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Date: 03-08-2021
Case Style:
Ex Parte Lyla Ordonez v. The State of Texas
Case Number: 14-19-01005-CR
Judge: Tracy Christopher
Court: Fourteenth Court of Appeals
Plaintiff's Attorney: Patricia McLean
Kim K. Ogg
Eric Kugler
Defendant's Attorney:
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Description:
- Criminal defense attorney represented Lyla Ordonez with a arguing that the statute, section 42.07(a)(7) of the Texas Penal Code, which provides that a person is criminally responsible for harassment is unconstitutional because it is overbroad in violation of the First Amendment.
Appellant was charged with a misdemeanor under section 42.07(a)(7) of the
Texas Penal Code, which provides that a person is criminally responsible for
harassment if she sends repeated electronic communications in a manner reasonably
likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another, and if
she has the intent to harass, annoy, alarm, abuse, torment, or embarrass that other
person. After being so charged, appellant sought a pretrial writ of habeas corpus,
arguing that the charging statute is unconstitutional on its face. The trial court denied
habeas relief, and now appellant challenges that ruling here.2
Appellant argues that the statute is unconstitutional because it is overbroad in
violation of the First Amendment. This question of overbreadth has divided the
Texas courts of appeals.
Some courts have upheld the statute under the reasoning that it only prohibits
communications that are not protected by the First Amendment. See, e.g., Ex parte
McDonald, 606 S.W.3d 856, 860 (Tex. App.—Austin 2020, pet. filed) (noting that
a person who violates the statute has an intent to harm, not an intent to engage in the
legitimate communication of ideas, opinions, or information); State v. Grohn, —
S.W.3d —, 2020 WL 6749936, at *4 (Tex. App.—Beaumont 2020, pet. filed)
(same); Lebo v. State, 474 S.W.3d 402, 407–08 (Tex. App.—San Antonio 2015, pet.
ref’d) (same). These courts have largely justified their decisions as extensions of
Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010), which rejected a challenge
to the constitutionality of the similarly worded telephone-harassment statute.
Other courts, including this one, have determined that the statute is
unconstitutional on its face and that Scott is not actually controlling. See, e.g., State
v. Chen, — S.W.3d —, 2020 WL 7867285, at *5 (Tex. App.—Houston [14th Dist.]
2020, no pet. h.); Ex parte Barton, 586 S.W.3d 573, 585 (Tex. App.—Fort Worth
2019, pet. granted).
In our recent decision in Chen, we explained that Scott had been abrogated in
part by Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014). See Chen, 2020
WL 7867285, at *3–5. We also noted that Scott was distinguishable because its
holding was animated by unwanted telephone communications that invade the
privacy of the home. Id. at *4. We explained that electronic communications were
qualitatively different because they were statutorily defined to include a much
broader category of communications, such as writings on the Internet that an
individual must affirmatively seek out. Id. (citing Tex. Penal Code § 42.07(b)(1)).3
Due to these differences, we concluded that Scott should not be extended to the
context of electronic communications. Id. at *5. We further concluded that the
statute as written “has the potential to reach a vast array of communications,”
including legitimate criticism, which often has the intentional effect of being
annoying, embarrassing, or alarming. Id. at *6. We therefore held that the statute
was unconstitutionally overbroad because it prohibits or chills a substantial amount
of protected speech. Id. at *7.
The Texas Court of Criminal Appeals has not yet weighed in on this question
of overbreadth, but it is poised to settle the split in the courts of appeals with its
forthcoming decision in Ex parte Barton, No. PD-1123-19 (submitted Mar. 18,
2020). Until that higher court determines that the statute is facially constitutional or
Chen is otherwise set aside, we are obligated to follow this court’s precedent in
Chen. Pursuant to that binding authority, we therefore conclude that section
42.07(a)(7) of the Texas Penal Code is unconstitutional on its face.
Outcome: We reverse the trial court’s ruling denying habeas relief and remand the case
to the trial court with instructions to dismiss the charging instrument.
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