Petition for Writ of Certiorari — Slade Alan Moore, Petitioner v. Texas

Supreme Court briefNov 7, 2022

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No. 22-____

IN THE

Supreme Court of the United States

————

SLADE ALAN MOORE,

Petitioner,

STATE OF TEXAS,

Respondent.

————

On Petition for Writ of Certiorari to the

Court of Criminal Appeals of Texas

————

PETITION FOR WRIT OF CERTIORARI

————

MARK W. BENNETT

917 Franklin Street

Fourth Floor

Houston, Texas 77002

(713) 224-1747

mb@ivi3.com

LANE A. HAYGOOD

Counsel of Record

3800 E. 42nd St.

Suite 110

Odessa, Texas 79762

(432) 803-5800

lhaygood@galyen.com

Counsel for Petitioner

November 7, 2022

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

A Texas statute criminalizes sending repeated electronic communications with the intent and likely

result of “harassing, annoying, alarming, abusing, tormenting, embarrassing or offending” another. Because

the law would be violated by the repeated sending of

communications that contain no expressive content,

like a blank email, the Texas Court of Criminal Appeals

concluded that it “proscribes non-speech conduct” and

does not implicate the First Amendment, even though

the law would in most cases be violated by the repeated

sending of expressive communications. The court thus

rejected Petitioners’ facial overbreadth challenges to

the criminal statute. The questions presented are:

1. Is a law that criminalizes expressive speech

immunized from any First Amendment scrutiny if it

also criminalizes non-expressive conduct?

2. Is a law that punishes the repeated sending of

electronic communications with intent and likely result

to “harass, annoy, alarm, abuse, torment, embarrass,

or offend” another unconstitutionally overbroad?

(i)

PARTIES TO THE PROCEEDING

Petitioner Slade Alan Moore petitions from

judgments in three related cases issued by the Eighth

Court of Appeals in Texas, with the Court of Criminal

Appeals refusing discretionary review.

Sanders was the applicant for a writ of habeas

corpus in the County Court of Andrews County, Texas,

the appellant at the Eighth Court of Appeals of Texas,

and the Petitioner at the Texas Court of Criminal

Appeals. Respondent State of Texas opposed Mr.

Moore’s habeas application in the county court, was

the appellee at the Eighth Court of Appeals, and was

the respondent at the Court of Criminal Appeals.

RELATED PROCEEDINGS

Court of Criminal Appeals of Texas:

Ex Parte Barton, No. PD-1123-19 (Tex. Crim. App.

Apr. 6, 2022) (to be reported at --- S.W.3d ---; available

at 2022 WL 1021061);

Ex Parte Sanders, No. PD-0469-19 (Apr. 6, 2022)

(--- S.W.3d ---; 2022 WL 1021055).

Eighth Court of Appeals of Texas:

Ex Parte Moore, No. 08-20-00064-CR (Tex. App.

Feb. 4, 2022) (not designated for publication);

Ex Parte Moore, No. 08-20-00065-CR (Tex. App.

Feb. 4, 2022) (not designated for publication);

Ex Parte Moore, No. 08-20-00066-CR (Tex. App.

Feb. 4, 2022) (not designated for publication);

iii

Andrews County Court, Andrews County, Texas:

State v. Moore, No. 19-0135, 19-0237, and 19-0258,

(unpublished) (order denying defendant’s motion to

quash information).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............................

PARTIES TO THE PROCEEDING ....................

RELATED PROCEEDINGS ...............................

TABLE OF AUTHORITIES ................................

INTRODUCTION ................................................

OPINIONS AND ORDERS BELOW ..................

JURISDICTION ..................................................

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................

STATEMENT OF THE CASE ............................

The Trial Court Denies Petitioner’s Facial

Challenges To The Texas Electronic

Communications Harassment Law ..........

Intermediate Appellate Courts Disagree

On The Law’s Constitutionality ...............

The Court of Criminal Appeals Decided

Barton And Sanders Adverse To Moore

And Refused Discretionary Review..........

REASONS FOR GRANTING THE WRIT ..........

THE TEXAS COURT’S HOLDINGS

DEFY THIS COURT’S FIRST AMENDMENT PRECEDENTS IN MUTIPLE

RESPECTS................................................

A. The Texas Court Refused To Apply

Any First Amendment Analysis To A

Statute It Found To Penalize

“Expressive Speech” ............................

(v)

TABLE OF CONTENTS—Continued

Page

II.

B. The Texas Court’s Rationale For

Refusing To Apply Any First Amendment Scrutiny Specifically Contravenes

This Court’s Precedent ........................

1. That the law reaches some nonexpressive conduct does not exempt

it from any First Amendment

scrutiny ...........................................

2. That the law requires a wrongful

intent does not exempt it from any

First Amendment scrutiny ............

C. The Texas Court’s Refusal To Conduct

An Overbreadth Analysis Upholds A

Law That Cannot Survive An Overbreadth Analysis Under This Court’s

Precedent .............................................

LOWER COURTS ARE DEEPLY SPLIT

ON THE CONSTITUTIONALITY OF

LAWS CRIMINALIZING COMMUNICATIONS MADE WITH A PROSCRIBED INTENT ...................................

A. A Minority Of Courts Have Held That

Laws Criminalizing Electronic Or

Phone Communications Made With

Proscribed Intents Raise No First

Amendment Issue .................................

B. Most Courts Hold The Opposite, With

All But One Granting Relief Under

The Overbreadth Doctrine ..................

(vi)

TABLE OF CONTENTS—Continued

Page

III. THE ISSUE PRESENTED IS A MATTER

OF EXCEPTIONAL IMPORTANCE .......

CONCLUSION ....................................................

APPENDIX

APPENDIX A: OFFICIAL NOTICE, No.

08-20-00066-CR (No. 19-0258), Texas Court

of Criminal Appeals (June 22, 2022) .............

APPENDIX B: OPINION, No. 08-20-00064CR (TC# 19-0135), Texas Court of Criminal

Appeals (June 22, 2022) .................................

APPENDIX C: ORDER ON DEFENDANT'S

MOTION TO QUASH INFORMATION, Cause

Nos. 19-0135, 19-0237, 19-0258, County

Court of Andrews County, Texas (February

14, 2020) .........................................................

APPENDIX D: CAUSE #19-0258, INFORMATION - HARASSMENT, County Court of

Andrews County, Texas (2019) ......................

APPENDIX E: CAUSE #19-0258, COMPLAINT HARASSMENT, County Court of

Andrews County, Texas (July 16, 2019)........

APPENDIX F: CAUSE #19-0237, INFORMATION - HARASSMENT, County Court of

Andrews County, Texas (2019) ......................

10a

APPENDIX G: CAUSE #19-0237, COMPLAINT HARASSMENT, County Court of

Andrews County, Texas (July 2, 2019)..........

11a

(vii)

TABLE OF CONTENTS—Continued

Page

APPENDIX H: CAUSE #19-0135, INFORMATION - HARASSMENT, County Court of

Andrews County, Texas (2019) ......................

12a

APPENDIX I: CAUSE #19-0135, COMPLAINT HARASSMENT, County Court of

Andrews County, Texas (May 3, 2019)..........

13a

(viii)

TABLE OF AUTHORITIES

CASES

Page(s)

Arcara v. Cloud Books, Inc.,

478 U.S. 697 (1986) ...................................

Ashcroft v. ACLU,

542 U.S. 656 (2004) ................................... 11, 12

Barnes v. Glen Theatre, Inc.,

501 U.S. 560 (1991) ...................................

Bartnicki v. Vopper,

532 U.S. 514 (2001) ................................... 12, 13

Bolles v. People,

541 P.2d 80 (Colo. 1975) ...........................

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010) ...................................

City of Dallas v. Stanglin,

490 U.S. 19 (1989) .....................................

City of Houston v. Hill,

482 U.S. 451 (1987) ...................................

Clark v. Community for Creative Non-Violence,

468 U.S. 288 (1984) ................................... 14

Cohen v. California,

403 U.S. 15 (1971) ..................................... 18, 19

Commonwealth v. Hendrickson,

724 A.2d 315 (Pa. 1999) ............................ 25, 26

Dobbs v. Jackson Women’s Health Org.,

No. 19-1392 (June 24, 2022) .....................

Erznoznik v. City of Jacksonville,

422 U.S. 205 (1975) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Ex Parte Barton,

No. PD-1123-19, 2022 WL 1021061

(Tex. Crim. App. Apr. 6, 2022) ................passim

Ex parte Moore,

No. 08-20-00064-CR, 2022 WL

336776 (Tex. App. Feb. 4, 2022) ...............

Ex Parte Sanders,

No. PD-0469-19, 2022 WL

1021055 (Tex. Crim. App. 2022) ..............passim

Hill v. City of Houston,

789 F.2d 1103 (5th Cir. 1986),

aff’d, 482 U.S. 451 (1987) .........................

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) ......................................... 14, 15

Hustler Mag., Inc. v. Falwell,

485 U.S. 46 (1988) .....................................

Galloway v. State,

781 A.2d 851 (Md. 2001) ...........................

Giboney v. Empire Storage & Ice Co.,

336 U.S. 490 (1949) ...................................

Gormley v. Director, Connecticut State

Department of Probation,

632 F.2d 938 (2d Cir. 1980) ......................

Matter of Welfare of A.J.B.,

929 N.W.2d 840 (Minn. 2019).............. 26-27, 28

McCullen v. Coakley,

573 U.S. 464 (2014) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

McKillop v. State,

857 P.2d 358 (Alaska Ct. App. 1993) ....... 30-31

Miami Herald Pub. Co. v. Tornillo,

418 U.S. 241 (1974) ...................................

Moore v. Texas,

No. 22A219 (docketed Sept. 12, 2022) ......

Nev. Comm’n on Ethics v. Carrigan,

564 U.S. 117 (2011) ................................... 15, 16

Netchoice, L.L.C. v. Paxton,

49 F.4th 439 (5th Cir. 2022) .....................

N.Y. Times v. Sullivan,

376 U.S. 254 (1964) ...................................

Packingham v. North Carolina,

137 S. Ct. 1730 (2017) ............................... 12, 24

People v. Golb,

15 N.E.3d 805 (N.Y. 2014) ........................

People v. Klick,

362 N.E.2d 329 (Ill. 1977) .........................

People v. Moreno,

506 P.3d 849 (Colo. 2022) ......................... 28, 29

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) ................................... 18, 19

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ...................................

Reno v. ACLU,

521 U.S. 844 (1997) ............................. 11, 12, 24

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Rumsfeld v. Forum for Acad. & Inst. Rts., Inc.,

547 U.S. 47 (2006) ..................................... 15, 16

Saxe v. State College Area Sch. Dist.,

240 F.3d 200 (3d Cir. 2001) ......................

Scott v. State,

322 S.W.3d 662 (Tex. Crim. App.

2010) .........................................................passim

Schlagler v. Phillips,

985 F. Supp. 419 (S.D.N.Y. 1991).............

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ...................................

Snyder v. Phelps,

562 U.S. 443 (2011) ................................... 17, 34

State v. Brobst,

857 A.2d 1253 (N.H. 2004) .......................

State v. Calvert,

No. 15-0195, 2016 WL 3179968

(W. Va. June 3, 2016) ................................

State v. Camp,

295 S.E.2d 766 (N.C. Ct. App. 1982) ........

State v. Dugan,

303 P.3d 755 (Mont. 2013) ........................

State v. Dyson,

872 P.2d 1115 (Wash. Ct. App. 1994).......

State v. Moulton,

78 A.3d 55 (Conn. 2013)............................

State v. Stephens,

807 P.2d 241 (N.M. Ct. App. 1991)...........

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

State v. Thorne,

333 S.E.2d 817 (W. Va. 1985) ................... 24, 26

State v. Vaughn,

366 S.W.3d 513 (Mo. 2012) .......................

Texas v. Johnson,

491 U.S. 397 (1989) ................................... 18, 19

Thorney v. Bailey,

846 F.2d 241 (4th Cir. 1988) .....................

Thornhill v. Alabama,

310 U.S. 88 (1940) .....................................

Turner Broadcasting System,

Inc. v. F.C.C.,

512 U.S. 622 (1994) ...................................

United States v. Ackell,

907 F.3d 67 (1st Cir. 2018) .......................

United States v. Alvarez,

567 U.S. 709 (2012) ...................................

United States v. Fleury,

20 F.4th 1353 (11th Cir. 2021) .................

United States v. Osinger,

753 F.3d 939 (9th Cir. 2014) .....................

United States v. Petrovic,

701 F.3d 849 (8th Cir. 2012) .....................

United States v. Sryniawski,

No. 21-3487, 2022 WL 4005336

(8th Cir. Sept. 2, 2022) .............................

United States v. Stevens,

559 U.S. 460 (2010) ......................... 2, 20, 22, 33

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Waggy,

936 F.3d 1014 (9th Cir. 2019) ...................

United States v. Weiss,

No. 20-10283, 2021 WL 6116629

(9th Cir. Dec. 27, 2021) ............................. 25, 26

United States v. Yung,

37 F.4th 70 (3d Cir. 2022) ......................... 26, 30

Virginia v. Hicks,

539 U.S. 113 (2003) ............................. 15, 16, 21

Vives v. City of New York,

305 F. Supp. 2d 289 (S.D.N.Y.

2003), rev’d on other grounds,

405 F.3d 115 (2d Cir. 2005) ...................... 27-28

Vives v. City of New York,

405 F.3d 115 (2d Cir. 2005) ......................

Watts v. United States,

394 U.S. 705 (1969) ...................................

CONSTITUTION

U.S. Const. amend. I ...................................passim

U.S. Const. amend. XIV ...............................

STATUTES

18 U.S.C. § 2261A(2) ....................................

28 U.S.C. § 1257(a) ...........................................

47 U.S.C.A. § 223(a)(1)(C) ............................ 25, 26

Colo. Rev. Stat. § 18-9-111(1) .......................

TABLE OF AUTHORITIES—Continued

Page(s)

Minn. Stat. § 609.749(2)(6) .......................... 27, 28

Minn. Stat. § 609.795(1)(3) (2018) ..................

Mont. Code. Ann. § 45-8-13(1)(a)

(West 2021) ...............................................

N.Y. Penal Law § 240.30(1)(a) .....................

Tex. Penal Code Ann. § 42.07(a)(7)

(2021) ........................................................passim

Tex. Penal Code Ann. § 42.07(b)(1).............. 5, 17

OTHER AUTHORITIES

Luke 18:1-5 ...................................................

Webster’s Ninth New Collegiate Dictionary

(1988) .........................................................

INTRODUCTION

This case is one of several which deal with the

constitutionality of Tex. Penal Code Ann. § 42.07(a)(7),

otherwise known as the electronic harassment statute.

A 5-4 majority of the Texas Court of Criminal

Appeals held in two related cases, Ex parte Barton and

Ex parte Sanders, that an “electronic communication”

made with the “intent to engage in the legitimate communication of ideas” can nevertheless be considered

“non-communicative” and judicially declared “not

speech.” Sanders, 2022 WL 1021055 at *4. While those

cases were pending decision, the Eighth Court of

Appeals upheld the trial court’s denial of relief to

Mr. Moore, and Mr. Moore petitioned the Court of

Criminal Appeals for discretionary review. When

Barton and Sanders were decided, this case was

decided with them. As both Barton and Sanders have

been brought to this Court’s attention via a petition for

a writ of certiorari, so too does Mr. Moore make the

same presentation.

The Eighth Court of Appeals, in its opinion, noted

that their opinion “with additional discussion of the

issues would add nothing new to what is already

pending before the Texas Court of Criminal Appeals.”

App. 6a.

In the proceedings in the Court of Criminal Appeals,

over an incredulous dissent, the Barton/Sanders court

held that a Texas law criminalizing “electronic communications” intended and reasonably likely to “harass,

annoy, alarm, abuse, torment, or embarrass,” does not

implicate the protections of the First Amendment in

any way and thus is not susceptible to a facial

challenge for vagueness or overbreadth. Barton, 2022

WL 1021061 at *2-*4.

The court reached this conclusion because the law

could be violated by repeatedly sending emails, text

messages, and the like with no communicative

content. It thus considered the law a regulation of

conduct that facially presented no First Amendment

issue, even while conceding that it could typically be

applied to expressive communications. Id. at *6. This

holding directly conflicts with this Court’s precedents.

The Texas law upheld below does not punish speech

related to non-speech criminal conduct; speaking is the

conduct targeted by the electronic communications

harassment statute. Nor does the law apply to speech

without regard to its content; repeated speech is made

criminal, inter alia, when its content is alarming,

embarrassing, or offensive to the recipient. And the

law, as written, contains no exception for political

speech or speech on matters of public concern. Under

controlling precedent of this Court, it is impossible to

conclude that the Texas law presents no First

Amendment issue. See, e.g., United States v. Stevens,

559 U.S. 460 (2010); United States v. Alvarez, 567 U.S.

709 (2012).

Nor do this Court’s precedents allow such a law

targeting speech to be exempted from any facial

challenge for overbreadth and vagueness. In United

States v. Stevens, this Court declared that a law is

facially overbroad if “a substantial number of its

applications are unconstitutional, judged in relation to

the statute’s plainly legitimate sweep.” 559 U.S. 460,

473 (2010). The Texas court refused even to take up

the issue, instead expediently declaring the repeated

sending of an electronic communication not to involve

speech at all. To allow the ruling to stand will open a

Pandora’s box of unreviewable First Amendment

harms in the form of self-censorship and opportunities

for discriminatory enforcement against disfavored

speech.

Troublingly, the Texas Court of Criminal Appeals is

not alone in holding that a statue criminalizing harassment through communications does not implicate the

First Amendment. While most state courts of last

resort and federal circuits recognize that such harassment laws are necessarily subject to First Amendment

scrutiny for vagueness and overbreadth, a number of

courts have reached the same conclusion as the Texas

court here. But in so doing, courts have applied a range

of inconsistent theories and approaches. This issue

warrants review by this Court to clear up an existing

confusion in the lower courts over how to account for

First Amendment issues unavoidably imbedded in

laws criminalizing harassment by communication.

Today, most Americans use the Internet every day

to talk politics and religion, organize family chores,

and connect with friends. Like all speech, online speech

is sometimes annoying, embarrassing, alarming, or

otherwise unpleasant—and often intentionally so.

Threatening criminal penalties for repeated speech

that is unwelcomed by the recipient will inhibit robust

communication on our primary means of communicating. The issue presented is one of exceptional

significance, and the Court should grant certiorari for

this reason as well.

OPINIONS AND ORDERS BELOW

The Texas Eighth Court of Appeals opinion in

Ex parte Moore is available at No. 08-20-00064-CR,

2022 WL 336776 (Tex. App. Feb. 4, 2022). The Court

of Criminal Appeals June 22, 2022, denial of the

petition for discretionary review is unpublished. The

orders denying the writ of habeas corpus and motion

to quash the information on February 14, 2020, are

also unpublished.

JURISDICTION

The Texas Eighth Court of Appeals issued is opinion

on February 4, 2022. App. Doc 6a. The Texas Court of

Criminal Appeals denied discretionary review on June

22, 2022. On September 13, 2022, and October 5, 2022,

Justice Alito extended the time for filing Moore’s

petition for certiorari to and including November 7,

2022. See No. 22A219.

This Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendmentto the United States Constitution provides that “Congress shall make no law

respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government

for a redress of grievances.” U.S. Const. amend. I.

The Fourteenth Amendment to the U.S. Constitution provides in pertinent part: “No state shall make

or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty, or

property, without due process of law . . . .” U.S. Const.

amend. XIV.

Texas Penal Code § 42.07(a)(7) states in relevant

part:

(a) A person commits an offense if, with intent

to harass, annoy, alarm, abuse, torment, or

embarrass another, the person:

...

(7) sends repeated electronic communications

in a manner reasonably likely to harass,

annoy, alarm, abuse, torment, embarrass, or

offend another.

Tex. Penal Code Ann. § 42.07(a)(7) (2021).

STATEMENT OF THE CASE

A. The Trial Court Denies Petitioner’s Facial

Challenges To The Texas Electronic

Communications Harassment Law

Petitioner Slade Alan Moore was charged by information with violating Texas Penal Code § 42.07(a)(7)

in Cause Nos. 19-0135, 19-0237, and 19-0258 in the

County Court of Andrews County, Texas. This law

is violated if a person sends repeated “electronic

communications” with an “intent to harass, annoy,

alarm, abuse, torment, or embarrass another,” and

their communications have the intended effect, or

simply “offends.” Id. The law defines an “electronic

communication” broadly to include any transfer of

writing, images, sounds, data or “intelligence of any

nature” that is “transmitted in whole or in part by a

wire, radio, electromagnetic, photoelectronic, or photooptical system.” Id. § 42.07(b)(1). Expressly included

within this definition are any communications “by

electronic mail, instant message, network call, or

facsimile machine,” or “made to a pager.” Id.

The three charges are related. In each of them,

Petitioner is alleged to have sent electronic communications to one Kimberly McCurdy in a manner

reasonably likely to and intended to harass, alarm,

annoy, abuse, torment, embarrass, or offend McCurdy.

App. 8a, 9a, 10a, 11a, 12a, and 13a.

Petitioner moved to quash the information and for a

pretrial writ of habeas corpus in each case, which was

denied. App. 7a.

B. Intermediate Appellate Courts Disagree

On The Law’s Constitutionality

Moore appealed the denials of habeas corpus to the

Texas Courts of Appeals for the Eighth District.

Because Barton and Sanders were then pending at the

Texas Court of Criminal Appeals, and their disposition

would control Moore’s case, the Eighth Court of

Appeals affirmed the trial court’s decisions. App. 6a.

C. The Court of Criminal Appeals Decided

Barton And Sanders Adverse To Moore

And Refused Discretionary Review

The Texas Court of Criminal Appeals, by a vote of 5

to 4, reversed in Barton and affirmed in Sanders, on

the ground that the electronic communications harassment statute does not implicate the First Amendment

and is thus not susceptible to a facial First Amendment challenge.

The five-judge majority based its ruling on the

holding in Scott v. State that the same “harassing

conduct” proscribed by the telephone harassment law

“is not speech.” Sanders, 2022 WL 1021055 at *4-*5.1

The court reasoned that “[i]t is possible to find some

kernel of expression in almost every activity a person

undertakes—for example, walking down the street or

meeting one’s friends at the shopping mall—but such

a kernel is not sufficient to bring the activity within

The court described Scott’s passage concerning communicative conduct causing an intolerable invasion of privacy, on which

the Seventh District relied, as “an alternative theory.” Sanders,

2022 WL 1021055 at *7.

the protection of the First Amendment.” Id. at *8

(quoting City of Dallas v. Stanglin, 490 U.S. 19, 25

(1989)). The court found the electronic-harassment

statute at issue here “the same [as the telephoneharassment statute at issue in Scott] for First

Amendment purposes.” Id.

The court acknowledged that a law regulating “nonprotected speech nevertheless still implicates the First

Amendment,” but found this principle inapplicable

because the conduct implicated by the harassment laws

“is noncommunicative.” Sanders, 2022 WL 1021055 at

*6. It thus declined to exercise any First Amendment

scrutiny because § 42.07(a)(7) addresses “non-speech

conduct that does not implicate the First Amendment.” Id. at *12.

The court also recognized that § 42.07(a)(7) on its

face applied to “traditional categories of communication” such as “a writing, an image, and a sound,”

Sanders, 2022 WL 1021055 at *13, but found this

irrelevant. According to the court, laws like § 42.07(a)(7)

do not implicate the First Amendment even when one

has an “intent to engage in the legitimate communication of ideas,” if there is also a proscribed intent, for

example, an intent to “annoy.” Id. A communicative

intent “does not convert non-expressive conduct into

expressive conduct.” Id. The court noted that one could

also violate the statute without expressing anything,

“by the repeated sending of communications containing no speech at all,” or sending “computer code . . .

entirely indecipherable and meaningless to humans.”

Id. That such plainly non-expressive conduct violates

§ 42.07(a)(7), reinforced the court’s conclusion that the

law does not implicate the First Amendment.

Four judges dissented in Barton.2 Writing for herself

and Judge Keel, Presiding Judge Keller disputed the

majority’s holding that the statute does not regulate

speech. In her view, “[t]he term ‘electronic communications’ alone suggests that the regulated conduct is

speech, but the statutory definition of the term makes

it clear that the regulated conduct is indeed speech.”

Barton, 2022 WL 1021061 at *9 (Keller, P.J., dissenting).

Presiding Judge Keller recognized that the First

Amendment does not protect every act that has a

kernel of expressive activity, but disagreed that that

principle applies to § 42.07(a)(7). This law is “concerned with communications” in general, and the

“inherently communicative aspect of electronic communications” in particular. Id. at *10.

Presiding Judge Keller also took issue with the

majority’s analysis regarding the possibility of violating the statute by sending “data [that] could be

meaningless.” Id. at *10. In her view, these possibilities do not negate the First Amendment entirely, but

instead inform whether the law “reaches a substantial

amount of First Amendment conduct in relation to its

legitimate sweep” so as to render it overbroad. Id. at

*12.3

In that vein, Presiding Judge Keller observed that

the statute “encompasses a truly enormous amount of

speech.” Barton, 2022 WL 1021061 at *11 (Keller, P.J.,

Judges Slaughter and McClure dissented without opinion.

While not endorsing Scott—from which she dissented—

Presiding Judge Keller argued that the electronic harassment

statute goes further than the statute Scott addresses. The “usual

case” of telephonic harassment might be noncommunicative, but

the same cannot be said for electronic communications. Barton,

2022 WL 1021061 at *11-12 (Keller, P.J., dissenting) (quoting

Scott, 322 S.W.3d at 669).

dissenting). This is so despite the statute’s intent requirement. After all, alarming, annoying, or embarrassing

someone “could be the point of the communication.”

Barton, 2022 WL 1021061 at *12. She gave the

following examples:

•

A citizen could intend to “alarm” others by

drawing attention to a devastating judicial

decision. Presiding Judge Keller noted that her

own dissenting opinion could be a crime. Id. at

*11.

•

As in the Bible’s parable of the persistent

widow, a citizen could repeatedly petition an

unjust judge to “annoy” them into granting

relief. Id. at *11 (citing Luke 18:1-5).

•

A journalist could intend to “embarrass” a

politician by repeatedly exposing their indiscretions, as in Andrew Breitbart’s coverage of

Anthony Weiner. Id. at *11.

Having found that § 42.07(a)(7) implicates the First

Amendment, Presiding Judge Keller would have conducted the overbreadth analysis the majority declined

to perform. In her view, the statute “punishes a substantial amount of protected speech in relation to its

legitimate sweep.”4 Barton, 2022 WL 1021061 at *12

(Keller, P.J., dissenting). So she would have held it

unconstitutional.

No court has yet addressed what the “plainly-legitimate

sweep” of a statute which restricts speech is. Logically, the

answer must be only the unprotected speech restricted by the

statute; but Texas courts have interpreted it more in the vein of

speech the Legislature intended to prohibit that is also deleterious or harmful. See Barton, 2022 WL 1021061 at *7-8.

Mr. Moore did not file for rehearing from the denial

of discretionary review in his case. Barton and

Sanders are now pending before this Court.

REASONS FOR GRANTING THE WRIT

I. THE TEXAS COURT’S HOLDINGS DEFY

THIS COURT’S FIRST AMENDMENT

PRECEDENTS IN MUTIPLE RESPECTS

This case, as per the ruling of the Texas Eighth

Court of Appeals, was decided in line with the Texas

Court of Criminal Appeals’ decisions in Barton and

Sanders. App. 5a, 6a. In Barton and Sanders, the

Texas Court of Criminal Appeals held that the First

Amendment is not implicated by a law imposing

criminal sanctions for the repeated sending of electronic communications—emails, text messages, tweets—

with (a) an intent “to harass, annoy, alarm, abuse,

torment, or embarrass” and (b) in a manner “reasonably likely” to have that effect, or otherwise simply to

“offend” the recipient. Tex. Penal Code Ann. § 42.07(a)(7).

Because the law could be applied to non-expressive

communications, such as repeatedly sending a blank

email, the court held that the law on its face presented

no First Amendment issue. And this is so, the court

said, even if an electronic communication is also sent

with an intent to convey an idea, express an opinion,

or engage in political confrontation. The repeated

sending of such a message was declared to be “noncommunicative conduct,” so that criminalizing it raised

no constitutional concern. This holding, and the court’s

refusal to entertain a facial overbreadth challenge,

fundamentally contradict this Court’s precedent in

multiple respects.

A. The Texas Court Refused To Apply Any

First Amendment Analysis To A Statute

It Found To Penalize “Expressive

Speech”

The Texas court concluded that one can violate

§ 42.07(a)(7) “by the repeated sending of communications containing expressive speech,” but nonetheless

held that the law “does not implicate the First

Amendment.” Barton, 2022 WL 1021061 at *7. The

notion that the First Amendment has no bearing on a

statute that criminalizes “expressive speech” broadly

ignores this Court’s First Amendment jurisprudence.

The Supreme Court Reports are replete with cases

applying First Amendment scrutiny to statutes, like

the Texas law at issue, that facially ban speech—

including speech made by electronic communication.

In Reno v. ACLU, the Court applied the First

Amendment to a statute criminalizing the use of an

“interactive computer service” to display a “patently

offensive” “communication.” 521 U.S. 844, 860 (1997).

It held that the statute “abridges ‘the freedom of

speech’ protected by the First Amendment” Id. at 849

(quoting U.S. Const. Amend. 1). In Ashcroft v. ACLU,

the Court again considered a law prohibiting the

posting of materials “harmful to minors,” defined as

“any communication” sharing one of several properties, such as being designed to “pander to . . . the

prurient interest.” 542 U.S. 656, 661 (2004). The Court

held this law, too, to be an invalid “content-based

speech restriction.” Id. at 665. More recently, this

Court subjected to First Amendment scrutiny a law

prohibiting sex offenders from using social media.

The Court held this law unconstitutional because it

prevented citizens from “speaking and listening in the

modern public square.” Packingham v. North Carolina,

137 S. Ct. 1730, 1737 (2017).

In each case, reasonable minds differed on the

answer to the First Amendment question presented.

But all agreed there was a question to be asked. See

Reno, 521 U.S. at 892 (O’Connor, J., concurring in the

judgment in part and dissenting in part) (concluding

that the Communications Decency Act should be struck

down in part because its “forced silence impinges in

the First Amendment rights of adults to make and

obtain [prohibited] speech”); Ashcroft, 542 U.S. at 676

(Scalia, J., dissenting) (objecting that “strict scrutiny”

was the wrong standard of review); id. at 676 (Breyer,

J., dissenting) (subjecting statute to “the most exacting scrutiny” but finding that it met that standard);

Packingham, 137 S. Ct. at 1739 (Alito, J., concurring

in the judgment) (concluding that “the law in question

cannot satisfy the standard applicable to a contentneutral regulation of the place where speech may

occur”). The Texas court flouted these precedents by

refusing even to apply First Amendment analysis to a

law it acknowledged to impose criminal penalties on

“expressive speech.” Barton, 2022 WL 1021061 at *6;

Sanders, 2022 WL 1021055 at *8.

Even while admitting that the law reaches “expressive speech,” the Texas court refused to engage in any

facial First Amendment analysis, instead focusing on

the law’s prohibition of the repeated “sending” of those

“communication[s],” which it declared to be nonexpressive “conduct.” Barton, 2022 WL 1021061 at *6*7. This flies in the face of Reno and Ashcroft, in which

this Court found electronic “communication[s]” sent on

the Internet are “speech.” Reno, 521 U.S. at 849;

Ashcroft, 542 U.S. at 665. Its approach also conflicts

with Bartnicki v. Vopper, which held that a statute

criminalizing the “disclos[ure]” of an intercepted

“electronic communication” is a “regulation of pure

speech.” 532 U.S. 514, 520 n.3, 526 (2001).

The Texas court identifies no alchemy by which

speech is transformed into non-expressive conduct

simply by its repetition. Its conclusion that the statute

on its face presents no First Amendment question

simply refuses to follow this Court’s repeated holdings

on speech generally and electronic communications.

B. The Texas Court’s Rationale For Refusing To Apply Any First Amendment

Scrutiny Specifically Contravenes This

Court’s Precedent

The Texas Court of Criminal Appeals relied on two

aspects of the electronic-communications harassment

law to support its finding that the law on its face

presents no First Amendment issue. Both rationales

directly contradict this Court’s precedent.

1. That the law reaches some nonexpressive conduct does not exempt

it from any First Amendment scrutiny.

The Texas court concluded that § 42.07(a)(7) did not

implicate the First Amendment even though it penalizes “expressive speech,” because it is not specifically

necessary to communicate an idea to violate the law.

The court reasoned that because one could, for

example, “send[] several emails containing only the

letter ‘B’ . . . or e-mails containing nothing,” Sanders,

2022 WL 1021055 at *13, the statute prohibits conduct

rather than speech, and the First Amendment has

no application. This Court’s precedents reject this

rationale for avoiding First Amendment scrutiny.

In City of Houston v. Hill this Court held that laws

facially proscribing speech implicate the First Amendment even if they also reach some non-expressive

conduct. In Hill, an ordinance made it unlawful to “in

any manner oppose, molest, abuse or interrupt any

policeman in the execution of his duty.” 482 U.S. 451,

455 (1987). The Court flatly rejected Houston’s argument that “the ordinance does not inhibit the

exposition of ideas,” and held that it “deals not with

core criminal conduct, but with speech.” Id. at 459,

460. Even though people could be—and were—

convicted for the non-expressive conduct of disobeying

an officer’s order to leave the scene, this Court found

the law facially overbroad under the First Amendment. See id. at 467. See also Hill v. City of Houston,

789 F.2d 1103, 1113 (5th Cir. 1986) (en banc) (collecting examples of convictions under the ordinance),

aff’d, 482 U.S. 451 (1987).

Hill is not the only ruling by this Court flouted by

the holding of the Texas Court of Criminal Appeals.

This Court has held repeatedly that laws facially

regulating conduct implicate the First Amendment

when they can also apply to expression. See, e.g., Clark

v. Community for Creative Non-Violence, 468 U.S. 288

(1984); Barnes v. Glen Theatre, Inc., 501 U.S. 560

(1991). This principle applies a fortiori to a statute

that bans speech on its face, as the Texas law here

does. And even if the Texas law were properly viewed

as facially proscribing conduct, the Texas court’s acknowledgment that it also applies to “expressive speech”

necessarily compels a First Amendment analysis.

In Holder v. Humanitarian Law Project, for example,

organizations and individuals seeking to provide humanitarian support to two groups identified as terrorist

organizations brought a facial overbreadth and vagueness

challenge to portions of the USA Patriot Act proscribing “material support” for terrorists. 561 U.S. 1, 7-8

(2010). Though the Court concluded that material

support “most often does not take the form of speech

at all,” it still subjected the statute to First Amendment scrutiny. Id. at 26, 28.

Likewise, in McCullen v. Coakley, the Court invalidated on First Amendment grounds a statute imposing a

35-foot buffer zone outside abortion facilities. McCullen

v. Coakley, 573 U.S. 464, 497 (2014). Even though one

could imagine non-expressive violations less farfetched

than repeatedly sending emails with only the letter

“B”—sitting on a bench and minding one’s own business, say—these hypothetical possibilities did not

obviate First Amendment analysis.5

The Texas court offered no coherent explanation for

its departure from this Court’s precedent. It did cite

cases indicating that laws regulating conduct with no

significant expressive component do not implicate the

First Amendment. See Sanders, 2022 WL 1021055 at

*8, citing Arcara v. Cloud Books, Inc., 478 U.S. 697,

706-07 (1986); Virginia v. Hicks, 539 U.S. 113, 123

(2003); Rumsfeld v. Forum for Acad. & Inst. Rts., Inc.,

547 U.S. 47, 66 (2006); and Nev. Comm’n on Ethics v.

Carrigan, 564 U.S. 117, 119, 121 (2011). But in three

of those cases, the challenged statute prohibited

only non-expressive conduct—unlike the Texas law,

which is targeted specifically at “communications.”

See Arcara, 478 at 705 (holding that the proscribed

activity, prostitution and its solicitation, “manifests

The statute contained certain exceptions, including for using

the sidewalk to get to another area. See McCullen, 573 U.S. at

472. Sitting on a bench and minding one’s own business would

violate the statute if one came and left from the same direction.

absolutely no element of protected expression”);

Rumsfeld, 547 U.S. at 65-66 (holding that the regulated acts, refusing to allow military recruiters onto a

law school campus, are not speech, and that they are

“conduct” that “is not inherently expressive”); Carrigan,

564 U.S. at 126 (declining to apply the First Amendment to a recusal statute because “the act of voting

symbolizes nothing”). In the fourth case, the Court did

not dispute that the statute implicated the First

Amendment. See Hicks, 539 U.S. at 124 (reversing

lower court’s finding of substantial overbreadth but

noting that applications of the challenged policy “that

violate the First Amendment can still be remedied

through as-applied litigation”).

The Texas court also sought support in its earlier

decision upholding a law criminalizing the act of

repeatedly causing a person’s telephone to ring or

repeatedly making anonymous telephone calls with

the same intent as proscribed in the electronic communications law. In that case, the conduct regulated

was held to be “essentially non-communicative” and

thus “not speech at all,” Sanders, 2022 WL 1021055 at

*5 (citing Scott v. State, 322 S.W.3d 662 (Tex. Crim.

App. 2010)). In addressing the telephone harassment

statute, the Texas court deemed the “usual case” of a

statutory violation to be where the person “will not

have an intent to engage in the legitimate communication of ideas, opinions, or information.” Scott, 322

S.W.3d at 670. It reasoned that the sending of repeated

emails or text messages is the analogue of repeated

telephone hang-ups, and found the electronic communications statute similarly to proscribe conduct, not

speech. Id. at *10-*11.

But whatever the merits of Scott’s analysis of the

telephone law,6 the usual case addressed by the electronic communications law is not an “email containing

nothing,” but one containing a communication. Tex.

Penal Code Ann. § 42.07(b)(1).7 And unlike repeated

telephone hang ups and anonymous calls—whose harassing nature depends on factors like how frequently

the phone rings, where, and at what time—whether an

email, text message or tweet is reasonably likely to

harass, alarm, embarrass, etc. will generally depend

on its content: its effect on the recipient is “because of”

the “message expressed.” Reed v. Town of Gilbert, 576

U.S. 155, 163 (2015). The Texas rulings thus contradict this Court’s repeated holdings that regulations

dependent upon the content of a communication necessarily trigger First Amendment scrutiny. See, e.g., id.;

Sorrell v. IMS Health Inc., 564 U.S. 552, 565 (2011);

Snyder v. Phelps, 562 U.S. 443, 458 (2011).

2. That the law requires a wrongful

intent does not exempt it from any

First Amendment scrutiny.

The Texas court also reasoned that the law’s

requirement of an intent to harass, annoy, alarm,

abuse, torment or embarrass, removed it from First

Amendment scrutiny because the law punishes only

those with no “intent to engage in the legitimate

As Presiding Judge Keller noted in her Barton and Scott

dissents, the statute is not limited to the “usual case,” and those

other cases may well involve speech. See Barton, 2022 WL

1021061 at *11-*12 (Keller, P.J., dissenting); Scott, 322 S.W.3d at

676 (Keller, P.J., dissenting).

The law’s definition of “electronic communications” as

“includ[ing] a communication initiated through the use of

electronic mail,” texts, and social media posts, further bolsters

this conclusion. Id. (emphasis added).

communication of ideas, opinions, or information.”

Barton, 2022 WL 1021061 at *5 (quoting Scott at 670).

This rationale, too, conflicts with this Court’s holdings,

specifically the repeated instruction that laws targeting speech implicate the First Amendment even when

that speech is motivated by a wrongful intent.

In Cohen v. California, the Court considered a

California statute prohibiting “maliciously and willfully disturb(ing) the peace or quiet of any neighborhood or person . . . by . . . offensive conduct.” 403 U.S.

15, 16 (1971). Despite the willfulness requirement, the

Court found the statute unconstitutional as applied to

the defendant, who worse a jacket saying “Fuck the

draft” in a municipal courtroom. Id. at 26.

In R.A.V. v. City of St. Paul, this Court assessed a

law banning cross-burning “which one knows or has

reasonable grounds to know arouses anger, alarm or

resentment”—construed as fighting words—“on the

basis of race, color, creed, religion or gender.” 505 U.S.

377 (1992). Even though fighting words are constitutionally proscribable, this Court found the law facially

unconstitutional because it made the prohibited

speech a “vehicle[] for content discrimination unrelated

to” the reason the speech was proscribed, which

constituted impermissible “content” and “viewpoint

discrimination.” Id. at 383-34, 391.

And in Texas v. Johnson, a defendant was convicted

of “intentionally or knowingly” desecrating a flag by

burning it. 491 U.S. 397, 400 n.1 (1989). The Court

reasoned that the conviction would implicate the First

Amendment if the defendant had “[a]n intent to

convey a particularized message was present, and [if]

the likelihood was great that the message would be

understood by those who viewed it.” Id. at 404. It found

such intent and likelihood present and reversed the

conviction. Id. at 420.

Just that intent and likelihood will often inhere in

violations of § 42.07(a)(7) as written. The Texas court

recognized that the law punishes one who sends a

message with a wrongful intent even if also intending

“to engage in the legitimate communication of ideas,

opinions, information or grievances,” Barton, 2022 WL

1021061 at *5, including when the communication is

easily understood as “expressive speech,” Sanders,

2022 WL 1021055 at *13. Still, the Texas court concluded that “even accepting that a person who

violates” the law “may harbor, alongside an intent

to harass, an additional intent to engage in the

legitimate communication of ideas, that fact does not

convert non-expressive conduct into expressive conduct.”

Barton, 2022 WL 1021061 at *6. That rationale is

fundamentally inconsistent with Cohen, R.A.V., and

Johnson, and gets the analysis exactly backwards.

All these cases hold that expression implicates the

First Amendment whether or not accompanied by a

wrongful intent.

Simply put, “[t]here is no categorical ‘harassment

exception’ to the First Amendment’s free speech clause.”

Saxe v. State College Area Sch. Dist., 240 F.3d 200, 204

(3d Cir. 2001) (Alito, J.). The holding and rationale

of the Texas rulings fundamentally contradict this

Court’s precedent.

C. The Texas Court’s Refusal To Conduct

An Overbreadth Analysis Upholds A

Law That Cannot Survive An Overbreadth Analysis Under This Court’s

Precedent

In upholding the law, the Texas rulings simply

ignore this Court’s First Amendment overbreadth

jurisprudence, which renders improper the law’s broad

criminalization of repeated “electronic communication” that induce a multiplicity of reactions and

emotions. See, e.g., United States v. Stevens, 559 U.S.

at 473 (holding that a law is overbroad if “a substantial

number of its applications are unconstitutional, judged

in relation to the statute’s plainly legitimate sweep”).

In Stevens, the Court held overbroad a statute

prohibiting depictions of animal cruelty—many of

which would “alarm,” “torment,” or “offend” in violation of the Texas law—absent a serious redeeming

value. Id. at 482. The Texas law governing electronic

communications is broader in that it expressly lacks

any exception for speech with redeeming social value

or the “legitimate communication of ideas.” Barton,

2022 WL 1021061 at *5-*6. The holding directly

conflicts with this Court’s overbreadth precedents.

As the dissenting judges recognized below, the

overbreadth of the law is obvious and staggering.

“Suppose,” they wrote,

a citizen, unhappy with an opinion from this

Court, sent repeated emails to a group of

like-minded citizens, saying “Texas is in

trouble” and “This is arguably the most

devastating ruling I have ever received from

a court” and “It’s time to get serious and get

on the phone, write letters, etc to EVERYONE

YOU KNOW to make them aware of what's

happening. Name names on this court! If this

stands we lose Texas. It's do or die this time.”

Has that citizen committed a crime? Under

the Court’s decision today, the answer is “Yes.”

Barton, 2022 WL 1021061 at *9 (Keller, P.J., and Keel,

J., dissenting).

Political campaigns repeatedly email potential voters

using language expressly intended and likely to

“alarm” them. Children text their parents over and

over to “annoy” them into responding. Citizens routinely tweet at celebrities and political figures, hoping

to “embarrass” them. These communications are

unquestionably constitutionally protected, and yet all

could be subject to prosecution under the Texas law.

The law imposes a chill on a large swath of protected

electronic speech that is far from imaginary when all

that stands between a speaker and criminal prosecution is the whims of a prosecutor. Virginia v. Hicks,

539 U.S. at 119 (mere “threat of enforcement of an

overbroad law may deter or ‘chill’ constitutionally

protected speech”).

These problems are especially pronounced given the

breadth of the statute’s intent requirement. There is

no limiting construction that the Texas Court of

Criminal Appeals might have chosen as it would add

an element that the Legislature did not include.

Instead, the court held that a person with such an

intent can be punished under the law if they also have

a forbidden intent. By that reading, it is a crime in

Texas for a priest to intentionally “alarm” his flock via

repeated electronic newsletters, emails, Facebook

posts, tweets, Instagram Reels, TikTok videos, or the

like that sinning could damn them to hell, even if his

main goal is to save their souls.

In contrast to these everyday examples of forbidden

speech protected by the First Amendment, the Texas

court majority offered a smattering of far-fetched

hypotheticals where the law could conceivably apply

to what it viewed as unprotected conduct including

blank or nonsense communications. See Sanders, 2022

WL 1021055 at *13;

The unconstitutional applications dwarf the arguably

permissible ones. The statute’s overbreadth is “substantial . . . judged in relation to its plainly legitimate

sweep.” Stevens, 559 U.S. at 460.

Although the Court of Criminal Appeals did not

directly address the overbreadth challenge, that challenge is still ripe for this Court’s review. There is no

reason to remand to state court to potentially limit the

law because “the possibility of a limiting construction

appears remote.” Erznoznik v. City of Jacksonville,

422 U.S. 205, 216 (1975). Texas’s highest criminal

court has already definitively construed the statute,

and has done so broadly. In Scott, the court construed

the intent requirement the telephonic harassment law

shares with § 42.07(a)(7):

“Harass” means “to annoy persistently.” “Annoy”

means to “wear on the nerves by persistent

petty unpleasantness.” “Alarm” means “to

strike with fear.” “Abuse” means “to attack

with words.” “Torment” means “to cause

severe distress of the mind.” “Embarrass”

means “to cause to experience a state of selfconscious distress.” “Offend” means “to cause

dislike, anger, or vexation.”

Scott, 322 S.W.3d at 669 n.13 (quoting Webster’s

Ninth New Collegiate Dictionary 47, 68, 88, 405, 552,

819, & 1245 (1988)). With a definitive but broad state

court construction on a facial challenge, this Court is

perfectly placed to address the statute’s overbreadth.

In short, the decisions in Barton and Sanders,

implicitly stated to be the basis of the decision of the

Texas Eighth Court of Appeals in upholding the

decision of the trial court and the Texas Court of

Criminal Appeals’s rationale for refusing discretionary review in this case, directly contradict this Court’s

precedents in multiple ways. The Court should grant

certiorari.

II. LOWER COURTS ARE DEEPLY SPLIT ON

THE CONSTITUTIONALITY OF LAWS

CRIMINALIZING

COMMUNICATIONS

MADE WITH A PROSCRIBED INTENT

Lower courts are split on two critical issues pertaining to laws criminalizing telephonic and electronic

communications made with certain proscribed intents,

such as an intent to harass, alarm, embarrass. First,

some courts disagree that these laws implicate the

First Amendment at all. Second, even when a First

Amendment analysis is applied, courts widely differ

on the proper analysis and whether the relevant law

is constitutional.

This Court has recognized that it is “intolerable

to leave unanswered” and in “uneasy and unsettled

constitutional posture,” questions concerning First

Amendment protections. Miami Herald Pub. Co. v.

Tornillo, 418 U.S. 241, 247 n.6 (1974). Yet the

conflicting decisions of state courts of last resort and

the federal circuits concerning harassment laws

targeting speech do just that. The Court should step in

to right the ship before another court follows down the

erroneous path followed here by the Texas court and

endangers free expression in “the ‘vast democratic

forums of the Internet.’” Packingham, 137 S. Ct. at

1735 (quoting Reno, 521 U.S. at 868).

A. A Minority Of Courts Have Held That

Laws Criminalizing Electronic Or Phone

Communications Made With Proscribed

Intents Raise No First Amendment Issue

The Texas Court of Criminal Appeals joined a

minority of courts in concluding that laws targeting

electronic or telephone communications made with a

proscribed intent are exempt from First Amendment

scrutiny because they regulate conduct and not

speech. Many of the courts found the laws’ intent

requirements central to that rationale.

For instance, in Gormley v. Director, Connecticut

State Department of Probation, the Second Circuit

construed a law criminalizing the “mak[ing of] a telephone call” to another person with “intent to harass,

annoy, or alarm” as targeting conduct rather than

speech, reasoning that the law regulated the making

of the call itself. 632 F.2d 938, 941–42 (2d Cir. 1980).

Similarly, in Thorney v. Bailey, the Fourth Circuit

concluded that a West Virginia statute barring the

“mak[ing of] repeated telephone calls, during which

conversation ensues, with intent to harass” merely

“prohibits conduct and not protected speech.” 846 F.2d

241, 243 (4th Cir. 1988). In so doing, the court followed

the West Virginia Supreme Court’s analysis of the

same statute. See State v. Thorne, 333 S.E.2d 817,

819–20 (W. Va. 1985) (upholding the statute because

“harassment is not . . . protected speech”); accord

State v. Calvert, No. 15-0195, 2016 WL 3179968, at *4

(W. Va. June 3, 2016).

The Ninth Circuit has twice concluded that electronic and telephone harassment statutes do not

implicate the First Amendment. In United States v.

Osinger, the court upheld a prior version of the federal

cyberstalking statute as constitutional, reasoning that

the law targeted “a course of conduct that causes

substantial emotional distress” rather than speech.

753 F.3d 939, 944 (9th Cir. 2014). The court further

reasoned that “[b]ecause the statute requires both

malicious intent on the part of the defendant and

substantial harm to the victim, it is difficult to imagine

what constitutionally-protected speech would fall under

these statutory prohibitions.” Id. (quoting United States

v. Petrovic, 701 F.3d 849 at 856 (8th Cir. 2012)). And

in United States v. Waggy, the Ninth Circuit reached

an analogous holding in concluding that a Washington

telephonic harassment statute “regulates nonexpressive

conduct and does not implicate First Amendment concerns.” 936 F.3d 1014, 1019 (9th Cir. 2019) (citing State

v. Dyson, 872 P.2d 1115, 1119 (Wash. Ct. App. 1994)).8

Some state courts of last resort have adopted much

the same approach. In Commonwealth v. Hendrickson,

the Pennsylvania Supreme Court concluded that

Pennsylvania’s telephone harassment statute, which

prohibited telephone calls made “with intent to harass

another” containing “any lewd, lascivious or indecent

words or language,” “does not punish constitutionally

Even still, the Ninth Circuit recently came to the opposite

conclusion when considering the federal telecommunications

harassment statute. In an unpublished opinion, the court stated

that 47 U.S.C.A. § 223(a)(1)(C), which prohibits anonymously

“utiliz[ing] a telecommunications device, whether or not conversation or communication ensues, . . . with intent to abuse,

threaten, or harass any specific person. . .criminalizes speech,”

and thus “must be interpreted with the commands of the First

Amendment clearly in mind.” United States v. Weiss, No. 2010283, 2021 WL 6116629, at *2 (9th Cir. Dec. 27, 2021) (quoting

Watts v. United States, 394 U.S. 705, 707 (1969)).

protected conduct,” even where the defendant’s calls

“contained political speech.” 724 A.2d 315, 318 (Pa.

1999). And, in State v. Camp, the North Carolina

Court of Appeals upheld a statute which forbade

persons from calling another “repeatedly, whether or

not conversation ensues, for the purpose of abusing,

annoying, threatening, terrifying or embarrassing any

person at the called number,” reasoning that the

statute proscribed unprotected conduct rather than

speech. 295 S.E.2d 766, 769 (N.C. Ct. App. 1982). See

also Thorne, 333 S.E.2d at 819–20.

These results are at stark odds with the majority of

federal and state courts that recognize the straightforward proposition that laws targeting communications

regulate speech and thus implicate the First Amendment.

B. Most Courts Hold The Opposite, With

All But One Granting Relief Under The

Overbreadth Doctrine

A large majority of courts have recognized that the

First Amendment applies to statutes criminalizing

electronic or phone communications made with a

proscribed intent. Many simply take as a given that

these laws regulate speech. See, e.g., United States v.

Weiss, No. 20-10283, 2021 WL 6116629, at *2 (9th Cir.

Dec. 27, 2021) (stating that because the federal

telecommunications harassment statute, § 223(a)(1)(C),

“criminalizes speech” it must be subject to First Amendment scrutiny). Others explicitly consider whether

these laws do regulate speech, and readily conclude

that they do. Most recently, in United States v. Yung

the Third Circuit rejected the argument that the

federal cyberstalking statute “focuses on conduct, not

speech,” finding that the law plainly regulates “a lot of

speech, [including] emails, texts, and social media

posts.” 37 F.4th 70, 77 (3d Cir. 2022). See also, Matter

of Welfare of A.J.B., 929 N.W.2d 840, 849 (Minn. 2019)

(holding that Minnesota’s anti-stalking statute that

proscribes, inter alia, sending electronic communications that made one feel “frightened, threatened,

oppressed, persecuted, or intimidated,” Minn. Stat.

§ 609.749(2)(6), reaches “purely expressive” communications and not just conduct).

While most courts agree that electronic harassment

statutes like the Texas law here regulate speech, they

diverge on the proper First Amendment analysis to

apply to such laws. Many courts have struck down

such laws as unconstitutionally overbroad; others

have chosen instead to apply a narrow construction to

salvage their constitutionality; and at least one has

upheld a statute after applying First Amendment

scrutiny. The lower courts are equally inconsistent in

their approach to telephonic harassment statutes.

1. Three state high courts have held electronic

harassment statutes to be unconstitutionally overbroad.

In People v. Golb, the New York Court of Appeals held

overbroad a statute almost identical to the Texas law.

15 N.E.3d 805, 810 (N.Y. 2014). The statute proscribed

communicating with a person “with intent to harass,

annoy, threaten, or alarm . . . in a manner likely

to cause annoyance or alarm.” N.Y. Penal Law §

240.30(1)(a). The court emphasized that the statute

swept “in broad strokes,” and its terms did not suggest

“constitutionally necessary limitations on its scope.”

Id. at 813.9

Several federal judges had already found the statute

unconstitutional, with one going so far as to describe it as “utterly

repugnant to the First Amendment.” Schlagler v. Phillips, 985 F.

Supp. 419, 421 (S.D.N.Y. 1991) (Brieant, J.); see also Vives v. City

of New York, 305 F. Supp. 2d 289, 299 (S.D.N.Y. 2003)

(Scheindlin, J.), rev’d on other grounds, 405 F.3d 115 (2d Cir.

The Minnesota Supreme Court reached a similar

conclusion with respect to two statutes in Matter of

Welfare of A.J.B. The court invalidated as overbroad

an anti-stalking statute that proscribed the sending of

electronic communications that caused someone to feel

“frightened, threatened, oppressed, persecuted, or intimidated,” among other things. Minn. Stat. § 609.749(2)(6).

It also found overbroad a mail-harassment statute

that proscribed, “with the intent to abuse, disturb, or

cause distress, repeatedly mail[ing] or deliver[ing] or

caus[ing] the delivery by any means, including electronically, of letters, telegrams, or packages.” Minn.

Stat. § 609.795(1)(3) (2018). The court severed “disturb”

and “cause distress” to cure the statute’s overbreadth,

leaving proscribed only those communications made

with an “intent to abuse.” Id. at 863.10

The Colorado Supreme Court similarly found portions

of its electronic harassment statute unconstitutionally

overbroad (but severed other provisions). See People v.

Moreno, 506 P.3d 849, 857 (Colo. 2022). That statute

reached the sending of electronic communications

“with intent to harass, annoy or alarm” and in a

manner “intended to harass or threaten bodily injury

or property damage,” among other things. Colo. Rev.

Stat. § 18-9-111(1). As the court explained, “people

often legitimately communicate in a manner ‘intended

to harass’ by persistently annoying or alarming others

to emphasize an idea or prompt a desired response.”

2005); Vives v. City of New York, 405 F.3d 115, 123–24 (2d Cir.

2005) (Cardamone, J., concurring in part, dissenting in part).

Though Texas Penal Code § 42.07(a)(7) does not contain the

words “disturb” or “cause distress,” the Court of Criminal Appeals

has construed each of the proscribed acts as “types of emotional

distress.” Scott v. State, 322 S.W.3d 662, 669 (Tex. Crim. App.

2010).

Id. at 855. This includes speech that warns people of

impending dangers, such as

communications made by email or social

media about the need to combat a public

health threat, or to seek shelter from an

imminent tornado, or to respond to an activeshooter situation,” or core political speech like

“diatribes posted on public officials’ social

media accounts by disgruntled constituents.

Id. The court severed the overbroad provisions,

leaving only those parts that prohibited “true threats

and obscenity.” Id. at 856.11 Other courts have

similarly struck down communications harassment

laws found to be facially overbroad. See Moreno, 506

P.3d at 857.

2. Three federal courts of appeal have taken a

different approach, upholding the federal cyberstalking statute after finding it facially overbroad by

construing it narrowly to apply only to categorically

unprotected speech. The federal law criminalizes

sending electronic communications “with the intent to

Many state courts have deemed analogous telephonic

harassment statutes to be overbroad. See, e.g., State v. Brobst,

857 A.2d 1253, 1254 (N.H. 2004) (striking down as facially

overbroad a law criminalizing the “[making of] a telephone call,

whether or not a conversation ensues, with a purpose to annoy or

alarm another”); People v. Klick, 362 N.E.2d 329, 332 (Ill. 1977)

(striking down as overbroad a law which criminalized the making

of a phone call “[w]ith intent to annoy another”); Bolles v. People,

541 P.2d 80, 81–83 (Colo. 1975) (invalidating telephone

harassment statute as overbroad); State v. Vaughn, 366 S.W.3d

513, 519–20 (Mo. 2012) (concluding that a provision defining

“harassment” to occur when a person “[k]nowingly makes

repeated unwanted communication to another person” was

overbroad and severing the provision accordingly).

kill, injure, harass, intimidate, or place under surveillance,” if the course of conduct, inter alia, “would be

reasonably expected to cause substantial emotional

distress.” 18 U.S.C. § 2261A(2). The Third Circuit,

for example, recognized that the intents to “harass”

and “intimidate” could naturally be read to include

“nonviolent and nonthreatening speech,” and that

criminalizing such speech “would collide with the First

Amendment.” United States v. Yung, 37 F.4th 70, 77,

78 (3d Cir. 2022). It thus construed the law’s intent

requirement narrowly to capture only “true threats”

and “speech integral to a crime.” Id. at 80. See also

United States v. Ackell, 907 F.3d 67, 76 (1st Cir. 2018)

(construing “intimidation” as a “true threat” to “avoid

a serious constitutional threat”) (cleaned up); United

States v. Fleury, 20 F.4th 1353, 1363 (11th Cir. 2021)

(finding Ackell’s overbreadth analysis “particularly

persuasive”). The Eighth Circuit recently overturned

a conviction on similar grounds in an as-applied

challenge. See United States v. Sryniawski, No. 213487, 2022 WL 4005336 at *3–5 (8th Cir. Sept. 2, 2022)

(holding that “the First Amendment prohibits Congress

from punishing political speech intended to harass or

intimidate” and construing the law narrowly to apply

only to categories of unprotected speech).12

Several state courts have applied a similar narrowing

construction to analogous telephonic harassment statutes. See,

e.g., State v. Moulton, 78 A.3d 55, 71–72 (Conn. 2013) (construing

harassment statute to extend only to categorically unprotected

speech, such as true threats). And the Supreme Court of

Maryland, the Alaska Court of Appeals, and the New Mexico

Court of Appeals have taken a related tack, limiting their states’

telephonic harassment laws to only apply to calls whose sole

purpose is to harass, and to exclude calls that have some

“legitimate purpose.” See Galloway v. State, 781 A.2d 851, 878–

80 (Md. 2001); McKillop v. State, 857 P.2d 358, 364–65 (Alaska

3. Charting an entirely different path, the Supreme

Court of Montana has recognized the First Amendment implications of an electronic harassment statute

but fully upheld it against an overbreadth challenge.

The Montana law proscribed electronic communications made “with the purpose to terrify, intimidate,

threaten, harass, annoy, or offend us[ing] obscene,

lewd, or profane language . . . or threaten[ing] to inflict

injury or physical harm to the person or property of

the person.” Mont. Code. Ann. § 45-8-13(1)(a) (West

2021). It also provided that “[t]he use of obscene, lewd,

or profane language or the making of a threat or lewd

or lascivious suggestions is prima facie evidence of an

intent to terrify, intimidate, threaten, harass, annoy,

or offend.” Mont. Code. Ann. § 45-8-13(1)(a) (West

2012). The court severed the prima facie evidence

provision as overbroad but, without discussion, upheld

the proscription on electronic communications. See

State v. Dugan, 303 P.3d 755, 772 (Mont. 2013).

By holding that the Texas statute targeted nonexpressive conduct, the Texas court necessarily concluded that the statute is not overbroad. The court’s

decisions thus deepened the split of authority. This

split, which will likely only grow as similar statutes

proliferate, creates a public discourse slanted toward

citizens on the pro-First Amendment side of the split.

In New York, an atheist may freely tweet at a

Christian in a deliberately alarming manner. How is

the Christian to respond? It depends on where they

live; Texas would require them to turn the other cheek.

Ct. App. 1993); State v. Stephens, 807 P.2d 241, 244 (N.M. Ct.

App. 1991).

III. THE ISSUE PRESENTED IS A MATTER

OF EXCEPTIONAL IMPORTANCE

In stark contrast to the majority of lower courts, the

Texas Court of Criminal Appeals embraced the

untenable proposition that no First Amendment issue

is presented by a law imposing criminal penalties on

the repetition of speech that “annoys,” “alarms,” “offends,”

or has other nebulous impacts on the recipient of that

speech. As a result, it found that no judicial scrutiny

of the law for overbreadth or vagueness is proper,

unless and until the law is applied in an allegedly

unconstitutional way. If permitted to stand, this

holding and its transformative approach to speech as

conduct threaten a far-reaching impact.

The Texas law does not punish speech integral to

criminal conduct as in Giboney v. Empire Storage &

Ice Co., 336 U.S. 490 (1949). To the contrary, speaking

is the conduct targeted by § 42.07(a)(7). Nor does the

law apply to speech without regard to its content as in

See Turner Broadcasting System, Inc. v. F.C.C., 512

U.S. 622, 642-43 (1994). Rather, repeated speech is

made criminal when its content is alarming, embarrassing, or offensive, and this is so regardless of

whether the communication is political or addresses a

matter of public concern. To hold that a law punishing

the repeated sending of electronic communications

cannot be facially challenged for overbreadth and

vagueness, upends settled law and threatens to permit

an array of unreviewable First Amendment harms

from the self-censorship and discriminatory enforcement generated by overbroad restrictions on speech.

Under the rationale of the Texas court, laws punishing the repeated sending of political fundraisers,

unwelcome romantic appeals, or hate speech could

all lead to criminal liability under broadly worded

statues. The chilling effect would be wide and real,

with no prospect of facial judicial review. See Netchoice,

L.L.C. v. Paxton, 49 F.4th 439, 450-51 (5th Cir. 2022)

(discussing the chilling effects of regulatory schemes

on protected expression).

Such unreviewable laws not only chill, they create

opportunities for misuse and abuse by low level

officials with discretion to apply the vague terms

creating criminality. As this Court warned in

Thornhill v. Alabama,

The existence of such a statute, which readily

lends itself to harsh and discriminatory

enforcement by local prosecuting officials,

against particular groups deemed to merit

their displeasure, results in a continuous and

pervasive restraint on all freedom of

discussion that might reasonably be regarded

as within its purview.

310 U.S. 88, 97–98 (1940) (Murphy, J.). The preclusion

of any facial review of a law criminalizing repeated

speech intended to alarm threatens just this result.

This holding by the Texas court threatens farreaching consequences. Removing established First

Amendment limits to punishment that may be

imposed for sending electronic communications has

the potential to impact the daily lives of countless

Americans.

The principle this Court elucidated in Stevens is that

all speech that does not fall into historically unprotected categories of speech is, a fortiori, protected, and

that only this Court may declare a new category of

unprotected speech. In the twelve years since Stevens

was decided, this Court has not declared such a new

category.

The internet also provides an increasingly crucial

space for political discussion. Citizens depend on

electronic communication to express their political

views. Core political speech often consists of “vehement, caustic, and sometimes unpleasantly sharp

attacks.” Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 51

(1988) (quoting N.Y. Times v. Sullivan, 376 U.S. 254,

270 (1964)). The Texas statute forbids much of it.

Similar trends can be found within religious

organizations across the country, as they increasingly

take advantage of the Internet’s accessibility to spread

their beliefs. They also use these media to express

their religious viewpoints on “broad issues of interest

to society at large.” Snyder v. Phelps, 562 U.S. 443, 454

(2011). Some may find such speech may be “insulting,

and even outrageous,” but it is still protected by the

First Amendment. Id.

Moreover, finding no need to conduct an overbreadth analysis on a facial challenge to a law

proscribing certain electronic communications allows

government officials to selectively apply vague prohibitions to target unpopular people and groups. Almost

any online speech could be perceived as annoying,

abusive, harassing, and the like, opening the door for

prosecutors to charge citizens for exercising their free

speech rights. This could include, for instance, repeatedly expressing approval or disapproval of this Court’s

decision in Dobbs v. Jackson Women’s Health Org., No.

19-1392 (June 24, 2022) to partisans holding the

opposite view.

Even if those prosecutions would ultimately fail on

an “as applied” analysis, “[m]any persons, rather than

undertake the considerable burden (and sometimes

risk) of vindicating their rights through case-by-case

litigation, will choose simply to abstain from protected

speech—harming not only themselves but society as a

whole, which is deprived of an uninhibited marketplace

of ideas.” Citizens United v. Fed. Election Comm’n, 558

U.S. 310, 335 (2010).

Whether a criminal law punishing the repeated

transmission of speech with a proscribed intent

implicates the First Amendment is a significant issue

that warrants a definitive resolution by this Court,

particularly given the confusion and disagreement

that currently exists among state courts of last resort

and the federal circuits.

Unless reversed by this Court, the rejection of

fundamental First Amendment principles by the

Texas Court of Criminal Appeals threatens to broaden

criminal liability for otherwise-protected speech so

long as some court somewhere can, by its own ipse

dixit, declare that speech is “non-communicative”

because the court finds that content of the speech

objectionable. That is the very soul of a content-based

restriction, and no inferior court should be allowed to

circumvent this Court’s precedent by declaring speech

to be “non-speech” based on its content or the intent

behind the speech.

CONCLUSION

For the foregoing reasons, Petitioner respectfully

requests that this Court grant certiorari.

Respectfully submitted,

MARK W. BENNETT

917 Franklin Street

Fourth Floor

Houston, Texas 77002

(713) 224-1747

mb@ivi3.com

LANE A. HAYGOOD

Counsel of Record

3800 E. 42nd St.

Suite 110

Odessa, Texas 79762

(432) 803-5800

lhaygood@galyen.com

Counsel for Petitioner

November 7, 2022

APPENDIX

APPENDIX A

OFFICIAL NOTICE FROM COURT OF

CRIMINAL APPEALS OF TEXAS

P.O. BOX 12308, CAPITOL STATION,

AUSTIN, TEXAS 78711

6/22/2022

COA No. 08-20-00066-CR

MOORE, EX PARTE SLADE ALAN Tr. Ct. No. 19-0258

PD-0072-22

On this day, the Appellant’s petition for discretionary

review has been refused.

Deana Williamson, Clerk

LANE HAYGOOD

HAYGOOD LAW FIRM

522 NORTH GRANT

ODESSA, TX 79761

*DELIVERED VIA E-MAIL*

APPENDIX B

2022 WL 336776

Only the Westlaw citation

is currently available.

SEE TX R RAP RULE 47.2

FOR DESIGNATION AND

SIGNING OF OPINIONS.

(Do Not Publish)

Court of Appeals of Texas, El Paso.

EX PARTE Slade Alan

MOORE, Appellant.

No. 08-20-00064-CR

February 4, 2022

Discretionary Review

Refused June 22, 2022

Appeal from the County Court of Andrews County,

Texas (TC# 19-0135)

Attorneys and Law Firms

Mark W. Bennett, Lane A. Haygood, for Appellant.

Sean Galloway, for State of Texas.

Before Rodriguez, C.J., Palafox, and Alley, JJ.

OPINION

JEFF ALLEY, Justice

*1 This appeal arises from Appellant Slade Alan

Moore’s pretrial habeas-corpus proceeding challenging

the information charging Moore with harassment

under Tex.Penal Code Ann. § 42.07(a)(7). In his application for writ of habeas corpus and associated motion

to quash, Moore argued that he was being illegally

restrained because section 42.07(a)(7) is facially

unconstitutional under the U.S. Constitution due to

the statute’s overbreadth and vagueness. The trial

court denied Moore’s writ application and motion

to quash information, and he now appeals the trial

court’s order denying his writ application. For the

reasons below, we affirm the trial court’s order and

remand the cause to the trial court.

I. Background

The State charged Moore with harassment under

section 42.07(a)(7), alleging that on or about April 19,

2019, Moore:

did then and there, with intent to harass,

annoy, alarm, abuse, torment or embarrass

[K.M.],1 hereafter styled the complainant,

cause the telephone of the complainant to

ring repeatedly and did send repeated

electronic communications to the complainant in a manner reasonabl[y] likely to harass,

annoy, alarm, abuse, torment, embarrass, or

offend another, namely [K.M.].

Moore filed a pretrial application for writ of habeas

corpus and motion to quash the information, arguing

that he was illegally confined or restrained and that

the information should be quashed because the statute

under which he was charged, section 42.07(a)(7), was

unconstitutionally overbroad and vague under the

First Amendment of the U.S. Constitution. In particular, Moore contended that section 42.07(a)(7)’s prohibitions against certain speech constituted content-based

restrictions on speech of the type that did not fall

into any previously recognized category of unprotected

To protect the complainant’s identity, we refer to her as

“K.M.” See Tex.R.App.P. 9.10.

speech. Moore further contended that section 42.07(a)(7)

was unconstitutionally vague because of the uncertain

meaning of what constitutes “repeated” communications.

The trial court denied Moore’s writ application and

motion to quash by written order. Moore appealed the

court’s order denying his writ application and motion

to quash, and this Court first dismissed the appeal for

want of jurisdiction. See Ex parte Moore, No. 08-2000064-CR, 2020 WL 1809169, at *1 (Tex.App.--El Paso

Apr. 9, 2020, no pet.) (mem. op., not designated for

publication) (Moore I), superseded by Ex parte Moore,

No. 08-20-00064-CR, 2020 WL 2079215, at *1

(Tex.App.--El Paso Apr. 30, 2020, no pet.) (mem. op. on

reh’g, not designated for publication) (Moore II). On

rehearing, Moore argued that he was appealing the

denial of his writ application, and because denial of a

pretrial habeas corpus writ application is a final

appealable order, we withdrew our original opinion

and issued an opinion reinstating the appeal for

consideration of section 42.07(a)(7)’s constitutionality.

See Moore II, 2020 WL 2079215, at *1. This issue now

prompts this appeal.

II. Discussion

*2 At the outset, we note that this Court decided the

facial constitutionality of section 42.07(a)(7) in Ex

parte Hinojos, No. 08-17-00077-CR, 2018 WL 6629678,

at *5-6 (Tex.App.--El Paso Dec. 19, 2018, pet. ref’d) (not

designated for publication). In Hinojos, we held that

section 42.07(a)(7) is not facially unconstitutional on

the grounds of being overbroad or unduly vague. Id. at

*5; see also Torres v. State, No. 08-19-00209-CR, 2021

WL 3400598, at *7 n.1 (Tex.App.--El Paso Aug. 4, 2021,

no pet.) (not designated for publication) (Alley, J.,

concurring) (recognizing Hinojos). These are essentially

the same matters Appellant raises in this appeal.

Generally, an intermediate appellate court has an

obligation to follow its own precedent unless it

expressly overrules it. See Kiffe v. State, 361 S.W.3d

104, 116 (Tex.App.--Houston [1st Dist.] 2011, pet.

ref’d), citing Rose v. State, 752 S.W.2d 529, 555 (Tex.

Crim. App. 1988) (op. on reh’g) (Teague, J.,

concurring). Because we find no reason to expressly

overrule Hinojos, we follow its holding here. See id. We

therefore conclude that Appellant’s facial challenge to

section 42.07(a)(7) must fail.

Finally, we note that several cases directly raising

the facial constitutionality of section 42.07(a)(7) are

pending before the Texas Court of Criminal Appeals.

Three of our sister courts have found section

42.07(a)(7) to be facially unconstitutional. Griswold v.

State, No. 05-19-01561-CR, 2021 WL 6049853, at *3-4

(Tex.App.--Dallas Dec. 21, 2021, mot. reh’g en banc

filed); State v. Chen, 615 S.W.3d 376 (Tex.App.-Houston [14th Dist.] 2020, pet. filed); Ex parte Barton,

586 S.W.3d 573 (Tex.App.--Fort Worth 2019, pet.

granted) (op. on reh’g). Three of our other sister courts

have upheld the constitutionality of the statute. State

v. Grohn, 612 S.W.3d 78 (Tex.App.--Beaumont 2020,

pet. filed); Ex parte McDonald, 606 S.W.3d 856

(Tex.App.--Austin 2020, pet. filed); Ex parte Sanders,

No. 07-18-00335-CR, 2019 WL 1576076 (Tex.App.-Amarillo Apr. 8, 2019, pet. granted) (mem. op., not

designated for publication). Elongating this opinion

with additional discussion of the issues would add

nothing new to what is already pending before the

Texas Court of Criminal Appeals. We adhere to our

prior precedent and overrule Appellant’s Issue One.

III. Conclusion

The trial court’s order is affirmed. We remand

this case to the trial court for further proceedings

consistent with this opinion.

All Citations

Not Reported in S.W. Rptr., 2022 WL 336776

APPENDIX C

IN THE COUNTY COURT OF

ANDREWS COUNTY, TEXAS

————

Cause No. 19-0135, 19-0237; and 19-0258

————

STATE OF TEXAS

SLADE ALAN MOORE

————

ORDER ON DEFENDANT'S MOTION TO

QUASH INFORMATION

On this day, the Court considered Defendant’s

Motion to Quash Information. Having reviewed the

motion and brief attached to the motion, the Court

finds that the motion should be DENIED.

It is, therefore, ORDERED, that the Defendant’s

Motion to Quash is DENIED.

SIGNED this 14th day of February, 2020.

/s/ [Illegible]

JUDGE PRESIDING

APPENDIX D

CAUSE #19-0258

INFORMATION - HARASSMENT 42.07(c) Class B

Misdemeanor, CBS No.13160012

IN THE NAME AND BY THE AUTHORITY OF THE

STATE OF TEXAS:

Cassandra Moholt Cheek, Assistant County Attorney

of the County of Andrews, State of Texas, at this, the

January Term, A.D. 2019 of the Andrews County

Court, comes in behalf of the State of Texas, and in

connection with the complaint of Chris Davis herein

filed, presents in and to said County Court that in

said County and State, on or about the 20th day of

June, 2019 and before the making and filing of this

information, SLADE ALAN MOORE, 69996, hereafter

styled the Defendant, did then and there, with intent

to harass, annoy, alarm, abuse torment, or embarrass

Kimberly McCurdy, hereafter styled the complainant,

threaten the complainant in a manner reasonably

likely to alarm the complainant, to inflict bodily injury

on the injured party;

AGAINST THE PEACE AND DIGNITY OF THE

STATE.

/s/ Cassandra Moholt Cheek

CASSANDRA MOHOLT CHEEK

Assistant County Attorney

Andrews County, Texas

APPENDIX E

CAUSE #19-0258

COMPLAINT HARASSMENT 42.07(c)

Misdemeanor, CJIS No. 13160012

Class

IN THE NAME AND BY THE AUTHORITY OF THE

STATE OF TEXAS:

I, Chris Davis, do solemnly swear that I have good

reason to believe, and do believe, that on or about

the 20th day of June, 2019 and before the making

and filing of this complaint, in the County of Andrews,

and State of Texas, SLADE ALAN MOORE, 69996,

hereafter styled the Defendant, did then and there,

with intent to harass, annoy, alarm, abuse torment, or

embarrass Kimberly McCurdy, hereafter styled the

complainant, threaten the complainant in a manner

reasonably likely to alarm the complainant, to inflict

bodily injury on the injured party;

AGAINST THE PEACE AND DIGNITY OF THE

STATE.

/s/ Chris Davis

Chris Davis, Affiant

Sworn to and Subscribed by, Chris Davis a credible

person, before me, on this 16th day of July, 2019.

/s/ Cassandra Moholt Cheek

CASSANDRA MOHOLT CHEEK

Assistant County Attorney

Andrews County, Texas

19-0564 Escobar, Justin

10a

APPENDIX F

CAUSE #19-0237

INFORMATION - HARASSMENT 42.07(c) Class B

Misdemeanor, CJIS No.13160012

IN THE NAME AND BY THE AUTHORITY OF THE

STATE OF TEXAS:

Cassandra Moholt Cheek, Assistant County Attorney

of the County of Andrews, State of Texas, at this, the

January Term, A.D. 2019 of the Andrews County

Court, comes in behalf of the State of Texas, and in

connection with the complaint of Chris Davis herein

filed, presents in and to said County Court that in

said County and State, on or about the 21st day of

June, 2019 and before the making and filing of this

information, SLADE ALAN MOORE, 69996, hereafter

styled the Defendant, did then and there, with intent

to harass, annoy, alarm, abuse, torment, or embarrass

Kimberly McCurdy, hereafter styled the complainant,

threaten the complainant in a manner reasonable

likely to alarm the complainant, to inflict bodily injury;

AGAINST THE PEACE AND DIGNITY OF THE

STATE.

/s/ Cassandra Moholt Cheek

CASSANDRA MOHOLT CHEEK

Assistant County Attorney

Andrews County, Texas

11a

APPENDIX G

CAUSE #19-0237

COMPLAINT HARASSMENT 42.07(c)

Misdemeanor, CJIS No. 13160012

Class

IN THE NAME AND BY THE AUTHORITY OF THE

STATE OF TEXAS:

I, Chris Davis, do solemnly swear that I have good

reason to believe, and do believe, that on or about

the 21st day of June, 2019 and before the making

and filing of this complaint, in the County of Andrews,

and State of Texas, SLADE ALAN MOORE, 69996,

hereafter styled the Defendant, did then and there,

with intent to harass, annoy, alarm, abuse, torment,

or embarrass Kimberly McCurdy, hereafter styled the

complainant, threaten the complainant in a manner

reasonable likely to alarm the complainant, to inflict

bodily injury;

AGAINST THE PEACE AND DIGNITY OF THE

STATE

/s/ Chris Davis

Chris Davis, Affiant

Sworn to and Subscribed by, Chris Davis a credible

person, before me, on this 2nd day of July, 2019.

/s/ Cassandra Moholt Cheek

CASSANDRA MOHOLT CHEEK

Assistant County Attorney

Andrews County, Texas

19-0547 Rivera, Pat

12a

APPENDIX H

CAUSE #19-0135

INFORMATION - HARASSMENT 42.07(c) Class B

Misdemeanor, CJIS No.13160012

IN THE NAME AND BY THE AUTHORITY OF THE

STATE OF TEXAS:

Cassandra Moholt Cheek, Assistant County Attorney

of the County of Andrews, State of Texas, at this, the

January Term, A.D. 2019 of the Andrews County

Court, comes in behalf of the State of Texas, and in

connection with the complaint of Chris Davis herein

filed, presents in and to said County Court that in said

County and State, on or about the 19th day of April,

2019 and before the making and filing of this

information, SLADE ALAN MOORE, 69996, hereafter

styled the Defendant, did then and there, with intent

to harass, annoy, alarm, abuse, torment or embarrass

Kimberly McCurdy, hereafter styled the complainant,

cause the telephone of the complainant to ring

repeatedly and did send repeated electronic communications to the complainant in a manner reasonable

likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another, namely Kimberly McCurdy.

AGAINST THE PEACE AND DIGNITY OF THE

STATE.

/s/ Cassandra Moholt Cheek

CASSANDRA MOHOLT CHEEK

Assistant County Attorney

Andrews County, Texas

13a

APPENDIX I

CAUSE #19-0135

COMPLAINT HARASSMENT 42.07(c)

Misdemeanor, CJIS No. 13160012

Class

IN THE NAME AND BY THE AUTHORITY OF THE

STATE OF TEXAS:

I, Chris Davis, do solemnly swear that I have good

reason to believe, and do believe, that on or about

the 19th day of April, 2019 and before the making

and filing of this complaint, in the County of Andrews,

and State of Texas, SLADE ALAN MOORE, 69996,

hereafter styled the Defendant, did then and there,

with intent to harass, annoy, alarm, abuse, torment or

embarrass Kimberly McCurdy, hereafter styled the

complainant, cause the telephone of the complainant

to ring repeatedly and did send repeated electronic

communications to the complainant in a manner reasonable likely to harass, annoy, alarm, abuse, torment,

embarrass, or offend another, namely Kimberly McCurdy.

AGAINST THE PEACE AND DIGNITY OF THE

STATE.

/s/ Chris Davis

Chris Davis, Affiant

Sworn to and Subscribed by, Chris Davis a credible

person, before me, on this 3rd day of May, 2019.

/s/ Cassandra Moholt Cheek

CASSANDRA MOHOLT CHEEK

Assistant County Attorney

Andrews County, Texas

19-0344 Bishop, Eddie

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.