James Earl v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-23-00427-CR James Earl, Appellant v. The State of Texas, Appellee FROM THE COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY NO. C-1-CR-18-501959, THE HONORABLE DIMPLE MALHOTRA, JUDGE PRESIDING MEMORANDUM OPINION James Earl appeals the trial court’s deferral of adjudication of guilt and supervision order, arguing that Texas’s electronic harassment statute (a subsection of the harassment statute) is unconstitutionally overbroad because it punishes a substantial amount of protected speech in relation to its legitimate sweep. Earl acknowledges the Texas Court of Criminal Appeals upheld the subsection against First Amendment challenges in Ex parte Barton, 662 S.W.3d 876 (Tex. Crim. App. 2022), and Ex parte Sanders, 663 S.W.3d 197 (Tex. Crim. App. 2022), but argues those cases were wrongly decided for the reasons set out in Presiding Judge Keller’s dissents. Earl further argues that the holdings do not survive Counterman v. Colorado, 600 U.S. 66 (2023), or the Texas Legislature’s adoption of Texas Penal Code section 42.07(a)(8), see Act of May 12, 2021, 87th Leg., R.S., ch. 178, § 1, 2021 Tex. Gen. Laws 385, 386. We affirm.  BACKGROUND Because Earl makes a facial challenge to section 42.07(a)(7), the specific facts of the case are irrelevant. Ex parte Lo, 424 S.W.3d 10, 14, n.2 (Tex. Crim. App. 2013). We nevertheless set out the probable cause affidavit for context:1 12.19.18/0900, Victim, [A.S.], came to a scheduled interview with me, after reporting her ex-boyfriend, Mr. Earl was [s]talking her. During this interview, [s]he told me on 11.15.18, she was on the phone with Mr. Earl when she asked him to stop contacting her. Since then he has continued to contact her, and assaulted her on 12.11.18 when he came to her residence and refused to let her shut the door. During the interview, I had her email Mr. Earl, “I want you to cease all communication with me via phone, text messages, emails and any social media platform. Do not contact me anymore, [A.S.].” 12.19.18/12:21 PM, she received a text from him stating “This is why I was checked out for so long in our relationship, why I didn’t want to go deeper with you. I knew you would do this [A.S.], you’re trash.” She received another text from him at 17:35 PM, stating “You are a horrible human and deserve the way [your] body is falling apart. Rot in a hell you vile piece of shit.” Then at 17:47, she received another text stating “You’re a liar, a cheater, and hopefully soon to be a cripple. Fuck you, you terrible person.” Not only has Mr. Earl’s behavior alarmed [A.S.], but it’s also annoyed her and caused her to fear for her safety and life. *** This offense does involve Family Violence as the victim and suspect are related by: Dating Relationship. The information, tracking the applicable statute, alleged that Earl “on or about the 19th day of December, 2018, with the intent to harass, annoy, alarm, abuse, torment, and embarrass another, 1 See Ex parte Lowry, 693 S.W.3d 388, 391 (Tex. Crim. App. 2024) (doing same). 2 sent repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, and offend [A.S.].” Earl filed a combined pretrial application for habeas corpus and motion to quash challenging the statute as facially unconstitutional under the First Amendment. The State filed an answer and proposed findings and conclusions, asserting that Barton and Sanders controlled the outcome. The trial court adopted the State’s findings and conclusions and denied the combined application and motion. Earl thereafter pled no contest to electronic harassment in exchange for one year of deferred adjudication, reserving the right to appeal the constitutionality of the statute. ANALYSIS The Electronic Harassment Statute as Overbroad Earl argues that the electronic harassment statute punishes so much protected speech that it cannot be applied to anyone, including him. Applicable Law and Standard of Review The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” United States v. Hansen, 599 U.S. 762, 769 (2023). Generally, this means that the government cannot restrict expression because of its message, its ideas, its subject matter, or its content. Unite