Petition for Writ of Certiorari — James Ryan Earl, Petitioner v. Texas
Supreme Court briefApr 30, 2026
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No. ___
IN THE
__________
JAMES RYAN EARL,
V.
PETITIONER,
THE STATE OF TEXAS,
RESPONDENT.
___________
On Petition For Writ Of Certiorari To The Court of
Appeals for the Third District of Texas
___________
PETITION FOR WRIT OF CERTIORARI
___________
Mark W. Bennett
Institute for Advanced
Criminal Law
Studies
917 Franklin Street,
Fourth Floor
Houston, Texas 77002
(713) 224-1747
mb@iacls.org
Lane A. Haygood
Counsel of Record
Haygood Law Firm
620 N. Grant Ave.,
Suite 913
Odessa, Texas 79761
(432) 279-0411
lane@haygoodlawfirm.com
Counsel for Petitioner
QUESTION PRESENTED
Texas Penal Code § 42.07(a)(7) makes it a crime to
“send[] repeated electronic communications in a
manner reasonably likely to harass, annoy, alarm,
abuse, torment, embarrass, or offend another” when
done with intent to produce any of those same effects.
The Texas Court of Criminal Appeals has repeatedly
held that the statute does not even “implicate” the
First Amendment because it regulates “non-speech
conduct.” Ex parte Barton, 662 S.W.3d 876, 884 (Tex.
Crim. App. 2022); Ex parte Sanders, 663 S.W.3d 197,
215–16 (Tex. Crim. App. 2022). Yet last year, the same
court held the same statute unconstitutional as
applied because the messages prosecuted under it
were “speech.” Owens v. State, 728 S.W.3d 155, 167
(Tex. Crim. App. 2025). These positions are
inconsistent; either the means of committing the
offense as described by the statute are “speech” (and
thus implicate the First Amendment) or the only
conduct which can be constitutionally forbidden under
the statute is the non-content, non-speech part of the
offense.
The question presented is thus:
Whether Texas Penal Code § 42.07(a)(7), which
criminalizes repeated electronic communications
sent with intent to and reasonably likely to annoy,
alarm, embarrass, or offend another person, is
overbroad under the First Amendment.
(ii)
PARTIES TO THE PROCEEDING
Petitioner is James Ryan Earl, defendant-appellant
below
Respondent is the State of Texas.
CORPORATE DISCLOSURE STATEMENT
Petitioner is an individual. No corporate disclosure
statement is required under this Court's Rule 29.6.
RELATED PROCEEDINGS
The proceedings directly related to this case are:
State v. Earl, No. C-1-CR-18-501959, County Court
at Law No. 4 of Travis County, Texas (order
denying pretrial application for writ of habeas
corpus and motion to quash entered Aug. 8, 2022;
order of deferred adjudication entered July 6,
2023).
Earl v. State, No. 03-23-00427-CR, Court of
Appeals for the Third District of Texas at Austin
(memorandum opinion affirming entered June 27,
2025).
Earl v. State, No. PD-0519-25, Texas Court of
Criminal Appeals (petition for discretionary
review refused Jan. 15, 2026; Judge McClure
would grant).
There are no other proceedings in state or federal trial
or appellate courts, or in this Court, directly related to
this case within the meaning of Rule 14.1(b)(iii).
(iii)
TABLE OF CONTENTS
Question Presented ...................................................... i
Related Proceedings .................................................... ii
Table of Contents ....................................................... iii
Table of Authorities ................................................... vi
Introduction ................................................................. 1
Opinions and Orders Below ........................................ 1
Jurisdiction .................................................................. 1
Constitutional and Statutory Provisions
Involved ....................................................................... 1
Statement of the Case ................................................. 2
I. Statutory Background ....................................... 3
II. Factual and Procedural Background ................ 5
Reasons for Granting the Writ ................................... 6
III. The Texas Court of Criminal Appeals has
abrogated First Amendment scrutiny of an
enormous category of speech through a
doctrinal innovation that conflicts with
this Court’s precedent........................................ 7
Section 42.07(a)(7) punishes protected
speech based on its content. ...................... 7
The “implication” framework
contradicts this Court’s decisions in
Counterman, Stevens, Alvarez, and
Reed. ......................................................... 10
IV. The Court of Criminal Appeals own
decision in Owens v. State has exposed
Barton and Sanders as doctrinally
incoherent......................................................... 12
(iv)
V. The decision below deepens a conflict with
federal courts of appeals over how to
construe similarly worded harassment
statutes. ............................................................ 14
A minority of courts hold that laws
criminalizing electronic or telephonic
communications made with a
disfavored intent raise no First
Amendment issue. .................................... 17
Most courts hold the opposite, but not
all have granted relief under the
overbreadth doctrine. ............................... 20
VI. This case is an ideal vehicle: the earlier
ripeness objection is gone, and the
question is outcome-determinative. ................ 24
Conclusion ................................................................. 25
Appendix A — Memorandum Opinion of the
Court of Appeals for the Third District of Texas
(June 27, 2025) ......................................................... 1a
Appendix B — Notice of Refusal of Petition for
Discretionary Review, Court of Criminal
Appeals of Texas (January 15, 2026) .................... 14a
Appendix C — Order Denying Pretrial
Application for Writ of Habeas Corpus and
Motion to Quash,
County Court at Law No. 4 of Travis County,
Texas (August 8, 2022) .......................................... 15a
Appendix D — Order of Deferred Adjudication,
County Court at Law No. 4 of Travis County,
Texas (July 6, 2023) ............................................... 17a
(v)
Appendix E — Trial Court’s Certification of
Defendant’s Right of Appeal (July 6, 2023) .......... 28a
Appendix F — Texas Penal Code § 42.07
(Effective September 1, 2017 to August 31,
2021) ....................................................................... 31a
Appendix G — Texas Penal Code § 42.07
(Effective December 4, 2025) ................................. 34a
(vi)
TABLE OF AUTHORITIES
Cases
Barton v. Texas,
143 S. Ct. 774 (2023) ...................................... 24
Cohen v. California,
403 U.S. 15 (1971) ........................................ 4, 7
Commonwealth v. Hendrickson,
724 A.2d 315 (Pa. 1999) ................................. 19
Counterman v. Colorado,
600 U.S. 66 (2023) ................................ 7, 10, 25
Ex parte Barton,
662 S.W.3d 876 (Tex. Crim. App. 2022) . 2, 3, 5,
6, 8, 9, 13, 14, 16, 17, 24, 25
Ex parte McDonald,
606 S.W.3d 856 (Tex. App.—Austin 2020) ...... 6
Ex parte Ogle,
No. 03-18-00207-CR,
2018 WL 3637385 (Tex. App.—Austin
2018).................................................................. 9
Ex parte Ordonez,
693 S.W.3d 419 (Tex. App.—Houston
[14th Dist.] 2023)............................................ 16
Ex parte Sanders,
663 S.W.3d 197 (Tex. Crim. App. 2022)
....................... 2–3, 5, 6, 8, 12–14, 16–17, 24–25
Gormley v. Director, Connecticut State Dep't
of Adult Probation,
449 U.S. 1023 (1980) ................................ 12, 18
Hustler Magazine, Inc. v. Falwell,
485 U.S. 46 (1988) .................................. 4, 7, 18
Int’l Soc’y for Krishna Consciousness, Inc. v.
Lee,
505 U.S. 672 (1992) .................................... 7, 12
(vii)
Matter of Welfare of A.J.B.,
929 N.W.2d 840 (Minn. 2019) .................. 20–21
Miami Herald Pub. Co. v. Tornillo,
418 U.S. 241 (1974) ....................................... 17
Moore v. Texas,
143 S. Ct. 776 (2023) ................................ 24–25
N.A.A.C.P. v. Claiborne Hardware Co.,
458 U.S. 886 (1982) .................................... 7, 12
Owens v. State,
728 S.W.3d 155 (Tex. Crim. App. 2025)
................................................. 2–3, 7, 12–14, 25
Packingham v. North Carolina,
582 U.S. 98 (2017) .......................................... 17
People v. Golb,
15 N.E.3d 805 (N.Y. 2014) ............................. 21
People v. Moreno,
506 P.3d 849 (Colo. 2022)............................... 22
Reed v. Town of Gilbert,
576 U.S. 155 (2015) ............................ 2, 4, 8, 11
Reno v. ACLU,
521 U.S. 844 (1997) .................................. 16–17
Sanders v. Texas,
143 S. Ct. 774 (2023) ...................................... 24
Snyder v. Phelps,
562 U.S. 443 (2011) ................................ 4, 7, 12
State v. Calvert,
No. 15-0195,
2016 WL 3179968 (W. Va. June 3, 2016) ...... 18
State v. Dugan,
303 P.3d 755 (Mont. 2013) ............................. 23
State v. Thorne,
333 S.E.2d 817 (W. Va. 1985) ........................ 18
Thorne v. Bailey,
846 F.2d 241 (4th Cir. 1988) .................... 18–19
(viii)
United States v. Ackell,
907 F.3d 67 (1st Cir. 2018)................. 15, 22–23
United States v. Alvarez,
567 U.S. 709 (2012) .................................. 10–11
United States v. Fleury,
20 F.4th 1353 (11th Cir. 2021) ...................... 23
United States v. Hansen,
599 U.S. 762 (2023) .......................................... 8
United States v. Osinger,
753 F.3d 939 (9th Cir. 2014) .......................... 18
United States v. Sryniawski,
48 F.4th 583 (8th Cir. 2022) .......................... 22
United States v. Stevens,
559 U.S. 460 (2010) .................................... 8, 11
United States v. Waggy,
936 F.3d 1014 (9th Cir. 2019) ........................ 19
United States v. Weiss,
No. 20-10283,
2021 WL 6116629 (9th Cir. 2021)............ 19–20
United States v. Yung,
37 F.4th 70 (3d Cir. 2022) .................. 15, 20, 22
Watts v. United States,
394 U.S. 705 (1969) ........................................ 19
Statutes
18 U.S.C. § 2261A .............................. 15, 18, 20, 22
28 U.S.C. § 1257................................................... 24
47 U.S.C. § 223............................................... 19–20
Mont. Code. Ann. § 45–8–13 ............................... 23
Sup. Ct. R. 10 ....................................................... 15
Tex. Penal Code § 42.07 .......... 2–14, 16, 21, 23–25
INTRODUCTION
OPINIONS AND ORDERS BELOW
The memorandum opinion of the Court of Appeals for
the Third District of Texas at Austin (App. A, 1a–13a)
is unpublished and available at 2025 WL 1773011.
The order of the Texas Court of Criminal Appeals
refusing Petitioner’s petition for discretionary review
(App. B, 14a) is unreported. The order of the County
Court at Law No. 4 of Travis County denying
Petitioner’s pretrial motion to quash and application
for writ of habeas corpus (App. C, 15a–16a) is
unreported.
JURISDICTION
The Texas Court of Criminal Appeals refused
Petitioner’s petition for discretionary review on
January 15, 2026. On April 16, 2026, Justice Alito
extended the time within which to file a petition for a
writ of certiorari to and including April 30, 2026. The
jurisdiction of this Court is invoked under 28 U.S.C. §
1257(a).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The First Amendment to the United States
Constitution provides, in relevant part: “Congress
shall make no law ... abridging the freedom of speech.”
The First Amendment is applied to the States through
the Fourteenth Amendment. The relevant provisions
of Texas Penal Code § 42.07, including subsections
(a)(4), (a)(7), (a)(8), and (b)(1), are set forth in full in
Appendices F and G.
2
STATEMENT OF THE CASE
Texas makes it a crime to send more than one email,
more than one text message, or more than one socialmedia post with the intent to annoy, embarrass, or
offend someone else, if it is reasonably likely to do so.
Tex. Penal Code § 42.07(a)(7). Because the statute
turns on the intent with which a communication is
sent and the emotional reaction it is likely to
provoke—classic hallmarks of a content-based
restriction, see Reed v. Town of Gilbert, 576 U.S. 155,
163–64 (2015)—every state and federal court applying
ordinary First Amendment principles would—or
should—subject it to strict scrutiny.
But the Texas Court of Criminal Appeals has
repeatedly held that the statute does not even
“implicate” the First Amendment. Ex parte Sanders,
663 S.W.3d 197, 215 (Tex. Crim. App. 2022); Ex parte
Barton, 662 S.W.3d 876, 884 (Tex. Crim. App. 2022).
On that theory, repeated electronic communications
are treated as “non-speech conduct,” regardless of
their content, and the legitimacy of the prosecution is
tested under rational-basis review alone. Barton, 662
S.W.3d at 884.
That rule cannot be reconciled with this Court’s
decisions; or, as of June 2025, with the Texas Court of
Criminal Appeals’ own decisions. In Owens v. State,
the very court that decided Barton and Sanders
reversed a conviction under § 42.07(a)(7) because, as
the court put it, “the messages themselves are speech”
and “the prosecution in this case was based on
Appellant’s speech, not his action.” 728 S.W.3d 155,
167 (Tex. Crim. App. 2025). Texas’s criminal
3
jurisprudence
now
contain
two
mutually
contradictory propositions about the same statute: it
does not implicate the First Amendment at all
(Barton/Sanders), and it impermissibly regulates
speech (Owens). This Court’s review is necessary to
resolve that conflict and to correct the underlying
First Amendment error and the emerging circuit split
among lower courts. This case presents the ideal
vehicle for doing so because it is a clean appeal
following a guilty plea of whether the prosecution may
secure a conviction without violating a defendant’s
First Amendment rights.
I.
Statutory Background
Texas Penal Code § 42.07 is a generalized harassment
statute addressed to several discrete means of
harassing another person, including obscene
communication (§ 42.07(a)(1)), threats (§ 42.07(a)(2)),
false reports of death or serious injury (§ 42.07(a)(3)),
and repeated telephone calls (§ 42.07(a)(4)).
Subsection (a)(7), enacted in 2001, criminalizes a
category of communicative conduct that did not exist
when the harassment statute was first adopted:
repeated electronic communications. It provides:
A person commits an offense if, with intent to
harass, annoy, alarm, abuse, torment, or
embarrass another, the person ... sends repeated
electronic communications in a manner reasonably
likely to harass, annoy, alarm, abuse, torment,
embarrass, or offend another.
Tex. Penal Code § 42.07(a)(7). The statute defines
“electronic communication” as “a transfer of signs,
signals, writing, images, sounds, data, or intelligence
4
of any nature transmitted in whole or in part by a
wire, radio, electromagnetic, photoelectronic, or
photo-optical system,” and specifies that the term
includes communications made by electronic mail,
instant message, network call, facsimile machine, or
pager. Id. § 42.07(b)(1). By its plain text, the statute
reaches every medium of modern digital expression,
from email, text message, direct message, socialmedia post, blog comment, and podcast upload to
video, so long as (i) the communication is “electronic,”
(ii) it is one of at least two sent to the complainant,
(iii) the sender intends any of the enumerated
reactions, and (iv) it is “reasonably likely” to produce
any of those reactions.
Three features of the statute are critical. First, the
subjective mental state in recipients it targets (to
harass, annoy, alarm, abuse, torment, embarrass, or
offend) are exactly the reactions that protected speech
often provokes. Political criticism is meant to annoy;
investigative journalism is meant to embarrass;
religious and moral exhortation is often meant to
alarm. See, e.g., Cohen v. California, 403 U.S. 15, 16,
26 (1971); Snyder v. Phelps, 562 U.S. 443, 458 (2011);
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50, 55
(1988). Second, the statute turns on the speaker’s
subjective intent and the recipient’s emotional
response. That dual focus on the speaker’s purpose
and the audience effect is the paradigm of a contentbased regulation. Reed, 576 U.S. at 163–64. Third, the
“reasonably likely” standard means that conviction
depends on the factfinder’s assessment of how a
reasonable recipient would react to the content of the
5
message. Jurors cannot perform that assessment
without evaluating what the message says.
That feature was not lost on the Texas Legislature.
When it added § 42.07(a)(8) in 2021, it chose to limit
liability for published electronic communications to
those not made “in connection with a matter of public
concern.” Tex. Penal Code § 42.07(a)(8); Act of May 12,
2021, 87th Leg., R.S., ch. 178, § 1, 2021 Tex. Gen.
Laws 385, 386. That exception would be meaningless
unless the Legislature understood subsection (a)(8)—
and, necessarily, the text it closely tracks in
subsection (a)(7)—to regulate speech.
II.
Factual and Procedural Background
On December 19, 2018, the complainant asked
Petitioner by email to “cease all communication.” App.
3a. Later that day, Petitioner sent three text
messages, expressing in harsh terms that the
complainant was a “horrible human,” a “liar,” a
“cheater,” and “vile.” Id. App. 3a. Petitioner was
charged with a single count of electronic harassment
under § 42.07(a)(7). App. 3a.
Proceeding pro se at that stage, Petitioner filed a
combined pretrial application for writ of habeas
corpus and motion to quash the information, arguing
that § 42.07(a)(7) was facially overbroad and void for
vagueness. The trial court denied the motion by
written order, adopting findings prepared by the State
that Barton and Sanders (then recently decided)
controlled. App. C, 15a–16a. Counsel then entered an
appearance, and Petitioner pleaded no contest in
exchange for a twelve-month deferred adjudication,
reserving the right to appeal the constitutionality of
6
the statute. App. D, 17a–27a. The trial court certified
that reserved right. App. E, 28a–30a.
The Court of Appeals affirmed. It recognized the force
of Petitioner’s arguments under Counterman and this
Court’s content-discrimination cases, but held itself
bound by Barton, Sanders, and its own prior decision
in Ex parte McDonald, 606 S.W.3d 856 (Tex. App.—
Austin 2020, pet. ref’d). App. 10a–12a. The court
acknowledged that “even if we were to agree that
Counterman, and cases before it, cut against the
Court of Criminal Appeals’ determination that section
42.07(a)(7) does not implicate the First Amendment,”
it “remain[s] bound to follow it.” App. 12a. The court
invited resolution by a higher court.
The Texas Court of Criminal Appeals refused
discretionary review on January 15, 2026. App. B,
14a. Judge McClure noted that he would grant. Id. On
April 16, 2026, Justice Alito granted Petitioner’s
application to extend the time to file this petition to
and including April 30, 2026. This petition follows.
REASONS FOR GRANTING THE WRIT
This case presents an unusually clean opportunity to
correct a serious First Amendment error. Texas treats
some of the most common forms of modern speech—
emails, text messages, tweets, and social-media
posts—as categorically outside the First Amendment
when they are repeated and sent with a disfavored
intent. That position contradicts a long line of
decisions from this Court holding that the government
cannot evade strict scrutiny merely by relabeling
content-based regulations as regulations of “conduct.”
It conflicts with the way federal courts of appeals have
7
read materially indistinguishable statutes. And it is
now openly inconsistent with the Texas Court of
Criminal Appeals’ own recent decision in Owens v.
State. The petition should be granted for four reasons,
each independently sufficient.
III.
The Texas Court of Criminal Appeals has
abrogated First Amendment scrutiny of an
enormous category of speech through a
doctrinal innovation that conflicts with this
Court’s precedent.
This Court has repeatedly confirmed that the First
Amendment protects speech even when the speech is
annoying, embarrassing, or alarming; even when the
speaker intends to annoy, embarrass, or alarm; and
even when the government seeks to regulate only a
particular subset of such speech. See, e.g., Cohen, 403
U.S. at 16, 26; Hustler Magazine, 485 U.S. at 50, 55;
Snyder, 562 U.S. at 458; N.A.A.C.P. v. Claiborne
Hardware Co., 458 U.S. 886, 910 (1982); Int’l Soc’y for
Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 713
(1992) (Souter, J., concurring); Counterman v.
Colorado, 600 U.S. 66, 73–80 (2023). The Texas Court
of Criminal Appeals has departed from that bedrock
principle in a manner that cannot be reconciled with
this Court’s precedent.
Section 42.07(a)(7) punishes protected
speech based on its content.
Section 42.07(a)(7) regulates the content of speech in
two distinct and overlapping ways. First, it punishes
speech based on its function or effect, that is, its
likelihood of producing one of seven enumerated
emotional reactions. Second, it punishes speech based
8
on the speaker’s purpose: their intent to produce one
of those same reactions. Under Reed, regulations that
define the regulated speech “by particular subject
matter,” or by “its function or purpose,” are “content
based on [their] face” and are “presumptively
unconstitutional.” 576 U.S. at 163–64.
The Texas Court of Criminal Appeals has escaped
that conclusion through a lateral move found nowhere
in this Court’s First Amendment cases. It reasons that
because Section 42.07(a)(7) could, in theory, be
violated by the “sending of communications
containing no speech at all,” such as gibberish or
computer code, the entire statute regulates “nonspeech conduct.” Sanders, 663 S.W.3d at 215–16;
Barton, 662 S.W.3d at 884. Because the statute
regulates “non-speech conduct,” the court concludes,
it does not even “implicate” the First Amendment. Id.
While there is a veneer of logic to this, it is
inconsistent with this Court’s First Amendment
overbreadth jurisprudence as well as with the fact
that the vast majority of prosecutions, including the
one in this case, turn not on the manner in which the
electronic communications were sent but on their
explicit content.
As this Court recently reiterated, the overbreadth
doctrine exists to police statutes that regulate “a
substantial amount of protected speech relative to
[their] plainly legitimate sweep,” even when the
statute also reaches unprotected speech or non-speech
conduct. United States v. Hansen, 599 U.S. 762, 769–
70 (2023); United States v. Stevens, 559 U.S. 460, 473
(2010). The Barton/Sanders rule (that a statute
escapes First Amendment scrutiny altogether if it is
9
conceivable that it could be violated without speech)
stands that doctrine on its head. It would allow
legislatures to immunize content-based speech
restrictions by writing them to also cover some
imaginable species of non-expressive conduct.
The resulting rule is stunning in its breadth. On its
face, Section 42.07(a)(7) would reach:
• Repeated investigative journalism about a public
official calculated to embarrass him, as with the
reporting that ultimately drove Representative
Anthony Weiner from office. See Barton, 662
S.W.3d at 889 (Keller, P.J., dissenting).
• Repeated online criticism of a judge intended to
pressure her into granting relief, as in the Biblical
parable of the persistent widow. Id.
• A dissenting judicial opinion, circulated
electronically, intended to alarm the bar about the
majority’s reasoning. Id.
• Repeated emails to a government official
criticizing agency policy in terms the official finds
offensive. Cf. Ex parte Ogle, No. 03-18-00207-CR,
2018 WL 3637385, at *1 (Tex. App.—Austin Aug.
1, 2018, pet. ref’d).
• Repeated political tweets directed at a candidate
calling for her defeat in terms likely to alarm or
embarrass her.
• Repeated text messages to a former romantic
partner containing emotionally laden breakup
recriminations—the facts of this case.
10
Each of those examples describes core protected
speech. Each lies within the plain text of Section
42.07(a)(7). And each can be prosecuted in Texas
notwithstanding the First Amendment because the
court below has held that the First Amendment
simply does not apply.
The “implication” framework contradicts
this Court’s decisions in Counterman,
Stevens, Alvarez, and Reed.
The Texas court’s “implication” theory runs headlong
into four pillars of this Court’s modern First
Amendment jurisprudence.
In Counterman, this Court confronted a Colorado
statute
that
criminalized
repeated
“communication[s]” that “would cause a reasonable
person to suffer serious emotional distress.” 600 U.S.
at 70. The statute, like § 42.07(a)(7), reached
communicative conduct that the prosecuting
authorities believed caused emotional harm. This
Court did not suggest for a moment that the statute
regulated “non-speech conduct” or that the First
Amendment was unimplicated. Instead, the Court
held that even a statute targeting a historically
unprotected category (true threats) must incorporate
a “subjective mental-state requirement” to “provide[]
‘breathing space’ for protected speech.” Id. at 75
(quoting United States v. Alvarez, 567 U.S. 709, 733
(2012) (Breyer, J., concurring)). That holding is
inexplicable if the Texas court’s “implication” theory
is right, because on that theory the Colorado statute
in Counterman (like § 42.07(a)(7)) would not
“implicate” the First Amendment at all.
11
Second, Stevens squarely rejects the premise that a
legislature can create a new category of unprotected
speech by declaring certain intents or effects offlimits. 559 U.S. at 470–72. But that is what Texas has
done. The Texas Legislature has not declared any new
category of speech unprotected; the Texas Court of
Criminal Appeals has simply held that repeated
electronic communications with disfavored intent are
not speech at all. The result is exactly the ad hoc
category creation Stevens forbids.
Third, Alvarez held that even demonstrably false
statements—statements with objectively no social
value—enjoy First Amendment protection and cannot
be criminalized outside historically unprotected
categories. 567 U.S. at 717–22. If false statements
qualify as protected speech, it is inconceivable that
true statements uttered with the intent to embarrass
or annoy are somehow reclassified as non-speech.
Finally, in Reed, this Court held that a restriction is
content-based whenever it depends on “the function or
purpose” of the communication. 576 U.S. at 163–64.
Section 42.07(a)(7) depends on both. Its functionbased axis is the enumerated emotional reactions the
communication is reasonably likely to produce. Its
purpose-based axis is the enumerated reactions the
speaker intends. A prosecutor cannot evaluate either
axis without examining content.
None of this is new. More than four decades ago,
Justice White wrote in dissent from denial of
certiorari in Gormley v. Director, Connecticut State
Department of Adult Probation, that “speech may be
‘annoying’ without losing its First Amendment
12
protection.” 449 U.S. 1023, 1024 (1980). Justice Souter
concurred in Int’l Society for Krishna Consciousness,
that “[t]he First Amendment inevitably requires
people to put up with annoyance and uninvited
persuasion.” 505 U.S. at 713. The Court in N.A.A.C.P.
v. Claiborne Hardware rejected the proposition that
“[s]peech does not lose its protected character ...
simply because it may embarrass others.” 458 U.S. at
910. And in Snyder v. Phelps, the Court protected
speech uttered with undeniable intent to annoy,
harass, and alarm a grieving family. 562 U.S. at 458.
The Texas Court of Criminal Appeals has tried to
thread a needle that has no eye. It concedes that
Section 42.07(a)(7) applies to “traditional categories of
communication” like writings, images, and sounds,
Sanders, 663 S.W.3d at 215; but insists that such
applications do not trigger First Amendment scrutiny
so long as the statute also requires a prohibited intent
such as “annoy” or “alarm.” Id. at 215–16. That is, in
essence, a holding that the First Amendment is off
when the prosecutor declares the speaker’s mental
state distasteful. No decision of this Court supports
that proposition; every modern decision rejects it.
IV.
The Court of Criminal Appeals own decision
in Owens v. State has exposed Barton and
Sanders as doctrinally incoherent.
Between the Court of Appeals’ decision below and the
Texas Court of Criminal Appeals’ refusal of
discretionary review, something important happened.
On June 4, 2025, the Court of Criminal Appeals
decided Owens v. State, 728 S.W.3d 155 (Tex. Crim.
App. 2025). The majority opinion held that §
13
42.07(a)(7) was unconstitutional as applied to Owens
because—as the court itself put it—”[s]ending
messages is an act, but the messages themselves are
speech, and the prosecution in this case was based on
Appellant’s speech, not his action. It was the content
of the messages, not the manner of their sending, that
drove the prosecution.” Id. at 167.
That sentence is flatly irreconcilable with Barton and
Sanders. Those decisions rested on a single premise:
that “speech is not necessary for commission of the
offense,” that § 42.07(a)(7) therefore “proscribes nonspeech conduct,” and that as a result the statute “does
not implicate and does not violate the First
Amendment.” Barton, 662 S.W.3d at 883–84; Sanders,
663 S.W.3d at 215–16. Owens rests on exactly the
opposite premise: that a prosecution under §
42.07(a)(7) can turn on the content of the defendant’s
speech, triggering strict scrutiny. Owens, 728 S.W.3d
at 168–69.
Judge Yeary’s Owens dissent identified the problem
directly. “Today the Court declares that the same
statute was applied in such a way that it infringed
upon Appellant’s First Amendment free-speech
guarantee,” he observed. “Why? Because elements of
speech were, in fact, employed to commit the offense.
It seems to me that many, if not most, instances in
which the statutory provision will have been violated
will employ some elements of speech.” Owens, 728
S.W.3d at 181 (Yeary, J., dissenting). Judge Yeary is
right that the holdings cannot coexist. If speech “will
have been” employed in “most” prosecutions under the
statute—as Owens itself concedes and as every
common-sense reading of the statute confirms—then
14
the Barton/Sanders premise that the statute “does
not implicate the First Amendment” is simply false.
The result is a Texas Penal Code provision whose
constitutionality is now a mystery to the people it
governs, to the lower courts applying it, and to the
prosecutors enforcing it. Under Barton/Sanders, the
statute is categorically outside the First Amendment
and receives rational-basis review. Under Owens, the
statute is subject to strict scrutiny when its
application turns on the content of the
communications prosecuted—which is, as Judge
Yeary pointed out, most of the time. Those two
propositions cannot both be true.
The Court of Criminal Appeals’ refusal of
discretionary review in this case did not resolve that
contradiction. The only alternative path to resolution
runs through this Court. If Owens is right that §
42.07(a)(7) can regulate speech based on content, then
Barton and Sanders are wrong to hold that the statute
does not implicate the First Amendment at all. And if
Barton and Sanders are wrong on that fundamental
point, the statute must be evaluated under the
ordinary overbreadth doctrine, which, for the reasons
set out above, it cannot survive.
V.
The decision below deepens a conflict with
federal courts of appeals over how to
construe similarly worded harassment
statutes.
Texas is not the only jurisdiction that has enacted a
repeated-electronic-communication
harassment
statute in the last two decades. Nearly identical
statutes have been adopted by Congress and by sister
15
states, and federal courts of appeals have taken a
markedly different approach to the constitutional
questions those statutes raise.
The Third Circuit’s decision in United States v. Yung,
37 F.4th 70 (3d Cir. 2022), is illustrative. There, the
court construed 18 U.S.C. § 2261A(2)(B)—the federal
cyberstalking statute, which similarly punishes
repeated electronic communications with intent to
“harass” or “intimidate”—to apply only to “true
threats and speech integral to a crime.” Id. at 77–80.
The court reached that construction because, in its
view, a broader reading would render the statute
“facially overbroad” under the First Amendment. Id.
at 78. The First Circuit took the same approach in
United States v. Ackell, 907 F.3d 67, 76 (1st Cir. 2018),
reading “intimidation” as requiring a “true threat” in
order to “avoid a serious constitutional threat.”
The contrast with Texas is stark. Where the Third and
First Circuits recognized that repeated-electroniccommunication harassment statutes raise “serious”
First Amendment problems and read those statutes
narrowly to avoid them, Texas has held that its
materially identical statute does not raise any First
Amendment problem at all. Same statutory
architecture; opposite constitutional result.
That kind of conflict is cert-worthy on its own terms.
See Sup. Ct. R. 10(b), (c). But the conflict here is worse
than a simple split of authority. The federal courts of
appeals have undertaken to avoid an overbreadth
problem by narrowly construing the statutory terms.
The Texas court has declined to do any such
narrowing, because on its view no constitutional
16
problem exists to begin with. The practical
consequence is that speech that is categorically
protected in the Third Circuit is punishable by up to a
year in jail in Texas. The Constitution should not
mean such different things in the Lone Star State and
in Pennsylvania.
Nor is this a hypothetical concern. In 2017, Texas
materially expanded the definition of “electronic
communication” to include “a transfer of signs,
signals, writing, images, sounds, data, or intelligence
… transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic, or photo-optical
system,” a formulation that reaches virtually every
digital utterance. Tex. Penal Code § 42.07(b)(1). The
Houston Fourteenth Court of Appeals has since held
that the 2017 expansion does not disturb the
Barton/Sanders framework. Ex parte Ordonez, 693
S.W.3d 419, 424 (Tex. App.—Houston [14th Dist.]
2023, no pet.). The combination of sweeping statutory
reach plus an interpretive rule that excludes such
prosecutions from First Amendment review is a recipe
for systemic overbreadth.
Despite this Court’s ruling in Reno and its progeny
that the First Amendment applies fully to online
speech, courts have struggled to apply First
Amendmen principles to disfavored speech posted
online or sent through electornic means such as social
media in two main ways: first, courts have reached
different conclusions about whether the First
Amendment applies to online harassment statutes
suc as Sec. 42.07(a)(7); and second, courts subjecting
these laws to First Amendment scrutiny have differed
17
regarding wehther and when
constitutionally overbroad.
such
laws
are
This court has recognized that it is “intolerable to
leave unanswered” and in “uneasy and unsettled
contitutional postrue” questions concerning First
Amendment protections. Miami Herald Pub. Co. v.
Tornillo, 418 U.S. 241, 247 n.6 (1974). The conflicting
decisions of state courts of last resort and the federal
circuits concerning harassment laws targeting online
speech threaten to do just that. This Court should
clarify the issue before more courts tread down the
erroneous path blazed by Texas, endangering free
expression in the “vast democratic forums of the
Internet.” Packingham v. North Carolina, 582 U.S.
98, 105 (2017) (quoting Reno v. ACLU, 521 U.S. 844,
868 (1997)).
In Barton and Sanders, Texas joined a minority of
courts in concluding that laws targeting electronic or
telephonic communications made with a disfavored
intent are exempt from First Amendment scrutiny
because they regulate non-communicative conduct.
Many of these courts found the laws’ intent
requirements central to that rationale even when the
law applied, as here, to speech of public concern.
A minority of courts hold that laws
criminalizing electronic or telephonic
communications made with a disfavored
intent raise no First Amendment issue.
For instance, in Thorne 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
18
“prohibits conduct and not protected speech.” 846 F.2d
241, 242 n.1, 243 (4th Cir. 1988). In so holding, the
court accepted the West Virginia Supreme Court’s
analysis of the same statute, over a dissent that
understood Falwell to hold that “[s]peech does not lose
its protected character,” simply because one “intends
to distress.” Id. at 247 (Butzner, J., dissenting). See
also State v. Thorne, 333 S.E.2d 817, 819-20 (W. Va.
1985); accord State v. Calvert, No. 15-0195, 2016 WL
3179968, at *4 (W. Va. June 3, 2016).
Similarly, in Gormley v. Director, Connecticut State
Department of Probation, the Second Circuit
construed a law criminalizing phoning 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).
The Ninth Circuit has twice concluded that electronic
communication and telephone harassment statutes do
not implicate the First Amendment. In United States
v. Osinger, 753 F.3d 939 (9th Cir. 2014), the court
upheld a prior version of the federal cyberstalking
statute, which at the time prohibited using an
interactive computer service to engage in a “course of
conduct” causing substantial emotional distress with
the intent to “kill, injure, harass, or place under
surveillance with intent to kill, injure, harass, or
intimidate, or cause substantial emotional distress.”
18 U.S.C. § 2261A(2)(A). The court held that the law
targeted a course of “harassing and intimidating
conduct” rather than speech. 753 F.3d 939, 944 (9th
Cir. 2014). And in United States v. Waggy, the Ninth
Circuit reached an analogous holding in concluding
19
that a Washington telephonic harassment statute
“regulates nonexpressive conduct and does not
implicate First Amendment concerns,” even where the
incriminating telephone call “included some criticism”
of the government.” 936 F.3d 1014, 1019 (9th Cir.
2019).
Some state courts of last resort have adopted a similar
approach. For instance, 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-protected conduct,” even
where the defendant’s calls “contained political
speech.” 724 A.2d 315, 317-18 (Pa. 1999); see also
Thorne, 333 S.E.2d at 819-20.
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. §
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. 20-10283, 2021 WL
6116629, at *2 (9th Cir. Dec. 27, 2021) (quoting Watts
v. United States, 394 U.S. 705, 707 (1969)).
20
Most courts hold the opposite, but not all
have granted relief under the overbreadth
doctrine.
A large majority of Courts have feld to the contrary
the First Amendment is implicated by laws
criminalizing electronic or telephonic communications
made with a disfavored intent. Many 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 the question and come to the same
conclusion.
Most recently, in United States v. Yung, the Third
Circuit rejected the argument that the current version
of 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).
Similarly to the Texas law, the federal statute
criminalizes sending electronic communications with
the intent to “harass [or] intimidate.” 18 U.S.C. §
2261A(2)(A). See also Matter of Welfare of A.J.B., 929
N.W.2d 840, 849 (Minn. 2019) (holding that a stalking
statute that reached, inter alia, electronic
communications that made one feel “frightened,
threatened, oppressed, persecuted, or intimidated,”
sanctioned “purely expressive” communications and
not just conduct).
21
While these courts agree that electronic harassment
statutes like § 42.07(a)(7) regulate speech, they
diverge on the proper First Amendment analysis to
apply. Most courts recognize the overbreadth
problems inherent in such laws and respond by
invalidating them, narrowly construing them, or
severing problematic parts. But at least one state high
court has flatly rejected an overbreadth challenge to
an electronic harassment law on the merits.
Finding overbreadth. Three state high courts have
held
electronic
harassment
statutes
unconstitutionally overbroad. The New York Court of
Appeals
invalidated
a
statute
proscribing
communication “with intent to harass, annoy,
threaten, or alarm” “in a manner likely to cause
annoyance or alarm.” People v. Golb, 15 N.E.3d 805,
810, 813 (N.Y. 2014). The Minnesota Supreme Court
struck down a stalking law proscribing electronic
communications causing someone to feel “frightened,
threatened, oppressed, persecuted, or intimidated.”
Matter of Welfare of A.J.B., 929 N.W.2d at 852-53. The
same court severed “disturb, or cause distress” from a
different harassment law that proscribed the
electronic and physical “mail[ing] . . . of letters” with
“the intent to abuse, disturb, or cause distress.” Id. at
857, 862-63.1 And the Colorado Supreme Court
severed part of a statute prohibiting electronic
communications sent with the “intent to harass,
1 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).
22
annoy or alarm,” leaving only those parts that
proscribed “true threats and obscenity.” People v.
Moreno, 506 P.3d 849, 855-57 (Colo. 2022). The court
found the statute to apply to huge swaths of “protected
communications, including forecasting a storm or
engaging in political discourse.” Id. at 854.
Likewise, four federal courts of appeal have found
that the federal cyberstalking statute would
beoverbroad on a plain-language reading, but upheld
it by narrowly construing its terms to apply only to
categorically unprotected speech. This law is identical
to the prior version except that one can violate it with
an intent to “intimidate” and through conduct
“reasonably expected to cause” emotional distress. 18
U.S.C. § 2261A(2). See Yung, 37 F.4th at 76
(comparing versions). Along with the First, Third, and
Eleventh Circuits, the Eighth Circuit has construed
the law narrowly to apply only to categories of
unprotected speech. The Eighth Circuit concluded
that the law was unconstitutional as applied to a
defendant who repeatedly sent offensive emails to a
political campaign email address that urged the
candidate to “bow out of the race.” United States v.
Sryniawski, 48 F.4th 583, 585, 589 (8th Cir. 2022); see
also Yung, 37 F.4th at 77, 78-81 (construing the law
to capture only “true threats” and speech “integral to
crime” to avoid a “colli[sion] with the First
Amendment”); United States v. Ackell, 907 F.3d 67, 76
(1st Cir. 2018) (construing “intimidation” as a “true
threat” to “avoid [the] serious constitutional threat”
that the statute would forbid “speech on a matter of
public concern”) (cleaned up); United States v. Fleury,
23
20 F.4th 1353, 1363 (11th Cir. 2021) (finding Ackell’s
overbreadth analysis “particularly persuasive”).
Rejecting overbreadth. Charting a different path, the
Supreme Court of Montana recognized the First
Amendment implications of an electronic harassment
statute but upheld it against an overbreadth
challenge without narrowing or severing it. 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). 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.” Id. 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).
Without guidance from this Court, the existing
disagreements about whether the First Amendment is
implicated by laws like § 42.07(a)(7) and, if so, how an
overbreadth analysis should apply will only grow and
further exacerbate the differing treatment of online
speech by citizens of differing states. In New York, an
atheist may freely tweet at a Christian in a
deliberately alarming manner. But how a Christian
may respond depends on where they live. If in New
York, they may fight fire with fire. If in Texas, they
must turn the other cheek.
24
VI.
This case is an ideal vehicle: the earlier
ripeness objection is gone, and the question
is outcome-determinative.
This Court denied certiorari in the prior § 42.07(a)(7)
cases—Barton, Sanders, and Moore—each of which
came up from a pretrial denial of habeas relief. See
Moore v. Texas, 143 S. Ct. 776 (2023) (mem.); Barton
v. Texas, 143 S. Ct. 774 (2023) (mem.); Sanders v.
Texas, 143 S. Ct. 774 (2023) (mem.). In each of those
cases, the State argued to this Court that the question
was not ripe because there had been no conviction,
only a trial-court denial of interlocutory habeas relief
followed by appellate affirmance. That objection,
whatever its merits, is unavailable here.
Petitioner pled no contest to the single charged
offense. The trial court imposed a twelve-month
deferred adjudication. App. D, 17a–27a. The trial
court certified Petitioner’s right to appeal the
constitutional question. App. E, 28a–30a. The Court
of Appeals for the Third District of Texas reviewed
that question on direct appeal from the order of
deferred adjudication, fully briefed and argued, and
resolved the question on the merits. App. A, 1a–13a.
The Texas Court of Criminal Appeals refused
discretionary review. App. B, 14a. The question is
final in the Texas courts. 28 U.S.C. § 1257(a).
The question is also outcome-determinative.
Petitioner’s conviction rests solely on the validity of §
42.07(a)(7). If the statute is facially unconstitutional,
the prosecution must be dismissed. There are no
antecedent state-law questions, no ancillary factual
disputes, no procedural complications. This is the
25
clean vehicle the Barton, Sanders, and Moore
petitioners lacked.
It is also the right time. The question presented is now
squarely fit for decision. Counterman has made clear
that content-based restrictions on electronic
communications remain content-based restrictions,
and that statutes reaching speech require a subjective
mental-state analysis. Counterman, 600 U.S. at 73–
80. The Texas Legislature has signaled its own
understanding that § 42.07(a)(7) restricts speech by
writing a public-concern carve-out into subsection
(a)(8). And the Texas Court of Criminal Appeals has
acknowledged in Owens that § 42.07(a)(7) can
regulate speech, even as it clings to its contrary facialchallenge precedents. The predicate doctrinal
developments that justified earlier denials have all
run their course.
Finally, the stakes extend well beyond Petitioner. The
Texas Court of Criminal Appeals issues guidance for
a state of thirty million people and an indeterminate
number of others who post, tweet, email, or text into
Texas from elsewhere. Under current Texas law,
every one of those communicators is on notice that a
repeated digital message calculated to “annoy” or
“embarrass” a Texan is a criminal offense, with no
First Amendment safety net. That is a consequential
rule of law, and it is wrong.
CONCLUSION
The petition for a writ of certiorari should be granted.
26
Respectfully submitted,
Mark W. Bennett
Institute for Advanced
Criminal Law Studies
917 Franklin Street
Fourth Floor
Houston, Texas 77002
(713) 224-1747
mb@iacls.org
Lane A. Haygood
Counsel of Record
Haygood Law Firm
620 N. Grant Ave.
Suite 913
Odessa, Texas 79761
(432) 279-0411
lane@haygoodlawfirm.com
Counsel for Petitioner
Dated: April __, 2026
APPENDIX
1a
Appendix A
Memorandum Opinion of the Court of Appeals for
the Third District of Texas
Filed June 27, 2025
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
Chari L. Kelly, Justice
Before Justices Triana, Kelly, and Crump
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
2a
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:2
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.
See Ex parte Lowry, 693 S.W.3d 388, 391 (Tex. Crim.
App. 2024) (doing same).
3a
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, 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.
4a
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. United States v.
Stevens, 559 U.S. 460, 468 (2010). However, there are
some “well-defined and narrowly limited classes of
speech” that have been recognized as falling outside
the protection of the First Amendment. Id. at 468–72.
These include child pornography, obscenity,
defamation, fighting words, incitement, true threats
of violence, fraud, and speech integral to criminal
conduct. Id. Speech not within one of these narrowly
defined categories is protected under the First
Amendment, even if a legislature “concludes certain
speech is too harmful to be tolerated.” Brown v.
Entertainment Merchs. Ass’n, 564 U.S. 786, 791 (2011)
(“new categories of unprotected speech may not be
5a
added to the list by a legislature that concludes
certain speech is too harmful to be tolerated”). Such
restrictions
of
speech
are
presumptively
unconstitutional and may be justified only if the
government proves that they are narrowly tailored to
serve compelling state interests. Reed v. Town of
Gilbert, Ariz., 576 U.S. 155, 163 (2015). But even if a
law restricting speech were to satisfy strict scrutiny,
it may still be facially overbroad in violation of the
First Amendment. Stevens, 559 U.S. at 472–73; Ex
parte Nuncio, 662 S.W.3d 903, 920 (Tex. Crim. App.
2022). In the First Amendment context, a court may
invalidate a law as overbroad if a substantial number
of its applications are unconstitutional, judged in
relation to the statute’s plainly legitimate sweep.
Stevens, 559 U.S. at 473.
“An overbreadth challenge is unusual.” Hansen, 599
U.S. at 769. “For one thing, litigants have standing to
assert the constitutional rights of third parties.” Id.
“For another, litigants do not have to establish that no
set of circumstances exists under which the statute
would be valid.” Id. Instead, the “overbreadth doctrine
instructs a court to hold a statute facially
unconstitutional even though it has lawful
applications, and even at the behest of someone to
whom the statute can be lawfully applied.” Id.
The Supreme Court has “justified this doctrine on the
ground that it provides breathing room for free
expression.” Id. “Overbroad laws may deter or chill
constitutionally protected speech, and if would-be
speakers remain silent, society will lose their
contributions to the marketplace of ideas.” Id. at 769–
70 (cleaned up). “To guard against those harms, the
overbreadth doctrine allows a litigant (even an
6a
undeserving one) to vindicate the rights of the
silenced, as well as society’s broader interest in
hearing them speak.” Id. at 770. “If the challenger
demonstrates that the statute prohibits a substantial
amount of protected speech relative to its plainly
legitimate sweep, then society’s interest in free
expression outweighs its interest in the statute’s
lawful applications, and a court will hold the law
facially invalid.” Id. (cleaned up). “Because it destroys
some good along with the bad, invalidation for
overbreadth is strong medicine that is not to be
casually employed.” Id. (cleaned up). “To justify facial
invalidation, a law’s unconstitutional applications
must be realistic, not fanciful, and their number must
be substantially disproportionate to the statute’s
lawful sweep.” Id. “In the absence of a lopsided ratio,
courts must handle unconstitutional applications as
they usually do—case-by-case.” Id.3
In Owens v. State, 728 S.W.3d 155 (Tex. Crim. App.
2025), the court found section 42.07(a)(7)
unconstitutional as applied to Owens, who had been
convicted of harassment for sending thirty-four
communications to his former therapist. He had sent
the messages via her publicly accessible commercial
accounts and done so over a three-month period. Id. at
167–68. The court specifically noted that in Barton
and Sanders, it had upheld the facial constitutionality
of the statute on the grounds that it prohibits nonspeech conduct, and stated, “The question before us
now is narrower: was the statute unconstitutional as
it was applied to [Owens]?” Id. at *163. The Court
concluded that it was. Id. at 169. The State had
cont.
7a
Whether a statute is facially constitutional is a
question of law we review de novo. Ex parte Lowry,
693 S.W.3d 388, 406 (Tex. Crim. App. 2024).
Application
The statute at issue reads: “A person commits an
offense if, with intent to harass, annoy, alarm, abuse,
torment, or embarrass another, the person … sends
repeated electronic communications in a manner
reasonably likely to harass, annoy, alarm, abuse,
torment, embarrass, or offend another.” Tex. Penal
Code § 42.07(a)(7). The statute defines “electronic
communication” as “a transfer of signs, signals,
writing, images, sounds, data, or intelligence of any
nature transmitted in whole or in part by a wire,
radio, electromagnetic, photoelectronic, or photooptical system” and states the term includes:
“communication initiated by electronic mail, instant
message, network call, or facsimile machine” and “a
communication made to a pager.” Id. §
42.07(b)(1)(A)(B). In Scott v. State, the Court of
Criminal Appeals upheld another, and nearly
identical, subsection of the harassment statute,
section 42.07(a)(4), against a First Amendment
overbreadth challenge—finding that the subsection
targets noncommunicative conduct. 322 S.W.3d 662,
670 (Tex. Crim. App. 2010), abrogated by Wilson v.
prosecuted Owens based on the content of his speech
in circumstances where (1) “there was no invasion to
the home”; (2) no “captive audience”; and (3) no
“invasion of substantial privacy rights in an
essentially intolerable manner.” Id. at 167.
Earl has not raised an as-applied challenge here.
8a
State, 448 S.W.3d 418 (Tex. Crim. App. 2014). That
subsection provides, “(a) A person commits an offense
if, with intent to harass, annoy, alarm, abuse,
torment, or embarrass another, the person … causes
the telephone of another to ring repeatedly or makes
repeated telephone communications anonymously or
in a manner reasonably likely to harass, annoy,
alarm, abuse, torment, embarrass, or offend another.”
Tex. Penal Code § 42.07(a)(4). The Court noted the
text requires that the actor intend to inflict emotional
distress and to act in a manner likely to do so but does
not require that the actor use spoken words at all. Id.
at 670. The Court held that to the extent that it
applies
to
communicative
conduct,
that
communicative conduct is not protected by the First
Amendment because it invades the substantial
privacy interests of the recipient in an essentially
intolerable manner. Id. Finding the statute regulates
non-speech conduct, the Court overruled the
overbreadth challenge. Id.
In 2020, this Court upheld section 42.07(a)(7) against
an overbreadth challenge, relying on Scott, and two
prior unpublished opinions from this court. Ex parte
McDonald, 606 S.W.3d 856, 860 (Tex. App.—Austin
2020, pet. ref’d). And in Barton and Sanders, the
Court of Criminal Appeals relied on Scott to do the
same thing, reasoning:
• the gravamen of the section 42.07(a)(7) offense
is the sending of repeated electronic communications
in a manner reasonably likely to harass, annoy,
alarm, abuse, torment, embarrass, or offend another;
• speech is not necessary for commission of the
offense; the statute is equally violated by the repeated
sending of communications containing expressive
9a
speech as it is by the repeated sending
communications containing no speech at all;
of
• even accepting that a person who violates
section 42.07(a)(7) 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 protective
expressive conduct; the First Amendment affords no
protection to communicative conduct whereby one
individual invades the substantial privacy interests of
another in an essentially intolerable manner;
• because the statute proscribes non-speech
conduct, it does not implicate the protections of the
First Amendment, although elements of speech may
be employed to commit the offense; and
• on its face, section 42.07(a)(7) does not implicate
and does not violate the First Amendment of the
United States Constitution.
Barton, 662 S.W.3d at 883–84; Sanders, 663 S.W.3d
at 215–16.4
The applicable version of the statute is the 2017
version. Act of May 26, 2017, 85th Leg., R.S., ch. 522,
§§ 13, 14, 2017 Tex. Gen. Laws 1400, 1407. Although
the Texas Legislature has twice amended the statute
since then, this subsection has not changed. Act of
May 12, 2021, 87th Leg., R.S., ch. 178, § 1, 2021 Tex.
Gen. Laws 385, 386; Act of May 24, 2023, 88th Leg.,
R.S., ch. 839, § 7, 2023 Tex. Gen. Laws 2614, 2619; Act
of May 18, 2023, 88th Leg., R.S., ch. 1118, § 1, 2023
Tex. Gen. Laws 3472, 3473. The versions of the subcont.
10a
Earl argues that Presiding Judge Keller got it right
because the statute encompasses a truly enormous
amount of speech and statements made with a
disfavored harassing intent are still protected unless
they fall into a historically recognized category of
unprotected speech. But we are bound by Barton,
Sanders,5 and McDonald. Texas courts follow vertical
stare decisis (lower courts must follow the precedents
of all higher courts) and horizontal stare decisis
(three-judge
panels
must
follow
materially
statute at issue in the Barton (2001) and Sanders
(2013) cases were virtually identical to the 2017
versions. Act of May 26, 2001, 77th Leg., R.S., ch.
1222, § 1, 2001 Tex. Gen. Laws 2795, 2796; Act of May
24, 2013, 83rd Leg., R.S., ch. 1278, § 1, 2013 Tex. Gen.
Laws. 3231, 3231. But the definition of “electronic
communication” was narrower. It was defined as “a
transfer of signs, signals, writing, images, sounds,
data, or intelligence of any nature transmitted in
whole or in part by a wire, radio, electromagnetic,
photoelectronic, or photo-optical system” and to
include “a communication initiated by electronic mail,
instant message, network call, or facsimile machine”
and “a communication made to a pager.” Act of May
26, 2001, 77th Leg., R.S., ch. 1222, § 1, 2001 Tex. Gen.
Laws 2795, 2796; Act of May 24, 2013, 83rd Leg., R.S.,
ch. 1278, § 1, 2013 Tex. Gen. Laws. 3231, 3231.
The Supreme Court of the United States denied
certiorari in both cases. Barton v. Texas and Sanders
v. Texas, 143 S. Ct. 774 (2023). Earl states that this
case is uniquely ripe for the grant of certiorari, unlike
Barton and Sanders—which were appeals from
rulings on pre-trial applications alone.
11a
indistinguishable decisions of earlier panels of the
same court unless a higher authority has superseded
that prior decision). Mitschke v. Borromeo, 645 S.W.3d
251, 256 (Tex. 2022).
Earl argues Barton and Sanders are undermined by a
line of cases from the United States Supreme Court—
most recently Counterman v. Colorado. In
Counterman, the Court held that the First
Amendment requires that the State must prove, in a
true-threats case, that the defendant was aware that
others could regard his statements as threatening and
delivers them anyway. 600 U.S. at 73, 79–80. The
Court acknowledged that such a standard will
necessarily impede some true-threat prosecutions of
morally culpable defendants. Id. at 80. But the Court
explained that the imposition of a subjective mens rea
of recklessness is necessary to account for true threat
prosecutions’ chilling effects. Id.
Houston’s Fourteenth Court of Appeals rejected the
argument that Counterman has any effect on Barton
or Sanders because it is a “true threats” case and did
not “specifically examine whether the sending of
repeated electronic communications in a manner
reasonably likely to harass, annoy, alarm, abuse,
torment, embarrass, or offend another was
noncommunicative[.]” Ex parte Ordonez, 693 S.W.3d
419, 424 (Tex. App.—Houston [14th Dist.] 2023, no
pet.) (rejecting argument that 2017 expansion of
definition of electronic communication effects holding
in Barton and Sanders that the electronic harassment
statute does not implicate First Amendment because
gravamen of offense itself did not change).
But even if we were to agree that Counterman, and
cases before it, cut against the Court of Criminal
12a
Appeals’ determination that section 42.07(a)(7) does
not implicate the First Amendment, that
determination by the higher court still stands, and we
remain bound to follow it.
Next, Earl notes that the Texas Legislature added to
section 42.07(a) another means of committing
harassment: “A person commits an offense if, with
intent to harass, annoy, alarm, abuse, torment, or
embarrass another … the person publishes on an
Internet website, including a social media platform,
repeated electronic communications in a manner
reasonably likely to cause emotional distress, abuse,
or torment to another person, unless the
communications are made in connection with a matter
of public concern.” Tex. Pen. Code § 42.07(a)(8); Act of
May 12, 2021, 87th Leg., R.S., ch. 178, § 1, 2021 Tex.
Gen. Laws 385, 386. Earl notes that the Legislature’s
attempt to limit the forbidden speech based on its
content, is proof the Legislature recognized that the
statute restricts speech based on its content, and
attempted to avoid constitutionality concerns by
limiting its application to matters of public concern.
That may be so, but the Legislature did not
simultaneously remove or amend subsection
42.07(a)(7). Cf., Texas Mut. Ins. v. Laird, 706 S.W.3d
421, 425 (Tex. App.—Austin 2024, no pet.) (stare
decisis not applicable because Texas Legislature
removed statutory language essential to prior panel’s
interpretation of statute).
We conclude we are bound by the decisions of the
Court of Criminal Appeals and this Court. Mitschke,
645 S.W.3d at 256; see Lost Pines Groundwater
Conservation Dist. v. Lower Colorado River Auth., No.
03-23-00303-CV, 2024 WL 3207472, at *5 (Tex. App.—
13a
Austin June 28, 2024, pet. filed) (mem. op.) (absent
decision from higher court or this court sitting en banc
that is on point and contrary to prior panel decision or
intervening and material change in statutory law, this
court is bound by prior holding of another panel of this
court).
CONCLUSION
We overrule Earl’s sole issue and affirm the judgment
of the trial court.
_________________________
_______________
Chari L. Kelly, Justice
Before Justices Triana, Kelly, and Crump
Affirmed
Filed: June 27, 2025
Do Not Publish
14a
Appendix B
OFFICIAL NOTICE FROM COURT OF
CRIMINAL APPEALS OF TEXAS
P.O. BOX 12308, CAPITOL STATION,
AUSTIN, TEXAS 78711
FILE COPY
1/15/2026
COA No. 03-23-00427-CR
EARL, JAMES RYAN
Tr. Ct. No. C-1-CR-18-501959
PD-0519-25
On this day, the Appellant’s petition for discretionary
review has been refused.
JUDGE MCCLURE WOULD GRANT
Deana Williamson, Clerk
LANE HAYGOOD
ATTORNEY AT LAW
620 N GRANT AVE SUITE
913
ODESSA, TX 79761
* DELIVERED VIA EMAIL *
15a
Appendix C
Order Denying Pretrial Application for Writ of
Habeas Corpus and Motion to Quash, County Court
at Law No. 4 of Travis County, Texas
Signed August 8, 2022
CAUSE No. C-1-CR-18-501959
THE STATE OF TEXAS
v.
JAMES EARL
IN THE COUNTY COURT
AT LAW NUMBER 4
TRAVIS COUNTY, TEXAS
ORDER
On this the 8th day of August 2022, the Court
adopts the State’s Proposed Findings of Fact and
Conclusions of Law and finds that the relief James
Earl (“Defendant”) requests in his companion Pretrial
Application for Writ of Habeas Corpus and Motion to
Quash be denied.
IT IS HEREBY ORDERED that Defendant’s
Pretrial Application for Writ of Habeas Corpus is
DENIED.
IT IS FURTHER ORDERED that Defendant’s
Motion to Quash is DENIED.
16a
IT IS FINALLY ORDERED that the State’s
Proposed Findings of Fact and Conclusions of Law are
ADOPTED by this Court.
SIGNED on the 8th day of August, 2022.
/s/ Dimple Malhotra
Honorable Dimple
Malhotra
Judge Presiding
17a
Appendix D
Order of Deferred Adjudication, County Court at
Law No. 4 of Travis County, Texas
Signed July 6, 2023
CAUSE NO. C-1-CR-18-501959
OFFENSE DATE: 12/19/18
THE STATE OF TEXAS
vs.
JAMES EARL
IN THE COUNTY COURT AT LAW NO. 4
TRAVIS COUNTY, TEXAS
DEGREE: CLASS A MISDEMEANOR
DEFERRAL OF ADJUDICATION OF GUILT
AND SUPERVISION ORDER
On the 6th day of July, 2023, the Defendant having
been charged in the above cause for the misdemeanor
offense of harassment, and this cause being called for
trial, the State appeared by her County Attorney and
the Defendant appeared in person and by counsel;
both parties announced ready for trial. The said
Defendant elected to proceed under Article 42.12 §
3d(a) of the Texas Code of Criminal Procedure and in
open court, no jury having been demanded, the
Defendant waived arraignment and formal reading of
18a
the information and pleaded nolo contendere to the
said charge.
On the 6th day of July, 2023, and after considering
said plea and arguments of counsel, the Court finds
the best interests of society and of the Defendant
would be served by deferring proceedings without
entering an adjudication of guilt and by placing the
Defendant on supervision in this cause.
IT IS THEREFORE CONSIDERED, ORDERED,
AND ADJUDGED that the proceedings be and are
hereby deferred without an adjudication of guilt
thereon, and that said Defendant be, and is hereby
placed on supervision in this cause for a period of one
year from this date, on the following terms and
conditions, to-wit:
(1) Commit no offense against the laws of this or
any State or of the United States.
(2) Avoid injurious or vicious habits.
(3) Avoid the use of all narcotics, habit forming
drugs, alcoholic beverages, and controlled substances.
(4) Report to the supervision officer as directed by
the judge or the supervision officer or by mail as
reported and obey all orders of the Court and the rules
and regulations of the Community Supervision and
Corrections Department.
(5) Refrain from disorderly conduct, abusive
language, or disturbing the peace while present at the
office of the Department.
(6) Permit the Supervision Officer to visit you at
your home or elsewhere.
(7) Work faithfully at suitable employment as far
as possible.
19a
(8) Do not change residence without permission
and report changes of employment to supervision
officer as directed.
(9) Remain within Travis County unless given
permission to depart by the Supervision Officer.
(10) While on community supervision, you must
have on your person at all times a current, valid Texas
Department of Public Safety photo identification card
or a valid Texas Department of Public Safety photo
driver’s license. You must obtain this photo
identification within thirty (30) days of the date of
your community supervision.
(11) Support your dependents.
(12) Submit urine/breath/saliva specimen at the
direction of the Supervision Officer or randomly and
pay all costs if required.
(13)
Pay to and through the Centralized
Collections of the Travis County Tax Office, in one
lump sum or in installments, as set forth in the
collection schedule, the following: a. Court Costs
$TBD; b. Fine $___; c. Attorney Fees $___. Pay to and
through the Community Supervision and Corrections
Department of Travis County, Texas, in one lump sum
or in installments, as set forth in the collection
schedule: d. Supervision Monthly Reimbursement Fee
of $60.00; e. Restitution $___ to ___.
(14) Do not operate a motor vehicle without a valid
Texas Driver’s License and proof of automobile
liability insurance.
(15) Surrender your driver’s license for a term of
___.
20a
ADDITIONAL CONDITIONS OF COMMUNITY
SUPERVISION
(16) Participate in, and comply with the rules of
the following program(s) [not selected].
(17) Complete ___ hours of Community Service
Restitution at a place approved and designated by the
Community
Supervision
and
Corrections
Department.
(18) Report to, cooperate with, and participate in
all programs (until successfully discharged), and pay
all costs for the following classes and services
[checked: m. Other as determined by the Supervising
Officer].
(19) Report to the supervision office for an
evaluation for the following programs or services and
follow the recommendations and pay costs incurred
while
in
the
program
[checked:
b.
Counseling/Treatment designated by the Supervision
Officer].
(20) Assigned to the following specialized unit
until the level of supervision is changed by the court
and/or Supervision Officer and follow the department
guidelines for the caseload [not selected].
(21) Register with and remain registered with the
Travis County Domestic Relations Office, if ordered
by the Court and/or your Community Supervision
Officer.
(22) Serve ___ days in the Travis County Jail, on
or
before
___;
straight
time/work
release/weekends/credit
for
back
time/SWAP
Program.
21a
(23) Do not open or maintain a checking account
until approved, in writing, by the Court and/or your
Supervision Officer.
(24) Have no contact with [A.S.], either in writing,
in person, by phone, electronically or through third
parties and stay 200 yards from where they live, work
or any place they may be.
(25)
Have no threatening or harassing
communication/contact with [not selected].
(26) Show proof of a high school diploma within
ninety (90) days or obtain GED within ___ year(s).
(27) Have no contact with gangs or gang members
during term of community supervision.
(28) Pursuant to Texas Government Code Sec.
411.072 case could be applicable.
(29) Do not possess any firearms/weapons while
on community supervision.
(30) Do not refuse breath or blood tests when
requested by any law enforcement officer.
(31) Provide documentation of income/expenses to
the community supervision officer/complete Financial
Study.
You are hereby advised that under the law of this
State, the Court shall determine the terms and
conditions of your community supervision and may at
any time during the period of community supervision,
alter or modify the conditions of your community
supervision. The Court also has the authority at any
time during the period of your community supervision
22a
to revoke your community supervision for violation of
any of the conditions set out above.
Date of Sentence: July 6, 2023
Judge Presiding
Honorable Dimple
Malhotra
Defendant
Community Supervision
Officer
PLEA AGREEMENT
Comes now the State of Texas and the Defendant,
having discussed the merits of the case and entered
into a negotiated plea bargain. The parties agree that
the interests of justice will be served by and pray the
Court to accept the following agreement for the
disposition of the aforementioned case.
Defendant:
requirement.
deferred
adjudication;
no
SOR
JURY WAIVER AND PLEA AGREEMENT
I am the defendant accused in this case. I have
talked to my lawyer about my case. In open Court I
make the following voluntary statement:
23a
• I am the person charged.
• I am mentally competent and I understand the
nature of the charges against me.
• I am aware that any plea bargaining agreement
among the State, myself, and my attorney is not
binding on the court.
• I understand that I have a right to have a jury
decide whether I am guilty and what my punishment
should be, whether I plead guilty, not guilty, or nolo
contendere, and I hereby give up this right.
• I have the right to be confronted with the
witnesses against me.
• I have the right to remain silent. If I choose to
speak, anything I say can be used against me.
• My attorney has communicated the State’s plea
offer of deferred adjudication, one year probation,
with no SOR requirement, court costs and an
additional class discussed to me and I accept it.
PLEA OF GUILTY OR NO CONTEST,
ADMONISHMENTS, VOLUNTARY
STATEMENTS, WAIVERS, AND
STIPULATIONS
I. ADMONISHMENTS. You are admonished in
writing that: Class A Misdemeanor.
1. Charge: You are pleading NO CONTEST to the
charged offense described above.
2. Punishment Range: The range of punishment
for the charged and/or plea-bargained offense is:
CLASS A MISDEMEANOR: Confinement in jail for a
24a
term not to exceed one year, a fine not to exceed
$4,000, or both such fine and confinement.
3. Plea Agreement: The prosecutor’s punishment
recommendation is not binding on the Court. If a plea
agreement exists, the Court will inform you in open
court before making any finding on your plea whether
it will follow the plea agreement.
4. Un-negotiated Plea: If there is not a plea
agreement, then all non-jurisdictional defects are
waived, and you have no right to appeal except for
jurisdictional matters. If you are convicted in a nonnegotiated plea you have the right to appeal
jurisdictional matters to the appropriate Court of
Appeals of Texas, and the right to be represented on
appeal by an attorney, but if you cannot afford to pay
for such, the court will, without expense to you,
provide an attorney and a proper record for such an
appeal.
5. Negotiated Plea & Appeal: If the punishment
assessed does not exceed the punishment
recommended by the prosecutor and agreed to by you
and your attorney, you must receive the Court’s
permission before you may appeal any matter except
matters raised by written motion(s) filed prior to trial.
6. Citizenship: If you are not a citizen of the United
States of America or you do not have lawful
immigration status, you should tell your lawyer. A
plea of guilty or no contest, regardless of findings of
guilt or innocence, may result in detention, removal,
deportation, exclusion from the United States, or
denial of naturalization/citizenship or other
immigration benefits pursuant to federal law. A plea
to certain crimes, including but not limited to
domestic violence, drug possession, theft, burglary of
25a
a vehicle will have an adverse impact on your
immigration status.
7. Deferred Adjudication: If the Court grants you
deferred adjudication/community supervision, you
could be arrested and detained if you violate any
condition of your probation. You will then be entitled
to a hearing without a jury limited to the
determination by the Court of whether to proceed with
an adjudication of guilt on the original charge. Upon
such adjudication of your guilt, the Court may assess
your punishment at any length of time and any fine
within the range of punishment allowed by law. Be
further advised that under federal immigration law, a
deferred adjudication of a removable offense under
Texas law is considered a conviction.
8. Misdemeanor Involving Family Violence as
defined by Section 71.004, Family Code: If you are
convicted of a misdemeanor offense involving violence
where you are or were a spouse, intimate partner,
parent, or guardian of the victim or are or were
involved in another, similar relationship with the
victim, it may be unlawful for you to possess or
purchase a firearm, including a handgun or long gun,
or ammunition, pursuant to federal law under Title 18
U.S.C. Section 922(g)(9) or Section 46.04(b), Texas
Penal Code.
9. Conditions of Community Supervision: The
judge may impose any reasonable condition of
community supervision beyond those specified in the
statute if the plea is accepted. The judge may reverse,
alter, or modify the conditions of community
supervision at any time during the probation period.
10. Driver’s License Suspension and Surrender:
The Transportation Code provides that the
26a
Department of Public Safety may suspend a driver’s
license and require payment of surcharges for certain
offenses, including Driving While Intoxicated, Driving
While License Invalid, Suspended, Cancelled, or no
license, possession of certain controlled substances,
possession of marijuana, and others.
VOLUNTARY STATEMENTS
NOW COMES the Defendant in open court in the
above styled and numbered cause and after consulting
with counsel makes the following voluntary
statements:
• I was sane at the time of the offense, and am
presently competent to stand trial.
• I understand the nature of the charge(s) against
me and the plea agreement, if any.
• I understand the admonishments set out in this
document and I am aware of the consequences of my
plea of guilty or my plea of no contest.
WAIVERS
After consulting with my attorney, I freely,
knowingly, and voluntarily waive the following rights:
• Reading of the indictment or information.
• The right to a jury trial, in all forms; the right to
a jury for sentencing; arraignment; the right to file
motions or special pleas; appointment of counsel; the
27a
right that 10 days or any other statutory period must
elapse before trial.
• The right to a trial by jury, and I request the
written consent and approval of the Court and
prosecuting attorney for the waiver.
•
The right to confront and cross-examine
witnesses against me and any objection to the
evidence accompanying this waiver.
• My right to require the State to produce
testimony of witnesses, evidence sufficient to
establish my guilt.
• The right to subpoena witnesses to testify for
myself.
• The right to remain silent and not testify against
myself.
28a
Appendix E
Trial Court’s Certification of Defendant’s Right of
Appeal
Signed July 6, 2023
No. C-1-CR-18-501959
THE STATE OF TEXAS
v.
JAMES EARL
IN THE COUNTY COURT AT LAW NUMBER 4
TRAVIS COUNTY, TEXAS
TRIAL COURT’S CERTIFICATION OF
DEFENDANT’S RIGHT OF APPEAL
I, Dimple Malhotra, Judge of the above Trial
Court, certify this criminal case:
☐ is not a plea-bargain case, and the defendant
has the right of appeal.
☐ is a plea-bargain case, but matters were raised
by written motion filed and ruled on before trial and
not withdrawn or waived, and the defendant has the
right of appeal.
☒ is a plea-bargain case, but the trial court has
given permission to appeal, and the defendant has the
right of appeal.
☐ is a plea-bargain case, and the defendant has
NO right of appeal.
☐ the defendant has waived the right of appeal.
29a
☐ the notice of appeal was not timely filed, and
the defendant has NO right of appeal.
SIGNED This 6th day of July, 2023.
/s/ Dimple Malhotra
Judge Presiding
I understand that an appeal is perfected by timely
filing a sufficient notice of appeal in writing and filed
with the trial court clerk. I also understand the notice
of appeal must be filed: (1) within 30 days after the
day sentence is imposed or suspended in open court,
or after the day the trial court enters an appealable
order; or (2) within 90 days after the day sentence is
imposed or suspended in open court if the defendant
timely files a motion for new trial.
I, James Earl, DEFENDANT in the above styled
and numbered cause, have received a copy of this
certification. I have also been informed of my rights
concerning any appeal of this criminal case, including
any right to file a pro se petition for discretionary
review pursuant to Rule 68 of the Texas Rules of
Appellate Procedure. I have been admonished that my
attorney must mail a copy of the Court of Appeals’
judgment and opinion to my last known address and
that I have only 30 days in which to file a pro se
petition for discretionary review in the Court of
Appeals. Tex. R. App. P. 68.2. I acknowledge that, if I
wish to appeal this case and if I am entitled to do so,
it is my duty to inform my appellate attorney, by
written communication, of any change in address at
30a
which I am currently living or any change in my
current prison unit. I understand that, because of
appellate deadlines, if I fail to timely inform my
appellate attorney of any change in my address, I may
lose the opportunity to file a pro se petition for
discretionary review.
Defendant
Mailing address: [on file]
Attorney for Defendant
Telephone #: (432) 2790411
Fax #: (432) 201-2002
State Bar Card #:
[Haygood — 00792970
MWB]
31a
Appendix F
Texas Penal Code § 42.07
Effective September 1, 2017 to August 31, 2021
§ 42.07. Harassment
(a) A person commits an offense if, with intent to
harass, annoy, alarm, abuse, torment, or embarrass
another, the person:
(1) initiates communication and in the course of
the communication makes a comment, request,
suggestion, or proposal that is obscene;
(2) threatens, in a manner reasonably likely to
alarm the person receiving the threat, to inflict bodily
injury on the person or to commit a felony against the
person, a member of the person’s family or household,
or the person’s property;
(3) conveys, in a manner reasonably likely to
alarm the person receiving the report, a false report,
which is known by the conveyor to be false, that
another person has suffered death or serious bodily
injury;
(4) causes the telephone of another to ring
repeatedly
or
makes
repeated
telephone
communications anonymously or in a manner
reasonably likely to harass, annoy, alarm, abuse,
torment, embarrass, or offend another;
(5) makes a telephone call and intentionally fails
to hang up or disengage the connection;
(6) knowingly permits a telephone under the
person’s control to be used by another to commit an
offense under this section; or
32a
(7) sends repeated electronic communications in a
manner reasonably likely to harass, annoy, alarm,
abuse, torment, embarrass, or offend another.
(b) In this section:
(1) “Electronic communication” means a transfer
of signs, signals, writing, images, sounds, data, or
intelligence of any nature transmitted in whole or in
part
by
a
wire,
radio,
electromagnetic,
photoelectronic, or photo-optical system. The term
includes:
(A) a communication initiated through the use of
electronic mail, instant message, network call, a
cellular or other type of telephone, a computer, a
camera, text message, a social media platform or
application, an Internet website, any other Internetbased communication tool, or facsimile machine; and
(B) a communication made to a pager.
(2) “Family” and “household” have the meaning
assigned by Chapter 71, Family Code.
(3)
“Obscene” means containing a patently
offensive description of or a solicitation to commit an
ultimate sex act, including sexual intercourse,
masturbation, cunnilingus, fellatio, or anilingus, or a
description of an excretory function.
(c) An offense under this section is a Class B
misdemeanor, except that the offense is a Class A
misdemeanor if:
(1) the actor has previously been convicted under
this section; or
(2) the offense was committed under Subsection
(a)(7) and:
33a
(A) the offense was committed against a child
under 18 years of age with the intent that the child:
(i) commit suicide; or
(ii) engage in conduct causing serious bodily injury
to the child; or
(B) the actor has previously violated a temporary
restraining order or injunction issued under Chapter
129A, Civil Practice and Remedies Code.
34a
Appendix G
Texas Penal Code § 42.07
Effective December 4, 2025
§ 42.07. Harassment
(a) A person commits an offense if, with intent to
harass, annoy, alarm, abuse, torment, or embarrass
another, the person:
(1) initiates communication and in the course of
the communication makes a comment, request,
suggestion, or proposal that is obscene;
(2) threatens, in a manner reasonably likely to
alarm the person receiving the threat, to inflict bodily
injury on the person or to commit a felony against the
person, a member of the person’s family or household,
or the person’s property;
(3) conveys, in a manner reasonably likely to
alarm the person receiving the report, a false report,
which is known by the conveyor to be false, that
another person has suffered death or serious bodily
injury;
(4) causes the telephone of another to ring
repeatedly
or
makes
repeated
telephone
communications anonymously or in a manner
reasonably likely to harass, annoy, alarm, abuse,
torment, embarrass, or offend another;
(5) makes a telephone call and intentionally fails
to hang up or disengage the connection;
35a
(6) knowingly permits a telephone under the
person’s control to be used by another to commit an
offense under this section;
(7) sends repeated electronic communications in a
manner reasonably likely to harass, annoy, alarm,
abuse, torment, embarrass, or offend another;
(8) publishes on an Internet website, including a
social
media
platform,
repeated
electronic
communications in a manner reasonably likely to
cause emotional distress, abuse, or torment to another
person, unless the communications are made in
connection with a matter of public concern;
(9) tracks or monitors the personal property or
motor vehicle of another person, without the other
person’s effective consent, including by:
(A) using a tracking application on the person’s
personal electronic device or using a tracking device;
or
(B) physically following the other person or
causing any person to physically follow the other
person; or
(10) makes obscene, intimidating, or threatening
telephone calls or other electronic communications
from a temporary or disposable telephone number
provided by an Internet application or other
technological means.
(b) In this section:
(1) “Court employee” means an employee whose
duties relate to court administration, including a
court clerk, court coordinator, court administrator,
juvenile case manager, law clerk, or staff attorney.
The term does not include a judge.
36a
(1-a) “Electronic communication” means a transfer
of signs, signals, writing, images, sounds, data, or
intelligence of any nature transmitted in whole or in
part
by
a
wire,
radio,
electromagnetic,
photoelectronic, or photo-optical system. The term
includes:
(A) a communication initiated through the use of
electronic mail, instant message, network call, a
cellular or other type of telephone, a computer, a
camera, text message, a social media platform or
application, an Internet website, any other Internetbased communication tool, or facsimile machine; and
(B) a communication made to a pager.
(2) “Family” and “household” have the meaning
assigned by Chapter 71, Family Code.
(3)
“Obscene” means containing a patently
offensive description of or a solicitation to commit an
ultimate sex act, including sexual intercourse,
masturbation, cunnilingus, fellatio, or anilingus, or a
description of an excretory function.
(4) “Utility” has the meaning assigned by Section
22.01(e).
(c) An offense under this section is a Class B
misdemeanor, except that the offense is:
(1) a Class A misdemeanor if:
(A) the actor has previously been convicted under
this section;
(B) the offense was committed under Subsection
(a)(7) or (8) and:
(i) the offense was committed against a child
under 18 years of age with the intent that the child:
37a
(a) commit suicide; or
(b) engage in conduct causing serious bodily injury
to the child; or
(ii) the actor has previously violated a temporary
restraining order or injunction issued under Chapter
129A, Civil Practice and Remedies Code;
(C) the offense was committed against a person
the actor knows or reasonably should know is an
employee or agent of a utility while the person is
performing a duty within the scope of that
employment or agency; or
(D) the offense was committed against a person
the actor knows is a court employee;
(2) a state jail felony if the offense was committed
against a person the actor knows is:
(A) a court employee and the actor has previously
been convicted under this section; or
(B) a judge; and
(3) a felony of the third degree if the offense was
committed against a person the actor knows is a judge
and the actor has previously been convicted under this
section.
(d) In this section, “matter of public concern” has the
meaning assigned by Section 27.001, Civil Practice
and Remedies Code.
(e) For purposes of Subsection (a)(9), it is presumed
that a person did not give effective consent to the
actor’s conduct if:
(1) an application for a protective or restraining
order against or with respect to the actor has been
filed by or on behalf of the person under Subchapter
38a
A, Chapter 7B, Code of Criminal Procedure, Article
17.292, Code of Criminal Procedure, Section 6.504,
Family Code, or Subtitle B, Title 4, Family Code, or
an order has been issued against or with respect to the
actor under one of those provisions; or
(2) the person is married to the actor and a
petition for dissolution of marriage has been filed, or
the person was previously married to the actor and
the marriage has been dissolved.
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.