause a reasonable person to . . . fear bodily injury or death for himself or herself," which requires examination of the content of the speech in question to decide if the speaker violated the law. Tex. Penal Code Ann. § 42.072(a)(3)(A); see Ex parte Lo, 424 S.W.3d at 15 n.12. The State contends that the stalking statute does not invade protected areas of the First Amendment. We hold that the stalking statute does not implicate the freedom of speech protections of the First Amendment because it prohibits non-speech conduct.
The Court of Criminal Appeals recently held that sections 42.07(a)(4) and 42.07(a)(7) of the Texas Penal Code-which are included as prohibited conduct in the stalking statute-restrict non-speech conduct in ways that do not implicate the First Amendment. See Ex parte Barton, No. PD-1123-19, 2022 WL 1021061, at *6 (Tex. Crim. App. Apr. 6, 2022) (holding section 42.07(a)(7) of the Texas Penal Code, the electronic harassment statute, fails to implicate the First Amendment's freedom of speech protections because it prohibits non-speech conduct); see also Ex parte Sanders, 2022 WL 1021055, at *13-14 (reaffirming Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010) and holding section 42.07(a)(4) of the Texas Penal Code, the telephone harassment statute, regulates non-speech conduct that does not implicate the First Amendment "even though words may be used in the commission of the offense.").
Here, the stalking statute's language provides that a person commits the offense if "on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, [he] knowingly engages in conduct that:" 1) constitutes an offense under section 42.07, the harassment statute, or that the actor knows or reasonably should know that the other person will regard as threatening bodily injury or death or threatening that an offense will be committed against the other person's property; 2) causes the other person to be placed in fear of bodily injury or death or that an offense will be committed against the other person's property or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and 3) would cause a reasonable person to be placed in fear of bodily injury or death, fear that an offense will be committed against the person's property, or feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended. See Tex. Penal Code Ann. § 42.072(a)(1)-(3).
Similar to the statute examined in Ex parte Sanders, "the text [of the stalking statute] does not require that the actor use spoken words." 2022 WL 1021055, at *11 (quoting Scott, 322 S.W.3d at 669). Conduct that the "actor knows or reasonably should know the other person will regard as threatening[,]" and conduct that "causes the other person, a member of [their] household, or an individual with whom the other person has a dating relationship to be placed in fear of bodily injury or death or in fear that an offense will be committed against the other person's property, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended" can be made without any words at all. See id. (noting that prohibited conduct in telephonic harassment statute could be made "in a harassing, annoying, alarming, abusive, tormenting, embarrassing, or offending manner without any words used at all.").
Even if words are used to commit the offense in the stalking statute, the statutory conduct prohibited by the stalking statute is distinct from the previously recognized categories of expressive conduct. See id. (noting historically recognized categories of expressive speech); see also Ex parte McDonald, 606 S.W.3d 856, 863-64 (Tex. App.-Austin 2020, pet. ref'd) (rejecting overbreadth and vagueness challenges to harassment statute and noting that a person who violates the statute has intent to harm, not intent to engage in legitimate communication of ideas, opinions, or information). A repeated scheme of conduct that an actor knowingly engages in which: the actor knows or reasonably should know would place another in fear of bodily injury or death or threatening that an offense will be committed against the other person's property; causes the other person to be placed in fear of bodily injury or death or that an offense will be committed against the other person's property or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and would cause a reasonable person to be placed in fear of bodily injury or death, fear that an offense will be committed against the person's property, or feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended, is all conduct that "invade[s] the substantial privacy interests of the victim in 'an essentially intolerable manner'" and thus is "not the type of legitimate communication that is protected by the First Amendment." Lebo v. State, 474 S.W.3d 402, 407-08 (Tex. App.-San Antonio 2015, pet. ref'd) (quoting Scott, 322 S.W.3d at 670); see Tex. Penal Code Ann. § 42.072; Scott, 32 S.W.3d at 670 ("[P]ersons whose conduct violates § 42.07(4)(a) 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."); cf. Ex parte Barton, 2022 WL 1021061, at *6 (noting that telephone harassment statute is a restriction on conduct that is non-expressive and thus not speech "even if the offense is committed using words, and even if the person does not have the sole intent to harass, annoy, alarm, abuse torment, or embarrass another.").
Based on this reasoning, we hold that the stalking statute does not implicate protected speech under the First Amendment. See Ex parte Barton, 2022 WL 1021061, at *6; Ex parte Sanders, 2022 WL 1021055, at *13-14.
Rational Basis
Because we hold that the stalking statute does not implicate the First Amendment's freedom of speech protections, we use "the familiar 'rational basis' test" to determine whether the statute is facially unconstitutional. See Ex parte Barton, 2022 WL 1021061, at *7 (quoting Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461 (1981)). "The default, 'general rule' or 'standard' is that state action is 'presumed to be valid' and will be upheld if it is but 'rationally related to a legitimate state interest.'" Id. (quoting City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)). "This general rule 'gives way, however,' when a state action either 'classifies by race, alienage, or national origin,' or 'impinge[s] on personal rights protected by the Constitution.'" Id. (quoting Cleburne Living Ctr., 473 U.S. at 440); see Romer v. Evans, 517 U.S. 620, 631 (1996) ("[I]f a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end."). In applying the rational basis test, "a court should spurn any attempt to turn [the] review into a debate over the wisdom, eloquence, or efficacy of the law in question." Id. Rational-basis review should focus solely on the rationality of the law or state action. Id. "Should we determine that the State has invoked a legitimate governmental purpose and, in enforcing its law, has charted a course that is 'rationally related' to it, 'our inquiry is at an end.'" Id. (quoting FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 314 (1993)).
The conduct regulated by the stalking statute-repeatedly engaging in conduct which: the actor knows or reasonably should know would place another in fear of bodily injury or death or threatening that an offense will be committed against the other person's property; causes the other person to be placed in fear of bodily injury or death or that an offense will be committed against the other person's property or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and would cause a reasonable person to be placed in fear of bodily injury or death, fear that an offense will be committed against the person's property, or feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended-"invades the substantial privacy interests of another in an essentially intolerable manner." Ex parte Barton, 2022 WL 1021061, at *7 (quoting Scott, 322 S.W.3d at 668-69, 670); see Tex. Penal Code Ann. § 42.072. As the Court of Criminal Appeals recognized in Ex parte Barton, "The State has an interest in vindicating the rights of the people which it serves and an interest in protecting the public welfare." 2022 WL 1021061, at *7; see also State v. Rhine, 297 S.W.3d 301, 306 (Tex. Crim. App. 2009) ("The legislature may enact laws that enhance the general welfare of the state[.]"). We hold that these interests are legitimate, and the stalking statute serves these interests. See Ex parte Barton, 2022 WL 1021061, at *7.
The stalking statute is also rationally related to these interests. See id. "[I]f the idea is to protect the people from having their privacy invaded in such a way, one of the best ways to do that is to punish those who violate that privacy interest and deter those who would." Id. "The means chosen by the Legislature further the interest." Id.
Therefore, the stalking statute is rationally related to a legitimate governmental interest. See id. We hold that the stalking statute is not facially unconstitutional and overrule Owen's sole issue on appeal.
Conclusion
We affirm the judgment of the trial court.