Opinion
PD-0096-21 PD-0097-21
08-24-2022
THE STATE OF TEXAS v. JASPER ROBIN CHEN, Appellee
ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY
Keller, P.J., filed a dissenting opinion in which Keel and McClure, JJ., joined.
OPINION
PER CURIAM.
Appellee was charged with harassment via electronic communications. See Tex. Penal Code § 42.07(a)(7). He filed a pre-trial habeas writ application and motion to quash the charging instrument, arguing the electronic harassment statute is facially unconstitutional and also unconstitutional as applied to him under the First Amendment. The trial court ruled that the statute is facially unconstitutional and granted relief. The State appealed , and a majority of the Court of Appeals held the statute to be unconstitutionally overbroad. State v. Chen, 615 S.W.3d 376 (Tex. App. - Houston [14th] 2020, pet. filed).
In a unitary notice of appeal, the State appealed both from the trial court's order dismissing the information and from its order granting habeas corpus relief.
Ex parte Barton, __S.W.3d __, 2022 WL 1021061, *1 & n.1 (Tex. Crim. App. April 6, 2022) (2001 version); Ex parte Sanders, __S.W.3d__, 2022 WL 1021055, *1 & n.1 (Tex. Crim. App. April 6, 2022) (2013 version).
The State has filed a petition for discretionary review arguing that Appellee failed to meet his burden to show the statute is unconstitutionally overbroad and the majority erred in its analysis. We recently handed down opinions in Ex parte Barton v. State, No. PD-1123-19, 2022 Tex.Crim.App. LEXIS 235 (Tex. Crim. App. Apr. 6, 2022), and Ex parte Sanders v. State, No. PD-0469-19, 2022 Tex.Crim.App. LEXIS 236 (Tex. Crim. App. Apr. 6, 2022), in which we held the statute constitutional on its face. The reasoning in these opinions applies to this case.
We note that Appellee's case is governed by the 2017 version of the electronic harassment statute. Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec. 42.07, 1973 Tex. Gen. Laws 883, 956-57 (amended 2017).
See Barton, supra at *1, and Sanders, supra at *1.
Accordingly, we grant the State's petition for discretionary review, reverse the judgment of the Court of Appeals, and remand this case to the trial court for further proceedings not inconsistent with Ex parte Barton and Ex parte Sanders.
Keller, P.J., filed a dissenting opinion in which Keel and McClure, JJ., joined.
In Ex parte Barton and Ex parte Sanders, the Court addressed the constitutionality of the 2001 and 2013 versions, respectively, of the electronic-communications statute.1 In both cases, the Court decided that the statute at issue does not implicate the First Amendment because the conduct it prohibits is not speech.2 Now the Court concludes that the reasoning in those opinions applies to this case, involving the 2017 version of the statute, despite the fact that the 2017 statute adds new language regarding the meaning of "electronic communications" that makes the statute more obviously directed at speech.
Under the 2001 and 2013 versions of the statute, "electronic communications" was defined as:
[A] transfer of signs, signals, writing, images, sound, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system. The term includes:
(A) a communication initiated by electronic mail, instant message, network call, or facsimile machine; and
(B) a communication made to a pager.
Tex. Penal Code § 42.07(b)(1) (2001 & 2013).
In 2017, the legislature added to subsection (A) the italicized language below:
(A) a communication initiated by electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine.
Tex. Penal Code § 42.07(b)(1)(A) (2017).
In Barton and Sanders, I set forth my view that derogatory posts about someone on a social media account or an internet site was criminalized even under the language of the 2001 and 2013 versions of the statute. In concurring opinions in those cases, Judge Yeary disagreed, believing that the statute was limited to instances in which "harassing communications are directed and targeted specifically at an individual." In support of his assessment, he quoted the definition of "electronic communications" found in the versions of the statute at issue in those cases. But with its additions, the 2017 statute clearly applies beyond communications that are targeted and directed specifically at an individual. Now, it seems indisputable that annoying posts about an individual on social media, a message board, a blog, or the online comment section of a newspaper can be an offense. Nothing in the statutory language of the 2017 provision suggests that the social media account, message board, blog, or other internet site must belong to the person who reasonably finds the communications annoying.
Barton, 2022 WL 1021061, at *9 (Keller, P.J., dissenting); Sanders, 2022 WL 1021055, at *15 (Keller, P.J., dissenting) (adopting reasons articulated in Barton).
Barton, 2022 WL 1021061, at *8 (Yeary, J, concurring); Sanders, 2022 WL 1021055, at *14 (Yeary, J, concurring).
Barton, supra at *8 n.2; Sanders, supra at *14 n.2.
For instance, under the 2017 statute, if a person makes more than one derogatory comment about another person on Facebook, Twitter, or YouTube, that conduct can be prosecuted as a crime. That is true even if the derogatory posts or videos are on the commenter's own account. Similarly, repeated derogatory posts in the online comment section of the local newspaper could give rise to criminal liability. Criticisms of a politician on a blog or message board could also pave the way for a criminal prosecution.
To be clear, Barton and Sanders did not hold that the legislature could validly punish the sort of speech proscribed by the electronic-communications statute; it held that the statute did not proscribe speech at all. I found that idea problematic with respect to the earlier versions of the statute at issue in Barton and Sanders. With respect to the newer version, I find that idea to be simply untenable-and certainly not something that would support a summary remand. I respectfully dissent.