Petition for Writ of Certiorari — James Ryan Earl, Petitioner v. Texas

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.