Petition — McVicker v. Texas

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Supreme Court Of The United States

OCTOBER TERM, 1980

PARKER McVICKER,

Petitioner,

THE STATE OF TEXAS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF

THE STATE OF TEXAS

Marvin O. TEAGUE

1314 Texas Avenue, Suite 1206

Houston, Texas 77002

(713) 222-1728

Tom S. McCorkK.e

500 Katy Building

Dallas, Texas 75202

(214) 742-1411

Counsel for Petitioner

7’.

NO.

IN THE

Supreme Court Of The United States

OCTOBER TERM, 1980

PARKER McVICKER,

Petitioner,

THE STATE OF TEXAS,

Respondent.

PETITION FOR A \WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF

THE STATE OF TEXAS

Question Presented

WHETHER SEC. 42.07 (A) (1), OF THE TEXAS PENAL

CODE, WHICH PROVIDES, IN PART, AS FOLLOWS:

(a) A person commits an offense if he intentionally:

(1) communicates by telephone .. . in a coarse

and offensive manner ahd by this action in-

tentionally, knowingly, or recklessly annoys

or alarms the recipient or intends to annoy

or alarm the recipient . . .

IS FACIALLY VAGUE AND GROSSLY OVERLYBROAD

AND, THEREFORE, VIOLATIVE OF DUE PROCESS OF

LAW AS GUARANTEED BY THE FOURTEENTH

AMENDMENT TO THE CONSTITUTION OF THE

UNITED STATES OF AMERICA AS WELL AS BEING

VIOLATIVE OF THE PROVISIONS OF THE FIRST

AMENDMENT TO THE CONSTITUTION .OF THE

UNITED STATES OF AMERICA?

iii

TABLE OF CONTENTS

Page

Sy CONE en as 00s ele eines La emend epi wewes ix

SE a iy cc ba iC ckaa ashen) used uudeeee ban ix

Gate ETERS oo ccieeeccuuddvevesusdevasacs i

WHETHER SEC. 42.07(A) (1), OF THE TEXAS

PENAL CODE WHICH PROVIDES, IN PART, AS

FOLLOWS:

(a) A person commits an offense if he

intentionally:

(1) communicates by telephone... ina

coarse and offensive manner and by

this action intentionally, knowingly,

or recklessly annoys or alarms the

recipient or intends to annoy or alarm

A TE Ga Fa Leb Usain eye lvenev's

IS FACIALLY VAGUE AND GROSSLY OVER-

LYBROAD AND, THEREFORE, VIOLATIVE OF

DUE PROCESS OF LAW AS GUARANTEED BY

THE FOURTEENTH AMENDMENT TO THE

CONSTITUTION OF THE UNITED STATES OF

AMERICA AS WELL AS BEING VIOLATIVE OF

THE PROVISIONS OF THE FIRST AMEND-

MENT TO THE CONSTITUTION OF THE

UNITED STATES OF AMERICA?

SUMMARY OF THE ARGUMENT ................008: 1

DISCUSSION, ARGUMENT AND AUTHORITIES ...... 1

AS APPLIED IN THE INSTANT CASE, TEX.

PENAL CODE ANN. TITLE 4, §42.07(a)(1) |

(VERNON’S 1974), IS UNCONSTITUTIONAL

BECAUSE IT IS VAGUE AND OVERLY OVER-

BROAD.

CREE GGG N ue hla eek ov 68 orn busndevenaawean 13

CUCR ES PRAIA Rae GE CAME URGED cise ci cove cucnceskesauces 14

APPENDIX

EXHIBIT “A”

REE ERI TERR eae gran me rae a A-1

EXHIBIT “B”

Cs te owe Leek a eik hah oaths gnade dad A-2

EXHIBIT “C”

| FU QMOME 22... cece cece ccc ee rene nceceecenens A-3

ee wn ie LiL e Cane mas €n ncakeh PRK eR A-5

EXHIBIT “D”

Complaints By Grievance Committee ............ A-7

EXHIBIT “E”

SO Oe IED Sins sncnsccnnccvcdcessddanen A-9

Consent To Judgment .............0cceeeceeees A-12

EXHIBIT “F”

Objections To Grievance Committee’s

MEER Ub chars sedan eheg kbar coawes A-14

EXHIBIT “G”

Original Formal Complaint .................... A-22

EXHIBIT “H”

Application for Writ of Habeas Corpus .......... A-25

EXHIBIT “1”

Proceedings, County Court At Law ............. A-37

EXHIBIT “J”

Application for Writ of Habeas Corpus ......... A-51

EXHIBIT “K”

Original Application for Writ of Habeas Corpus .. A-65

EXHIBIT “L”

ee I GON iss cin acc cccvceccccse’ A-66

TABLE OF AUTHORITIES

Cases:

Alobaidi v. State, 433 SW2d 440 (Tex. Crim. App.

+1968), cert. denied, 393 U.S. 943 (1969) ............. 2

Ashton v: Kentucky, 384 U.S. 195, 86 S.Ct. Rep. 1407,

i. ee CE i nce ch sche ecpecdsebews's 5

Carafas v. La Valle, 391 U.S. 234, 20 L.Ed. 554, 88 S.Ct.

EE Ee ea bi Ouled abe des nen weno ee xii

Chaplensky v. New Hampshire, 315 U.S. 568, 62 S.Ct.

EE ins es Foe EEN Co be Habeas e.nep eee 9

Cohen v. California, 403 U.S. 15, 1780, 29 L.Ed. 2d

ee a ks Rinse 6s wedare Wm ibs wb 6.e's 6, 9, 11

Collection Consultants, Inc. v. State, 556 SW2d 787

(Tex. Crim. App. 1977), appeal dismissed, 436 U.S.

901 (1978), rehearing denied, 438 U.S. 908 (1978) ... 3

Courtemanche v. State, 507 SW2d 545 (Tex. Crim. App.

RIS SECS RES TRS: ARS pe EG a a CA 3, 4

Darnell v. State, 72 Tex. Crim. 271, 161 SW 971 (Tex.

deh als y cause pe bdhesin e's eee ov > 3, 4

Ex parte Brewer, 452 SW2d 452 (Tex. Crim. App.

Piss LAVALLE Y Nan Washed Ve ceees Cheesevesees xi

Gooding v. Wilson, 405 U.S. 518, 94 S.Ct. Rep. 1780, 40

i SEE +5 bee waeee ces es peceedecess 2, 6, 8

Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct.

Rep. 2294, 33 L.Ed. 2d 222 (1972) ...............06. 4

Hiett v. United States, 415 F.2d 664 (5th Cir. 1969),

cert. denied, 397 U.S. 936 (1970) ...............0... 8

’%

Vii |

Irven v. State, 138 Tex. Crim. 368, 136 SW2d 608 (Tex.

Sc RES lig vw h id ow Gb blb A es dhe nae ae win wes 4

Jordan v. De George, 341 U.S. 223, 231, 71 S.Ct. Rep.

TO WE EA DAEMON oo chinensis ven iceonecge canes 5

Kramer v. State, Tex. Crim. App., No. 57,355, October

Dek oi Cece s cha bs hee epewacdaehed shes xi, 2, 10

LeBlanc v. State, 441 SW2d 847 (Tex. Crim. 1969) ...... 2

Lewis v. City of New Orleans, 415 U.S. 130, 133-34, 415

U.S. 130, 94 S.Ct. Rep. 970, 39 L.Ed. 2d 214 (1974) .. 2,8

Matthews v. Florida, 463 F.2d 679 (5th Cir. 1972) ...... xi

Miller v. California, 413 U.S. 15, 93 S.Ct. Rep. 2607, 37

Cs is een mio vtins vole caiiek ae bie 2

Organization for a Better Austin v. Keefe, 402 U.S. 415,

419, 91 S.Ct. Rep. 1575, 29 L.Ed. 2d 1 (1971) ........ 9

Phelper v. State, 433 SW2d 897 (Tex. Crim. App.

PETA apace ab aedlemi eal, « wunin blue wy bk une 4) 0 xi

Radford v. Webb, 446 F.Supp. 608 (W.D. N.C. 1978),

aff'd., 596 F.2d 1205 (4th Cir. 1979) ................ 6

Rowan v. Post Office Department, 397 U.S. 728, 90 S.Ct.

Rep. 1484, 25 L.Ed. 2d 736 (1970) .................. 2

Smith v. Goguen, 415 U.S. 566 (1974) .................. 3

United States v. Harriss, 347 U.S. 612, U.S. 74, S.Ct. Rep.

Os We Bats OL CRO) os icccccpeiabecccwucsvcee 4

Walker v. Dillard, 523 F.2d 3 (4th Cir. 1975), cert.

denied, 423 U.S. 906 (1975) ............... 2, 5, 6, 7,8

Watts v. United States, 394 U.S. 705, 89 S.Ct. Rep. 1399,

TR SUE CUD ok coin ccs cau ccewd goncnecacece 2

*-%

viii

Statutes:

North Carolina General Statute, Art. 14-196 (1969) ...... 7

Virginia Code Ann., Art. 18.1-238 (1950) ............... 5

Tex. Penal Code. Ann. Title 4,

PAR PCCD LAD EEDEED co cvcccccccvcncess i, 1, 8, 9, 13

Tex. Penal Code Ann. Art. 42.07(a) (2) .............4.. 3

hs SE CD MAMI, TARE, GO ohne cs ccccccnvccccecene 2

Law Review Articles:

Olson, Paul, “The Texas Harassment Statute,”

17 South Texas Law Journal 283 (1975) ............ 3

17 South Texas Law Journal 296 (1975) ............ 3

17 South Texas Law Journal 298 (1975) ............ 5

17 South Texas Law Journal 300 (1975) ............ 8

Steele, Walter W., Jr., “The Impact of the New Penal

Code on First Amendment Freedoms,”

38 Texas Bar Journal 245, 253 (1975) ............ 8, 9

Opinion Below

There is no opinion of the Court of Criminal Appeals.

An Order of the Court was entered, Per Curiam, En Banc,

on September 29, 1980, and a copy of same is attached to

this Petition as Exhibit “K”.

Jurisdiction

As reflected by the Certificate of the Clerk of the Court

of Criminal Appeals, the entry of the above Order consti-

tutes a final judgment of the Court of Criminal Appeals.

The jurisdiction of this Court is invoked under 28 U.S.C.

1257 (3).

Constitutional Provisions Involved

The First Amendment to the Constitution provides:

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of

the press; or the right of the people peaceably to

assemble, and to petition the government for a

redress of grievances.

The Fourteenth Amendment to the Constitution pro-

vides in part:

SECTION 1. — All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the

state wherein they reside. No state shall make or

enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty,

or property, without due process of law, nor deny

to any person within its jurisdiction the equal

protection of the laws... .

Statement of the Facts of the Case

Petitioner, an Attorney at Law, was charged by Com-

plaint and Information, filed in the County Court at Law of

Angelina County, Texas, on July 3, 1979, in Cause Number

10367, in that cause entitled The State of Texas vs. Parker

McVicker, for the alleged criminal offense of “telephone

harassment,” see Texas Penal Code, Sec. 42,07(a) (1), and,

on October 5, 1979, pursuant to a plea of guilty to said

charge, Petitioner was assessed a fine of ONE THOUSAND

AND NO/100 DOLLARS ($1,000.00), which was subse-

quently paid by Petitioner.’

Petitioner thought this ended and terminated the

matter.

However, much to Petitioner’s chagrin and surprise,

on or about the 20th day of November, A.D. 1979, the Chair-

man of the Grievance Committee, District 3B, State Bar of

Texas, in its Cause Number 79-17, filed a Complaint against

Petitioner, which complaint was predicated upon the afore-

said conviction. On June 5, 1980, a hearing on said complaint |

was conducted by the said Grievance Committee and that

Committee made certain unfavorable findings towards

Petitioner to which Petitioner objected. Under the provi-

sions of the State Bar Act cf Texas, a proposed Order of

Suspension was presented to Petitioner, but same was

totally and wholly unacceptable to and was rejected by

Petitioner as more clearly reflected by Petitioner’s objec-

tions to the proposal. Thereafter, the State Bar of Texas,

acting through its General Counsel, on or about September

25, 1980, filed an Original Formal Complaint against

Petitioner and the matter is now pending in the District

1See Exhibits ‘‘A’’, ‘‘B’’, and ‘‘C” attached hereto.

’%

- |

Court of Angelina County, Texas, in that Cause Number

18244-80-9, and in that cause entitled The State of Texas

vs. Parker McVicker.”

The history of this Petition for Certiorari reflects that

Petitioner, on or about July 31, 1980, filed an original

Application for Writ of Habeas Corpus in the County Court

at Law of Angelina County, Texas to set aside the aforesaid

conviction and, on September 2, 1980, a hearing was held

and conducted on said Application with the trial court

judge ruling that: “It’s the finding of the Court that juris-

diction is not proper in this matter in this Court and that

jurisdiction lacks; and therefore the writ is dismissed at

this time.’”*

Under Texas law, there is no appeal from such a de-

cision. See, for example, Phelper v. State, Tex. Cr. App., 433

SW2d 897 (1968); and Ex parte Brewer, Tex. Cr. App., 452

SW2d 452 (1970).

Therefore, the Petitioner then filed an original Applica-

tion for Writ of Habeas Corpus with the Court of Criminal

Appeals of the State of Texas which was, on September 29,

1980, denied by that Court. Petitioner has, however,

exhausted all avenues for relief to the Court of Criminal

Appeals.‘ The action of the Court of Criminal Appeals is

understandable in light of its decision in Kramer v. State,

No. 57,355, October 1, 1980, on State’s Motion for Rehearing,

where a majority of the Court, by a 5-4 decision, on the day

after it denied Petitioner’s Application, rejected in part or

whole the contentions Petitioner presents to this Honorable

Court.

2See Exhibits ‘‘D’’, “E”’, ‘‘F”, and “G” attached hereto.

*See Exhibits ‘‘H’’ and ‘‘I’’ attached hereto.

“See Exhibits “J”, “K” and “L”’ attached hereto.

’*%

xii:

Cumment

Because Petitioner is presently suffering collateral

consequences or collateral disabilities arising from his

aforesaid conviction, see supra, the issue regarding the

validity of his conviction is not moot, even though the fine

This Honorable Court in Carafas v. La Valle, 391 US.

234, 20 L.Ed. 554, 88 S.Ct. 1556 (1968) held, in that regard:

It is clear that petitioner’s cause is not moot. In

consequence of his conviction, he cannot engage in

certain businesses; he cannot serve as an official of

a labor union for a specified period of time; he

cannot vote in any election held in New York

State; he cannot serve as a juror. Because of these

“disabilities or burdens (which) may flow from”

petitioner’s conviction, he has “a substantial stake

*~ the judgment of conviction which survives the

satisfaction of the sentence imposed on him.” . . .

On account of these “collateral consequences,” the

case is not moot. (558, L.Ed.).

See also Matthews v. Florida, 463 F.2d 679 (5th Cir. 1972).

Thus, as easily seen by the Complaint of the Grievance

Committee, see Exhibit “D,” its action was predicated

entirely upon the conviction of Petitioner. See also the pro-

posed Order of Suspension, Exhibit “E.” For whatever rea-

son, it now appears that the action of the General Counsel

of the State Bar of Texas resembles a “change of horses in

midstream,” but it is nevertheless submitted that as the

evidence of the conviction can go to the allegations in the

pleadings, the conviction is, at this time, similar to the real

estate principle of law of Nubibus, in that the conviction of

xiii

Petitioner is hovering in the sky awaiting a place to fall in

the lawsuit now pending to reprimand, suspend or disbar

Petitioner from the practice of law. Thus, the conviction

Petitioner suffered is now being used, either directly or

indirectly, by the State Bar of Texas in its action against

Petitioner Unquestionably, Petitioner is presently suffering

collateral disabilities or collateral consequences from the

conviction.

Summary of the Argument

DISCUSSION, ARGUMENT AND AUTHORITIES

AS APPLIED IN THE INSTANT CASE, TEX.

PENAL CODE ANN. TITLE 4, §42.07(a) (1)

(VERNON’S 1974), IS UNCONSTITUTIONAL

BECAUSE IT IS VAGUE AND OVERLY OVER-

BOARD.

The Petitioner in the case at bar has been convicted of

violating Tex. Penal Code Ann. Title 4, §42.07(a) (1)

(Vernon 1974), which provides in pertinent part:

(a) A person commits an offense if he intentionally:

(1) communicates by telephone or in writing in

vulgar, profane, obscene or indecent lan-

guage or in a coarse and offensive manner

and by this action intentionally, knowingly

or recklessly annoys or alarms the recipient

or intends to annoy or alarm the recipient.

(Emphasis underscored.) °

It is respectfully submitted that this statute, as applied in

the instant case, fails to satisfy stated constitutional stan-

dards of due process in that it is vague and overlybroad,

and it criminalizes expression which the United States

Supreme Court has found to be protected by the First

Amendment. |

It must be recognized initially that the state has a

5The accusation, for which Petitioner was convicted, alleged in per-

tinent part that the Petitioner ‘‘did then and there intentionally

communicate by telephone in a coarse and offensive manner and by

this action intentionally and knowingly alarmed Lisa Fussell, the

recipient of said communication.’’ See also Exhibit ‘‘A’’.

- |

legitimate interest in protecting privacy and in proscribing

obscene, threatening, or harassing »hone calls. Cf. Miller v.

California, 413 U.S. 15, 93 Sup.Ct.Rep. 2607, 37 L.Ed. 2d 419

(1973); Rowan v. Post Office Department, 397 U.S. 728, 90

Sup.Ct.Rep. 1484, 25 L.Ed. 2d 736 (1970); Watts v. United

States, 394 U.S. 705, 89 Sup.Ct.Rep. 1399, 22 L.Ed. 2d 664

(1969). Such activity may permissibly be punished since it

is not protected by the First Amendment. The proscription,

however, must not be one .hat unduly impinges on protected

expression. See, e.g., Gooding v. Wilson, 405 U.S. 518, 94

Sup.Ct.Rep. 1780, 40 L.Ed. 2d 250 (1972). Standing to raise

the issue of overbreadth in the First Amendment context is

conferred because it is deemed necessary; otherwise,

“persons whose expression is constitutionally protected may

well refrain from exercising their rights for fear of criminal

sanctions provided by a statute susceptible of application to

protected expression.” Lewis v. City of New Orleans, 415

U.S. 130, 133-34, 415 U.S. 130, 94 Sup.Ct.Rep. 970, 39 L.Ed.

2d 214 (1974). See also, Walker v. Dillard, 523 F.2d 3 (4th

Cir. 1975), cert. denied, 423 U.S. 906 (1975).

Although §42.07(a)(1) has not been authoritatively

construed, Cf. Kramer v. State, No. 57,355, October 1, 1980,

on State’s Motion for Rehearing, the constitutionality of its

predecessor, Tex. Penal Code Ann. Art. 476, has been up-

held. In Alobaidi v. State, 433 SW2d 440 (Tex. Crim. 1968),

cert. denied, 393 U.S. 943 (1969), the Court of Criminal

Appeals upheld the validity of that part of the law which

excepted harassing, annoying, or threatening telephone

calls if such calls were “for a lawful business purpose.” The

court did not address the questions of vagueness or over-

breadth as the only question decided was whether there

could be a statutory exception for business calls. In LeBlanc

v. State, 441 SW2d 847 (Tex. Crim. 1969), the defendant’s

contention that the statute was void because it was too

vague and indefinite was summarily overruled by the court

on the basis of Alobaidi v. State, supra. In his article, “The

Texas Harassment Statute,” 17 South Texas Law Journal

283 (1975),° Prof. Paul Olson noted that “[t]he reliance

upon Alobaidi v. State was misplaced, for, as shown above,

any possible constitutional holding in Alobaidi as to the

portion of the statute in question could only be dicta.” Id. at

296.

Professor Olson pointed out that the only case con-

struing this statutory provision is Darnell v. State, 72 Tex.

Crim. 271, 161 SW 971 (1913). In that case the phrase “son

of a bitch” was found to be indecent, vulgar, and obscene

based on the definition given to the phrase by lexicograph-

ers. This holding is suspect for two reasons. First, the

definitions of the phrase were as vague as the statutory

language itself, and the enforcement of the statute “was

placed within the subjective discrimination of the par-

ticular trier of fact, one of the very things prohibited by

the doctrine of vagueness.” Olson, supra, 17 S. Tex. L.J. at

296. See Smith v. Goguen, 415 U.S. 566 (1974). Second, the

term “vulgar” has been held to be inherently vague. Courte-

manche v. State, 507 SW2d 545 (Tex. Crim. 1974).

In Collection Consultants, Inc. v. State, 556 SW2d 787

(Tex. Crim. 1977), appeal dismissed, 436 U.S. 901 (1978),

rehearing denied, 438 U.S. 908 (1978), the Court of Criminal

Appeals upheld the constitutionality of subdivision (a) (2)

of §42.07, which deals with threatening, by telephone or in

writing, to take unlawful action against a person and by

such action annoying or alarming the recipient. The court

*Hereafter referred to as S. Tex. L.J.

°%

ruled, inter alia, that the words “annoy” and “alarm” did

not render this section unconstitutionally vague. The de-

cision did not, however, rule on the constitutionality of

subsection (a) (1).

The part of the statute under examination concerns

words which are “coarse” and “offensive”. As noted above,

the term “vulgar” has already been held to be vague.

Courtemanche v. State, supra. The definition of vulgar used

in Darnell v. State, supra (lacking cultivation or refine-

ment; offensive to good taste or refined feelings; low;

coarse), was rejected in Courtemanche since it did not

clarify how the term was to be applied. The decision states

that “under such a definition some segments of the popula-

tion could well find any form of barroom entertainment to

be vulgar.” 507 SW2d at 546. Additionally, the words

“offensive to public decency” were held to be vague and

indefinite in Irven v. State, 138 Tex. Crim. 368, 136 SW2d

608 (1940). The court felt that the proscribed acts would

vary too much according to the “fastidious, refined, or

primitive views of the community in which they happen to

be committed . . .” 135 SW2d at 609.

Due process requires that “laws [must] give the person

of ordinary intelligence a reasonable opportunity to know

what is prohibited, so that he may act accordingly.”

Grayned v.,City of Rockford, 408 U.S. 104, 108, 92 Sup.Ct.

Rep. 2294, 33 L.Ed. 2d 222 (1972). In United States v. Har-

riss, 347 U.S. 612, U.S. 74, Sup.Ct.Rep. 803, 98 L.Ed. 2d 989

(1954), the Supreme Court of the United States declared

that the underlying principle in cases involving vague

TInterestingly, by the accusation, see Exhibits “A’’ and “B’’, the

Petitioner was not told what words he uttered that were ‘‘coarse”

and “offensive.”

statutes is that “no man shall be held criminally responsible

for conduct which he could not reasonably understand to be

proscribed.” 347 U.S. at 617. The test to be applied is

“whether the language conveys sufficiently definite warn-

ing as to the proscribed conduct when measured by common |

understanding and practices.” Jordan v. De George, 341 U.S.

223, 231, 71 Sup.Ct.Rep. 703, 95 L.Ed. 886 (1954). When

First Amendment rights and freedoms are involved, how-

e\ ./, a stricter standard is to be applied. See Ashton v.

Kentucky, 384 U.S. 195, 86 Sup.Ct.Rep. 1407, 16 L.Ed. 2d

469 (1966).

In the instant case the statute at issue fails to give

sufficient warning as to the proscribed conduct when

measured by common understanding. Words such as

“vulgar,” “profane,” “obscene,” “indecent,” “coarse,” and

“offensive” do not give the person of ordinary intelligence

a reasonable opportunity to know what is prohibited. The

meaning of these terms “depends upon the moral idiosyn-

cracises of the persons who compose the court or jury.” The

standard of crime can be ever varying and the courts on

appeal may be constantly forced to become instruments of

moral reform whenever there is a fluctuation in moral

sentiment.” Olson, supra, 17 S. Tex. L.J. at 298.

Of equal concern with the void for vagueness doctrine

is the problem of overbreadth. A statute which proscribes

activities that are protected under the First and Fourteenth

Amendments as well as those. activities which are not pro-

tected is overbroad and unconstitutional. Overbroad statutes

have a “chilling effect” that tends to deter the exercise of

protected speech.

Walker v. Dillard, supra, 523 F.2d 3 (4th Cir. 1975), in-

volved a violation of a Virginia statute, Va. Code Ann.

°*

§18.1-238 (1950), which proscribed the use of “vulgar, pro-

fane, threatening, or indecent language” over the telephone.

The Fourth Circuit Court of Appeals found the statute

facially overbroad and ruled in favor of the petitioner for

habeas corpus. The court was particularly disturbed by the

fact that “the statute does not reach the anonymous mid-

night caller who only breathes into the mouthpiece, unless

repeated calls might be said to be abusive, but it makes

punishable an indiscreet response from the outraged

recipient of that call.” 523 F.2d at 5.

The Walker court also found that the words “vulgar,”

“profane,” and “indecent” were “capable of overbroad in-

terpretation.” Id. The court noted in Gooding v. Wilson,

supra, that “the court held facially unconstitutional a

Georgia statute proscribing ‘opprobrious words or abusive

language’ because the statute had not been narrowed by the

state courts to apply only to ‘fighting words.’ ” 523 F.2d at 5.

In Cohen v. California, 403 U.S. 15, 1780, 29 L.Ed 2d 284

(1971), an unquestionably vulgar phrase was found to be

protected nonetheless because it amounted neither to

obscenity nor fighting words.

The opinion in Walker notes that if the words of the

statute were construed to prohibit only obscenity, they

could stand. The court found, however, that the statute did

not allow for such construction since the words were not

used in conjunction with more specific adjectives which

would limit the proscribed conduct to obscene language.

Thus, the court concluded that the statute was “facially

and substantially overbroad.” 523 F.2d at 6.

A North Carolina statute quite similar to the one struck

down in Walker was found unconstitutionally overbroad in

Radford v. Webb, 446 F. Supp. 608 (W.D. N.C. 1978), aff,

'*»

596 F.2d 1205 (4th Cir. 1979). In that case a defendant, con-

victed of violating N.C. Gen. Stat. §14-196 (1969), upon a

charge that he had used “profane, indecent and threatening

language” over a telephone, applied for a writ of habeas

corpus, claiming that the statute was overbroad on its face

and that it violated the First and Fourteenth Amendments.

The District Court, referring to Walker v. Dillard, supra,

noted that the Court of Appeals for the Fourth Circuit had

found the Virginia statute, which prohibited the use of

“vulgar, profane, threatening or indecent language over any

telephone,” to be overbroad. The court then stated:

There is nothing in this case to distinguish it

Walker. The language of N.C.G.S. sr apatsy 1)

is broad enough to cover not only obscenity but

also the use of words whose “connotation” is

vulgar or profane. Such a sweeping prohibition

would reach comments made in the course of

heated arguments or expressions of justified indig-

nation just as easily as it could be applied to the

traditional obscene phone call. A statute whose

terms are thus susceptible of constitutional as well

as unconstitutional application can only survive if

it has been authoritatively construed to exclude

speech which, though vulgar or offensive, is pro-

tected by the First and Fourteenth Amendments.

446 F. Supp. at 610-11.

The court rejected the state’s argument that the statute

had been “sufficiently narrowed” so as to pass constitutional

requirements.

The Texas harassment statute, as to the part under

examination in the instant case, is similarly overbroad. A

facial attack on the statute cannot be withstood if the

’.

statute may be applied to speech that is protected by the

First and Fourteenth Amendments even if such speech is

coarse or offensive. Gooding v. Wilson, supra; Lewis v. City

of New Orleans, supra. As the Court of Appeals for the Fifth

Circuit stated in Hiett v. United States, 415 F.2d 664 (5th

Cir. 1969), cert. denied, 397 U.S. 936 (1970):

The legislature cannot constitutionally use a

“blunder-buss” approach that sweeps in wide areas

of protected speech even if its goal is to eradicate

an evil undeniably caused by a smaller included

area of unprotected expression; it cannot simply

decide that “a certain kind of speech [is], itself,

harmful and unlawful.” 415 F.2d at 671.

Section 42.07(a)(1) may not be as broad as the

Virginia statute, but surely the words used in the statute

are susceptible of overly broad application due to subjective

influence. The words “vulgar,” “profane,” and “indecent”

were found to be capable of overbroad interpretation in

Walker v. Dillard, supra. One commentator has written

that: “[A] person may be convicted under the Texas stat-

ute, as it now stands, for using language he may not know

to be prohibited and by being negligent in failing to dis-

cover beforehand whether the language might ‘annoy’ or

‘alarm’ the recipient.” Olson, supra, 17 S. Tex. L.J. at 300.

Professor Walter W. Steele, Jr. has called §42.07 a

textbook case of vagueness and overbreadth. He states:

Section 42.07 requires that the recipient of the

communication be annoyed or alarmed. But the

only manner in which the recipient’s annoyance

can be known is by the recipient’s statement to

that effect. Every person has his own unique scale

’.

of annoyance, and an accurate determination of

that scale is impossible to judge. Furthermore, the

Harassment section is so broad that it includes

callers who have every right and reason to inten-

tionally and knowingly annoy or alarm the

recipient of the call. J

See Steele, “The Impact of the New Penal Code on First

Amendment Freedoms,” 38 Texas Bar Journal 245, 253

(1975) .°

The Texas harassment statute proscribes language

which is protected as well as language which is not pro-

tected by the First and Fourteenth Amendments. It is not

so narrowly drawn to be limited to “fighting words.”

Chaplinsky v. New Hampshire, 315 U.S. 568, 62 Sup.Ct. Rep.

89 (1942). Vulgar, indecent, profane, obscene, coarse and

offensive language are not, without more, subject to

criminal sanction. Cohen v. California, supra. In the words

of the Supreme Court in Cohen, “one man’s vulgarity is an-

other’s lyric.” 403 U.S. at 25. As long as the means are peace-

ful, “the communication need not meet standards of ac-

ceptability.” Organization for a Better Austin v. Keefe, 402

U.S. 415, 419, 91 Sup.Ct.Rep. 1575, 29 L.Ed. 2d 1 (1971).

Section 42.07(a)(1) proscribes coarse and offensive lan-

guage whether used peacefully or not. It is wholly subjective

in that one cannot know what language would annoy or

alarm the recipient until the recipient speaks. It seeks to

regulate speech that is protected by the First and Four-

teenth Amendments and is, therefore, facially overbroad. It

is respectfully submitted, therefore, that [42.07(a) (1), as

applied in the instant case, fails to meet the standards of

SHereafter referred to as Tex. BJ.

° >

due process in that it is unconstitutionally vague and over-

broad.

If anything, the terms “coarse” and “offensive manner”

are far more vague and indefinite than are the terms

“vulgar,” “profane,” “obscene,” and “indecent.” What was

said above regarding the latter terms is truly applicable

to the former terms. The terms “coarse” or “offensive

manner” actually vary with the different phases of society,

depending upon the fastidious, refined, or primitive views

of the community or among the particular persons when

they are uttered or when the communication takes place.

Words that are “coarse and offensive” or words used in an

“offensive manner” in one locale or setting may very well

be regarded as harmless in another and, indeed, in another

even proper.

The Court’s attention is directed to Exhibit “H,” the

Application for Writ of Habeas Corpus, for additional

authority as to why the statute, as to that part challenged,

is constitutionally deficient.

In its construction of the statute, the Majority of the

Court of Criminal Appeals, in Kramer v. State, supra, was

faced with a factual situation whereby a cast-off lover, the

Defendant, sent a postcard, addressed to her former lover,

the husband of the Complainant, with the following

message affixed to the back of the postcard:

“Baby Problem Solved

—with this beautiful

ALL METAL

CASKET-VAULT COMBINATION

CRYPT-A-CRIB

P. O. Box 11074

Cincinnati, Ohio 45211”

’%

The Majority of the Court first ruled that “a person of

ordinary intelligence can readily understand what is pro-

scribed.” “There is no room in the statute for a vindictive

or overly sensitive recipient to create an offense by his

own belief in the coarseness or offensiveness of a message.”

The Majority next rejected the contention that the

statute was overbroad, quoting from Cohen v. California,

supra, for authority.

Judge Roberts, joined by Judge Phillips, in his dis-

senting opinion, said that the word “coarse” refers to

“dirty” language, and that the phrase “in a coarse and

obviously offensive manner” was intended to replace the

terms “vulgar, profane, obscene, or indecent language.”

He said that even though the message may have been

offensive or was actually a spite message, nevertheless, it

was not “coarse” or “dirty” and therefore did not fall

within the ambit of the statute and for that reason there

was no offense. As to the question of vagueness, his Honor

said: “If it [the word ‘coarse’] can mean ‘spiteful,’ who

knows what else it can mean?” “People of common intelli-

gence must necessarily guess at its meaning, and the job

of guessing has been made harder today.” In also ruling

that the statute is grossly overbroad, His Honor also said

that “the court literally has made it an offense to send

anyone an annoying or alarming letter.” “It should go

without saying that the First Amendment protects even

annoying and alarming speech.”

The point is that in order to punish this appellant

for her bizarre activities the court has broadened

the statute into an area of speech that is protected

by the First Amendment. After today’s decision,

for example, anyone who writes a letter to a

public official in vigorous disagreement with the

official’s performance in his duties is subject to

being jailed. So are the operators of charities who

intentionally mail out alarming pictures of

starving Asian orphans in order to raise funds.

So are anti-abortion propagandists who mail

alarming pictures of aborted fetuses. Any of these

letters could be deemed “coarse and offensive”

under today’s decision.

Interestingly, His Honor, in a footnote, said: “Our mail

occasionally brings us similar diatribes from some (usually

anonymous) members of the public, but I would not have

thought before today that they could be jailed for writing

their views.”

Judge Clinton, in his dissenting opinion, joined by

Presiding Judge Onion, also pointed out in a footnote that

“some citizens may and do communicate in a coarse and

offensive manner intending all the while to annoy or

alarm.”

Members of the majority live in splendid isolation

not to have pressed upon them the strident tract

of political dissent, religious zealotry, charitable

plea, insistent solicitation, and assorted exhor-

tations and damnations — all in home or at the

front door. Annoying and aggravating though

they be, the law need not still such expressions.

In all good spirit I suggest the majority should

recognize and acknowledge them by saying that

in extending the former proscription of harass-

ment by telephone, the legislature reached out

and touched someone whose written expressions

are constitutionally protected.

Conclusion

That part of Art. 42.07(a) (1), V.A.T.P.C., prohibiting

communication by telephone in a “coarse and offensive”

manner is Constitutionally impermissible under the First

and Fourteenth Amendments to the Constitution of the

United States and, for the above and foregoing reasons,

that part of the statute should be declared unconstitutional.

Respectfully submitted,

Marvin O. TEAGUE

1314 Texas Avenue, Suite 1206

Houston, Texas 77002

(713) 222-1728

Tom S. McCorxiz

500 Katy Building

Dallas, Texas 75202

(214) 742-1411

Counsel for Petitioner

Certificate of Service

I, TOM S. McCORKLE, Counsel for Petitioner,

PARKER McVICKER, hereby certify that copies of the

above and foregoing Petition for a Writ of Certiorari to

the Court of Criminal Appeals of Texas have been mailed

to the following persons:

Hon. Mark White Hon. Joe Register

Attorney General of Texas Angelina County Attorney

Supreme Court Building County Courthouse

Austin, Texas 78711 Lufkin, Texas 75901

by placing same in the United States Mail, certified, postage

prepaid on this the day of , 1980.

/s/ Tom S. McCorkle

A-1

Appendix

EXHIBIT “A”

IN THE NAME AND BY AUTHORITY OF

THE STATE OF TEXAS

I, Lisa Fussell, being duly sworn, do state upon my oath that

I have personal knowledge, and I charge that heretofore,

and before the making and filing of this complaint, on or

about the 2nd day of July, 1979, in the County of Angelina

and State of Texas, after Parker McVicker, Defendant did

then and there intentionally communicate by telephone in

a coarse and offensive manner and by this action inten-

tionally and knowingly alarmed Lisa Fussell, the recipient

of said communication.

AGAINST THE PEACE AND DIGNITY OF THE STATE.

/s/ Lisa Fussell, Complainant

/s/ Joe Lee Register,

County Attorney,

Angelina County, Texas

A-2

EXHIBIT “B”

IN THE NAME AND BY AUTHORITY

OF THE STATE OF TEXAS:

I, JOE LEE REGISTER, County Attorney of Angelina

County, in said State, on the written affidavit of LISA

FUSSELL a competent and credible person herewith filed

in the County Court AT LAW in the County of Angelina

and the State of Texas do present unto said court that on or

about the 2nd day of July, A.D.1979, and before the making

and filing of this information, in the County of Angelina

and the State of Texas, one PARKER McVICKER, Defen-

dant did then and there intentionally communicate by

telephone in a coarse and offensive manner and by this

action intentionally and knowingly alarmed Lisa Fussell,

the recipient of said communication.

AGAINST THE PEACE AND DIGNITY OF THE STATE.

/s/ Joe Lee Register,

County Attorney,

Angelina County, Texas

*-»

A-3

EXHIBIT “C”

COUNTY COURT AT LAW

THE STATE OF TEXAS vs. PARKER McVICKER

IN COUNTY COURT AT LAW OF

ANGELINA COUNTY, TEXAS

No. 10367

October/December Term A.D. 1979

Date: 10/5, 1979

This day this cause was called for trial, and the State

appeared by her District Attorney, and the Defendant,

PARKER McVICKER, having been duly arraigned, appear-

ed in person, in open court, his counsel also being present,

and both parties announced ready for trial; and it appearing

to the Court that the Defendant, his counsel, and the State’s

attorney have agreed in writing in open court to waive a

jury in the trial of this cause and to submit this cause to

the Court; and the Court having consented to the waiver of

a jury herein, the information was read, and the Defendant

entered his plea of guilty thereto, and thereupon the said

Defendant was admonished by the Court of the conse-

quences of said plea, and the said Defendant persisted in his

plea; and it plainly appearing to the Court that the Defen-

dant is sane and that he is uninfluenced in making said

plea by any consideration of fear, or by any persuasion, or

delusive hope of pardon prompting him to confess his guilt,

the said plea is by the Court received and here now entered

of record upon the minutes of the court as the plea herein

of said Defendant.

And the Court having heard all the evidence submitted

for the State and the Defendant and argument of counsel is

A-4

of the opinion and so finds that the said Defendant is guilty

of the offense of TELEPHONE HARASSMENT (ARTICLE

42.07 TEXAS PENAL CODE).

And it appearing to the Court that the Defendant, his

counsel, and the State’s attorney have agreed in writing in

open court to waive a jury and to submit the assessment of

Defendant’s punishment to the Court; and the Court having

consented to the waiver of a jury herein, and after having

heard all the evidence submitted for the State and the De-

fendant and argument of counsel the Court is of the opinion

and so finds the said Defendant’s punishment should be by

a fine $1,000.00.

IT IS THEREFORE CONSIDERED AND ADJUDGED

by the Court that the Defendant, PARKER McVICKER, is

guilty of the offense of TELEPHONE HARASSMENT

(ARTICLE 42.07 TEXAS PENAL CODE) as found by the

Court, and that he be punished as found by the Court, that

is by a fine of $1,000.00 and that the State of Texas do have

and recover of the said Defendant the amount of such fine,

and all costs in this prosecution, for which execution may

issue; and that the said Defendant be remanded to jail to

await the further orders of the Court herein.

FILED: at 3:30 o’clock p.m., October 5, 1979.

/s/ David W. Cook,

County Court At Law

A-5.

COUNTY COURT AT LAW

THE STATE OF TEXAS vs. PARKER McVICKER

IN COUNTY COURT AT LAW OF

ANGELINA COUNTY, TEXAS

No. 10367

October/December Term A.D. 1979

Date: 10/5, 1979

This day this cause being again called, the State ap-

peared by her District Attorney, and the Defendant,

PARKER McVICKER was brought into open court in per-

son, in charge of the Sheriff, for the purpose of having the

sentence of the law pronounced in accordance with the

judgment herein rendered and entered against the said

Defendant. And thereupon the Defendant was asked by the

Court whether he had anything to say why said sentence

should not be pronounced against him, and the Defendant

answered nothing in bar thereof, he having waived time for

filing motion for new trial. Whereupon the Court proceeded,

in the presence of the said Defendant, to pronounce sen-

tence against him as follows:

It is Ordered by the Court that the Defendant,

PARKER McVICKER, who has been adjudged to be guilty

of the offense of TELEPHONE HARASSMENT (ARTICLE

42.07 TEXAS PENAL CODE) be, and is hereby sentenced

to pay a fine of ONE THOUSAND AND NO/100 ($1,000.00)

Dollars, and that the State of Texas do have and recover of

said Defendant all costs of this prosecution, for which

execution may issue against the property of said Defendant,

and the said Defendant, now being present in court, be

committed to the custody of the Sheriff of ANGELINA

A-6

County, Texas, who shall forthwith confine him in the jail

of said County to remain until he shall have purged himself

by paying said fine and all costs are fully paid.

/s/ David W. Cook, Judge

County Court At Law

FILED: At 3:30 o’clock p.m., October 5, 1979.

/s/ Paul Selman, Clerk

County Court At Law

’-*.

A-7

EXHIBIT “D”

Complaint Number 79-17

Complaint versus: Parker McVicker

Complainant: Grievance Committee No. 3B

GRIEVANCE COMMITTEE, DISTRICT 3B

STATE BAR OF TEXAS

The following Complaints have been filed against you by

the Grievance Committee of District 3B, State Bar of Texas:

(1) Such attorney has violated disciplinary Rule

Number 102(A) (3) in connection with the allegation set out

in the facts leading up to Cause Number 10,369 styled State

of Texas vs. Parker McVicker in, and on the Docket of, the

County Court at Law of Angelina County, Texas.

(2) Such attorney has violated disciplinary Rule

Number 1-102(A) (6) in connection with the allegation set

out in tke facts leading up to Cause Number 10,369 styled

State of Texas vs. Parker McVicker in, and on the Docket

of, the County Court at Law of Angelina County, Texas.

(3) Such attorney has violated disciplinary Rule

Number 1-102(A) (2) in connection with the allegation set

out in the facts leading up to Cause Number 10,950 styled

State of Texas vs. Lee J. Rawclift in, and on the Docket of,

the County Court at Law of Angelina County, Texas.

(4) Such attorney has violated disciplinary Rule

Number 1-102(A) (3) in connection with the allegation set

out in the facts leading up to Cause Number 10,950 styled

State of Texas vs. Lee J. Rawclift in, and on the Docket of,

the County Court at Law of Angelina County, Texas.

(5) Such attorney has violated disciplinary Rule

A-8

Number 1-102(A) (5) in connection with the allegation set

out in the facts leading up to Cause Number 10,950 styled

State of Texas vs. Lee J. Rawclift in, and on the Docket of,

the County Court at Law of Angelina County, Texas.

(6) Such attorney has violated disciplinary Rule

Number 1-102(A) (6) in connection with the allegation set

out in the facts leading up to Cause Number 10,950 styled

State of Texas vs. Lee J. Rawclift in, and on the Docket of,

the County Court at Law of Angelina County, Texas.

I certify that the information and statements submitted

herewith and attached hereto are true and correct.

WITNESS my hand this 20th day of November, 1979.

/s/ William Drew Perkins,

Chairman, Grievance Committee,

District 3B, State Bar of Texas

A-9

EXHIBIT “E”

BEFORE THE GRIEVANCE COMMITTEE, DISTRICT 3B

THE STATE BAR OF TEXAS

COMPLAINT AGAINST

PARKER McVICKER NO. 79-17

OF LUFKIN, TEXAS

ORDER OF SUSPENSION

BE IT REMEMBERED that a complaint was docketed

with the Grievance Committee, District No. 3B, State Bar

of Texas, against Parker McVicker, a licensed attorney and

member of the State Bar of Texas, residing and maintaining

an office at Post Office Box 1747, Lufkin, Texas 75901, by

the Grievance Committee of District 3B, as complainant,

alleging certain acts of professional misconduct on the part

of said Parker McVicker which occurred in Angelina

County, Texas. The Committee has conducted a hearing on

this complaint, at which Parker McVicker appeared and

gave testimony on the complainant, and after considering

other evidence submitted to it, the Committee has made the

following findings of fact and conclusion of law:

FINDING OF FACT

1. That Parker McVicker plead guilty in Cause Num-

ber 10,367 on the Docket of the County Court at Law of

Angelina County, Texas, styled STATE OF TEXAS VS.

PARKER McVICKER.

2. That Parker McVicker was guilty of the offense of

which he was charged in said Cause Number 10,367 on the

Docket of the County Court at Law of Angelina County,

= A-10

Texas, styled STATE OF TEXAS VS. PARKER McVICK-

ER.

3. That Parker McVicker made the telephone call as

set out in the complaint filed as Cause Number 10,367 on

the Docket of the County Court at Law of Angelina County,

Texas, as alleged.

4. That the action of the said Parker McVicker in

making such telephone call was an act involving moral

turpitude.

5. That the action of the said Parker McVicker in

making such telephone call adversely reflects upon his

fitness to practice law.

6. That the action of the said Parker McVicker in

pleading guilty in Cause Number 10,367 on the Docket of

the County Court at Law of Angelina County, Texas, ad-

versely reflects on his witness to practice law.

CONCLUSIONS OF LAW

1. That Parker McVicker violated Disciplinary Rule

Number DR 1-102(A) (3).

2. That Parker McVicker violated Disciplinary Rule

Number DR 1-102(A) (6).

II.

By reason of the aforesaid professional misconduct on

the part of Parker McVicker, the Committee is of the opin-

ion his license to practice law in the State of Texas should

be suspended for a period of twenty-four (24) months.

IT IS ACCORDINGLY ORDERED that the license of

Parker McVicker to practice law in the State of Texas be

A-1l

and the same is hereby suspended for twenty-four months

from the date upon which said Parker McVicker consents

to the rendition and entry of this Judgment of Suspension

by executing the form of consent immediately following

this Order and having his acknowledgment thereto taken

in accordance with the provisions of the Rules Governing

the State Bar of Texas. .

IT IS FURTHER ORDERED that Parker McVicker,

during the period of his suspension, shall not give or render

any services requiring the use of legal skill and knowledge,

furnish any services or advice to any other attorney, coun-

sel, or person whatsoever, appear as counsel or in any

representative capacity in any proceeding in any court or

before any administrative body, hold himself out to be a

licensed attorney by virtue of an office sign, letterhead,

business card, or display of his law license, or hold himself

out to any person as being competent to give legal advice

or counsel on any case or controversy. He shall not advise

nor counsel any person in any manner whatsoever concern-

ing the preparation of legal documents. Nothing contained

in this Order shall be construed to prohibit said Parker Mc-

Vicker from participating in the preparation of legal papers

or documents or in other matters including legal work when

such legal papers or documents are prepared or such mat-

ters participated in by him for his own proprietary interest

and any transaction involving his own property, and pro-

vided further that nothing herein contained shall be con-

strued to prohibit said Parker McVicker from doing any act

which might properly and legally be done by any other

person not licensed to practice law in the State of Texas.

IT IS FURTHER ORDERED that said Parker McVicker

surrender the law license and permanent bar card issued to

A-12

the said Parker McVicker to the Clerk of the Supreme

Court of the State of Texas.

In accordance with Article XII., Section 16(c), of the

Rules Governing the State Bar of Texas, copies of this

Judgment, together with copies of the complaint, shall be

mailed to the General Counsel of the State Bar of Texas,

the Clerk of the Supreme Court of Texas, and the Clerk of

the District Court of Angelina County, Texas.

SIGNED this ——— day of June, 1980.

GRIEVANCE COMMITTEE

DISTRICT NO. 3B

STATE BAR OF TEXAS

By:

Chairperson

CONSENT TO GRIEVANCE COMMITTEE

JUDGMENT

In connection with charges of professional misconduct

filed against me and heard by your Committee, I hereby

consent to entry of Judgment in the form submitted to me

pursuant to Article XII., Section 16(c) of the State Bar

Rules, suspending my license to practice law in the State

of Texas for a period of twenty-four months from the date

of this Consent.

SIGNED this ——— day of , 1980.

Parker McVicker

THE STATE OF TEXAS

COUNTY OF ANGELINA

’s%

A-13

BEFORE ME, the undersigned, a Notary Public in and

for said County and State, on this day personally appeared

Parker McVicker, known to me to be the person whose

name is subscribed to the foregoing instrument, and ac-

knowledged to me that the said Parker McVicker executed

the same for the purposes and considerations therein

expressed.

GIVEN UNDER my hand and seal of office this ————

day of , 1980.

Notary Public in and for

Angelina County, Texas

A-14

EXHIBIT “F”

BEFORE THE GRIEVANCE COMMITTEE,

DISTRICT 3B

THE STATE BAR OF TEXAS

COMPLAINT AGAINST

PARKER McVICKER NO. 79-17

OF LUFKIN, TEXAS

PARKER McVICKER’S OBJECTIONS TO

GRIEVANCE COMMITTEE’S FINDINGS OF FACT

TO THE HONARABLE MEMBERS OF THE GRIEVANCE

COMMITTEE, DISTRICT 3B, THE STATE BAR OF

TEXAS:

NOW COMES PARKER McVICKER, by and through

the undersigned, Counsel of Record for the said PARKER

McVICKER, who presents to the members of the said

Grievance Committee, in the above styled and numbered

cause, PARKER McVICKER’S OBJECTIONS TO GRIEV-

ANCE COMMITTEE’S FINDINGS OF FACT and, for

grounds and reasons therefore, would respectfully show

unto the Committee the following:

At the hearing held before the Grievance Committee in

the City of Lufkin, Angelina County, State of Texas, on the

5th day of June, A.D. 1980, the only “non-hearsay” evidence

presented to the Committee was by PARKER McVICKER

himself when he personally testified before the Committee.

II.

The proposed Finding of Fact of the Grievance Com-

mittee, number 2, implies, if it does not express, that this

A-15

Committee heard witnesses concerning the alleged offense

as set out in Cause No. 10,367. This, of course, is not true.

Furthermore, See Art. 12, Sec. 13, Rules Governing The

State Bar of Texas, Vol. 1A, V.A.T.C.S., and see letter at-

tached hereto, PARKER McVICKER requested that the

alleged complaint in the stated alleged criminal offense be

summoned to attend the hearing and give evidence. How-

ever, this request was not honored. Again, the only witness

who personally appeared before the Committee was

PARKER McVICKER himself.

III.

Furthermore, by the evidence adduced before the

Grievance Committee, the sole and only basis for the action

of the Committee, in bringing the accusation against the

said PARKER McVICKER, was the Complaint, Informa-

tion, judgment of conviction and sentence in Cause No.

10,367; copies of which are attached hereto.

IV.

The proposed Finding of Fact, number 4, is totally

erroneous in law in that the allegations contained in the

Complaint and Information, see attached documents, supra,

do not in any way, form or fashion, constitute an act in-

volving moral turpitude.

The proposed Finding of Fact, number 5, is totally un-

supported by the evidence presented to the Committee to

show that a telephone call allegedly made by Parker Mc-

Vicker in any way, fashion or form reflected upon the said

PARKER McVICKER’S fitness to practice law, i.e., nothing

was presented to the Committee to show a relationship

| a

A-16

between a telephone call made by PARKER McVICKER

and PARKER McVICKER’S fitness to practice law.

VI.

The proposed Finding of Fact, number 6, is totally un-

supported by evidence, real or imaginary, to show that by

pleading guilty to the alleged criminal offense it in any way,

fashion or form reflected upon the said PARKER Mc-

VICKER’S fitness to practice law. To the contrary, by the

evidence adduced at the hearing, PARKER McVICKER’S

fitness to practice law was never made an issue at the hear-

ing nor has same been questioned by anyone.

- VIL.

By virtue of the foregoing findings of fact being not

true either in whole or part, excepting numbers 1 and 3,

this renders the conclusions of law of the Committee

erroneous. In this regard, the first conclusion of law re-

flects a concYusion that PARKER McVICKER violated DR

1-102(A) (3), ie., “Engaged in illegal conduct involving

moral turpitude.” As noted, the Committee is relying upon

the actions of the said PARKER McVICKER in reference

to Cause No. 10,369, which is predicated in part upon a

complaint and information, see supra, for its actions. How-

ever, assuming that the said PARKER McVICKER did

“communicate by telephone” in a “coarse and offense man-

ner,” this in itself would not, legally, constitute moral

turpitude. In fact, see page 11.5 of the Manual provided to

members of the grievance committees by the State Bar of

Texas, it is stated: “If the complaint involves only ‘abusive

language’ or ‘cursing’ . . . then — even if this alleged mis-

conduct took place in the practice of law — the following

letter might be used.” Thereafter, in the said form letter, it

A-17

is stated, concerning the use by an attorney of “abusive

language” towards another and that this interfered with

the other’s job, health, etc.: “However, [these] matters you

complain of do not constitute a violation of the Disciplinary

Rules...”

It appears what the Committee is attempting to do is

to invoke Sec. 6 of Art. 320-1 V.A.T.C.S., which provides for

disbarment if an attorney has been convicted of a felony

involving moral turpitude. There is not, to the undersigned

attorney’s knowledge a basis for disbarment, suspension,

etc., where the offense is a criminal offense of a mis-

demeanor level or even if there is a misdemeanor involving

moral turpitude. In the case of Muniz v. State, 575 SW2d

408, the question concerned whether “jumping bond” and

“failing to appear in court” constituted a felony involving

moral turpitude and it was held it did as a matter of law.

However, that is a far cry from “communicating by tele-

phone in a coarse and offense manner” as to one person

certain language might be “coarse and offensjve” whereas,

to another the very same language might be common usage.

“Moral turpitude crimes have one thing in common and

that is to everyone the offense is morally reprehensible.”

VIII.

Next, the Committee makes a conclusion, that is based

upon its erroneous findings that PARKER McVICKER

violated DR 1-102(A) (6), i.e., “Engaged in any other con-

duct that adversely reflects on his fitness to practice law.”

It is submitted that where a grievance committee

elects to base its accusations and its rulings on an alleged

misdemeanor criminal offense, whether it does or does not

involve moral turpitude, the latter which is not present

’%

A-18

here, it is nevertheless incumbent upon that committee, in

order to warrant taking affirmative action against an at-

torney generally and specifically, PARKER McVICKER, to

show a relationship or correlation between the alleged mis-

conduct and the fitness of the particular attorney to practice

law. In other words, if an attorney were accused of a

misdemeanor offense, it could never establish a basis for

disbarment, suspension, etc., unless it were shown that the

conduct or misconduct reflected upon the attorney’s fitness

to practice law. This would also be true even if the attorney

were accused and convicted of a felony not involving moral

turpitude such as felony driving while intoxicated as there

must be a relationship or correlation between the act itself

and that it reflected upon the attorney’s fitness to practice

law. The act itself, without more, would never be sufficient.

IX.

In reference to finding of fact number 6, due to it being

a finding of fact by the Committee, it must, therefore,

somehow, relate to one and/or both of the conclusions of

law of the Committee. As to it being in reference to con-

clusion of law number 1, it is incomprehensible that the act

of an attorney, or anyone else for that matter, in pleading

guilty to a misdemeanor offense, would ever constitute

conduct involving moral turpitude. The same would be true

of conclusion of law number 2.

In sum, this Honorable Committee’s conclusion, based

upon its findings of fact, is totally dedicated to the erroneous

assumption that the misdemeanor offense for which

PARKER McVICKER was convicted is an offense involving

moral turpitude. Unquestionably, the use of “abusive,”

“coarse,” and “offensive” language, or using “curse words,”

to or in the presence of another, is not “good taste,” and

A-19

should never be condoned, but the question before this

Committee is not “good taste,” whatever that may be, but

whether the use of “coarse and offensive,” language, what-

ever that may be, to another is such that it reflects on one’s

fitness to practice law.

If the use of “coarse and offensive” language, whatever

that may be, by an attorney to another person is sufficient

for disbarment, suspension, etc., then it is submitted, based

upon the language the undersigned attorney has heard

other attorneys use, who are members of the State Bar of

Texas, then the membership of the State Bar of Texas may

be vastly depleted to the point there will no longer be a

need for grievance committees due to the small member-

ship the Bar will then have as it will be a simple matter to

merely post the names of those attorneys, in their respec-

tive cities, who use “bad language.” Cf. State of Wisconsin

v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed. 2d 515

(1971).

WHEREFORE, PREMISES CONSIDERED, PARKER

McVICKER prays that, in accordance with due process and

due course of law, as guaranteed by the Constitutions of the

United States of America and of the State of Texas, that this

Grievance Committee strike the present findings of fact,

prepare new ones, if any, and submit same to PARKER Mc-

VICKER for his approval or disapproval.

Respectfully submitted,

/s/ Marvin O. Teague

Counsel for Parker McVicker

914 Main, Suite 1101

Houston, Texas 77002

(713) 222-1728

i |

A-20

CERTIFICATE OF SERVICE

This is to certify that on this 17th day of JUNE, 1980, a

true copy of the foregoing PARKER McVICKER’S OBJEC-

TIONS TO THE GRIEVANCE COMMITTEE’S FINDINGS

OF FACT was duly served upon Honorable William Drew

Perkins at his known address as follows by certified mail,

return receipt requested mail to:

Honorable William Drew Perkins

Grievance Committee for

District 3B

Attorney at Law

P.O. Drawer 369

Lufkin, TX 75901

/s/ Marvin O. Teague

A-21

MARVIN O. TEAGUE

Attorney at Law

1101 Commerce Building

Houston, Texas 77002

June 2, 1980

Honorable William Drew Perkins

Attorney at Law

P.O. Drawer 369

Lufkin, TX 75901

RE: Grievance 79-17

Complaint against Parker McVicker

Dear Mr. Perkins:

This will acknowledge your letter to me dated May 29,

1980.

I do not know if the grievance committee has issued any

sort of summons for Ms. Lisa Gaye Fussell and if it has,

please disregard this letter. However, from what I have been

able to learn concerning the facts, I would request, on be-

half of Mr. McVicker, that the committee summon Ms.

Fussell to the hearing in order that the members of the

committee be completely informed as to what was or was

not said over the telephone on the day in question and, if so,

whether whatever was said, if anything, would or could be

the basis for a grievance accusation.

Also, if there was a “tap” placed on the telephone and

a recording of what, if any, conversation occurred, then I

think this too should be available to the committee.

Thank you for your time and consideration in this

regard. ‘

Very truly yours,

/3/ Marvin O. Teague

MOT/jap

A-22 .

EXHIBIT “G”

No. 18244-80-9

THE STATE OF ARKANSAS

PARKER McVICKER

IN THE DISTRICT COURT OF

ANGELINA COUNTY, TEXAS

JUDICIAL DISTRICT

ORIGINAL FORMAL COMPLAINT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW the Grievance Committee for District

Number 3-B, State Bar of Texas, and acting in the name of

the State of Texas, hereinafter called Plaintiff, complaining

of Parker McVicker, a resident of Angelina County, Texas,

hereinafter called Defendant, and for cause of action would

respectfully represent and show unto the Court the follow-

ing:

The Defendant is now, and has been at all times

material hereto, and was at the time of the commission of

the acts complained herein, a duly licensed attorney of the

State of Texas and a member of the State Bar of Texas. The

Defendant may be served with citation at 113 North 2nd,

Lufkin, Angelina County, Texas.

II.

This suit is brought under and by virtue of the State

Bar Act, Article 320a-1, Texas Revised Civil Statutes, and

the Rules Governing the State Bar of Texas, as adopted,

7’

A-23

promulgated and continued by the Supreme Court of Texas,

particularly (but not by way of limitation) Article XII

thereof, captioned “Discipline and Suspension of Members”.

III.

Plaintiff would show that the acts of Parker McVicker,

hereinafter detailed with more particularity, constituted

fraudulent and dishonorable conduct and were each and all

a violation of the Code of Professional Responsibility as °

would warrant McVicker’s discipline by judgment of this

Court. Such acts of professional misconduct arose out of the

following facts:

Between March, 1979 and July 3, 1979, Parker Mc-

Vicker made between twenty and thirty telephone calls to

Mrs. Pauline Fussell and Lisa Fussell. In these calls, Mc-

Vicker identified himself as “Richard” and used vulgar,

indecent, and obscene language in a coarse and offensive

manner.

This course of conduct on the part of Parker McVicker

constitutes professional misconduct in violation of the Code

of Professional Responsibility and supports allegations of

misconduct as follows:

Count One

By placing the telephone calls to Mrs. Pauline Fussell

and Lisa Fussell in which McVicker used vulgar, indecent,

and obscene language in a coarse and offensive manner, the

Defendant acted in violation of:

Disciplinary Rule (DR) 1-102(A) (3), which reads:

“A lawyer shall not:

Engage in illegal conduct involving moral turpi-

tude.”

A-24.

DR 1-102(A) (6), which reads:

“A lawyer shall not:

Engage in any other conduct that adversely reflects

on his fitness to practice law.”

That each and all, and a combination of each and all,

of the foregoing acts of misconduct on the part of Parker

McVicker constituted dishonorable conduct and a lack of

competence, skill, and professional concern as would war-

rant discipline by this Honorable Court.

WHEREFORE, PREMISES CONSIDERED, Plaintiff

prays that the Defendant be cited to appear and answer

herein, and that upon final hearing hereof, the Defendant be

REPRIMANDED, SUSPENDED, or DISBARRED as the

facts shall warrant, and the Plaintiff have such other and

further relief as may be proper and authorized by the law

and the Rules Governing the State Bar of Texas, including

all costs of court.

Respectfully submitted,

Jerry L. Zunker

General Counsel

Steven D. Peterson

First Assistant General Counsel

Gary McNeil

Assistant General Counsel

Charles W. Yett

Assistant General Counsel

Claude E. Ducloux

Assistant General Counsel

By: /s/ Charles W. Yett

State Bar Card No. 22153000

Attorney for Plaintiff

Austin, Texas 78711

A-25

EXHIBIT “H”

NO.

EX PARTE

PARKER McVICKER

IN COUNTY COURT AT LAW OF

ANGELINA COUNTY, TEXAS

APPLICATION FOR WRIT OF HABEAS CORPUS

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES PARKER McVICKER, hereinafter called

the Petitioner or Applicant, who makes, in person, and files,

by counsel, this Application for Writ of Habeas Corpus and,

for grounds therefore, would respectfully show unto the

Court the following:

The Petitioner and Applicant was charged by Com-

plaint and Information in this Honorable Court on July 3,

1979, in Cause Number 10,367, in that cause entitled The

State of Texas vs. Parker McVicker, for the alleged crime

of “telephone harassment,” and, on October 5, 1979, pur-

suant to a plea of guilty to said charge, he was assessed a

fine of One Thousand and No/100 Dollars ($1,000.00),

which was subsequently paid by Petitioner.

II.

The Petitioner and Applicant brings this Application for

Writ of Habeas Corpus to set aside the said Complaint, In-

formation and Conviction’ for the reasons that:

1See Exhibits ‘‘A”, ‘“‘B’’, and “C’’, attached hereto.

A-26

1) The portion of the statute under which the

Petitioner and Applicant was charged is un-

constitutional; and

2) The Complaint and Information do not charge

a criminal offense against the penal laws of the

State of Texas.

III.

The Petitioner and Applicant first attacks that part of

Art. 42.07, P.C., which provides that for the criminal offense

of “Harassment,”

(a) A person commits an offense if he intentional-

ly:

(1) communicates by telephone... ina

coarse and offensive manner and by

this action intentionally, knowingly,

or recklessly . . . alarms the recipient

or intends to .. . alarm the recipient.

IV.

In this regard, the Petitioner and Applicant would show

that Due Process and Due Course of Law, as guaranteed by

the Fourteenth Amendment to the Constitution of the

United States of America and by Art. I, Sec. 19, of the

Constitution of the State of Texas require that penal stat-

utes be sufficiently specific to give fair notice of what

conduct is forbidden or required in order to be held con-

stitutional. Furthermore, the quoted part of said statute,

see supra, is unconstitutionaily and impermissibly vague

and overbroad that deprives the Petitioner of due process

and due course of law and, further, said statute infringes

on conduct protected by the First Amendment to the United

7’.

A-27

States Constitution as well as Art. I, Sec. 8 of the Texas

Constitution, and makes criminal otherwise protected

conduct.

The part of the statute in question is not limited to

certain prescribed types of unreasonable conduct but it

applies to any telephone call made “in a coarse and offensive

manner.” To one person a communication over the tele-

phone might very well be construed to be “in a coarse and

offensive manner,” but to another person the telephone call

might be made with the intention of causing a slight an-

noyance in order to emphasize an idea or opinion, or to

prompt a desired course of action that one is legitimately

entitled to ask. For example, under this provision of the

statute, a consumer could make a telephone call to express

his dissatisfaction over the performance of a product or

service; a call by a businessman disturbed with another’s

failure to perform a contractual obligation; by an irate

citizen, perturbed with the state of public affairs, who

desires to express his opinion to a public official; or by an

individual bickering over family matters, and ali such per-

sons would thus be guilty of a crime. First Amendment

protection is not limited to amiable communications. This

part of the statute, by its very terms, would proscribe any

telephone call made with intent to alarm, regardless of its

purpose or nature. It would daily subject countless callers

to the stigmatization of the criminal process at the election

of their listeners who might perceive the call as having

been made in “a coarse and offensive manner with the

intent to alarm.” This part of the statute makes criminal

conduct that which is protected by the First and Fourteenth

Amendments of the United States Constitution, and the like

A-28

provisions of the Texas Constitution, and is, therefore,

overly broad.

In sum, this part of the statute prohibits speech that is

beyond the pale of government regulation.

Some examples, in addition to those cited, should

suffice. If “alarm” means to “arouse to a sense of danger,”

then that part of the statute would make it criminal for one

person to call another, if done in a “coarse and offensive

manner,” to warn that persons of an impending storm,

hurricane, tornado, fire, etc.

Earlier cases of the Court of Criminal Appeals, such as

Alobaidi v. State, 433 SW2d 440 (1968); Darnell v. State,

161 SW 971 (1913); LeBlanc v. State, 441 SW2d 847 (1969);

Courtemanche v. State, 507 SW2d 545 (1974); Schuster v.

State, 450 SW2d 616 (1970); and Collection Consultants,

Inc. v. State, 556 SW2d 787 (1977), are either not in point

or are not applicable to the part of the statute under dis-

cussion.

It should be noted what the Petitioner’s contentions

do not encompass:

1. It does not encompass Sec. 42.07(a) (1), as to

that part that provides that a person commits

an offense if he intentionally communicates by

telephone or in writing in vulgar, profane,

obscene, or indecent language, and

2. It does not encompass subsection (2) or sub-

section (3).

The sole issue here involves that part of the statute

which prohibits — a communication by telephone in a

“coarse and offensive manner” and by such action “inten-

*-.

A-29

tionally and knowingly alarmed” the recipient. See and

compare Olson, “The Texas Harassment Statute — is it

Constitutional? Walker v. Dillard,” 17 So.Tex. L. J. 283, and

Steele, “The Impact of the New Penal Code on First Amend-

ment Freedoms,” 38 Tex. B. J. 245, 253 (1975).

What do the words “coarse and offensive” mean? Due

process requires that “laws must give the person of ordinary

intelligence a reasonable opportunity to know what is pro-

hibited, so that he may act accordingly.” Grayned v. City of

Rockford, 408 U.S. 104, 108 (1972). In United States v.

Harriss, 347 U.S. 612 (1954), the Supreme Court of the

United States declared that the underlying principle in

cases involving vague statutes is that “no man shall be held

criminally responsible for conduct which he could not

reasonably understand to be proscribed.” 347 U.S. at 617.

The test to be applied is “whether the language conveys

sufficiently definite warning as to the proscribed conduct

when measured by common understanding and practices.”

Jordan v. DeGzeorge, 341 U.S. 223, 231 (1951). When first

amendment rights and freedoms are involved, however, a

stricter standard is to be applied. See Ashton v. Kentucky,

384 U.S. 195 (1966); Smith v. California, 361 U.S. 147

(1959); Scull v. Virginia, 359 U.S. 344 (1959).

In the instant case the statute at issue fails to give suf-

ficient warning as to the proscribed conduct when measured

by common understanding.

Words such as “coarse and offensive” do not give a

person of ordinary intelligence a reasonable opportunity to

know what is prohibited. The meaning of these terms

“depends upon the moral idiosyncracies of the persons who

compose a particular court or jury. The standard of crime

can be ever varying and the courts on appeal may be con-

A-30

stantly forced to become instruments of moral reform

whenever there is a fluctuation in moral sentiment.” Olson,

supra, 17 S.Tex.L.J. at 298.

Of equal concern with the void for vagueness doctrine

is the problem of overbreadth. A statute which proscribes

activities which are protected under the First and Four-

teenth Amendments, and Art. I, Sec. 8, as well as those

activities which are not protected is overbroad and uncon-

stitutional. Overbroad statutes have a “chilling effect” that

tends to deter the exercise of protected speech.

This part of the statute is simply too vague, indefinite,

inadequate and uncertain to withstand constitutional mus-

ter. These words have no fixed meaning. They are so vague

and indefinite that they cannot, by themselves, imply a

definite offense. Words to be construed as “coarse and

offensive” vary with the different phases of society, de-

pending upon the fastidious, refined, or primitive views of

the community or among the particular persons when they

are uttered. Words that are “coarse and offensive” in one

place might be regarded in another harmless and in another

" even proper. See Irven v. State, 136 SW2d 608 (1940).

This part of the Texas harassment statute under exami-

nation in the instant case is similarly overbroad. A facial

attack on the statute cannot be withstood if the statute may

be applied to speech that is protected by the First and Four-

teenth Amendments. Gooding v. Wilson, supra; Lewis v.

City of New Orleans, supra. As the Court of Appeals for the

Fifth Circuit stated in Hiett v. United States, 415 F.2d 664

(5th Cir. 1969), cert. denied, 397 U.S. 936 (1970):

“The legislature cannot constitutionally use a

‘blunder-buss’ approach that sweeps in wide areas

A-31

of protected speech even if its goal is to eradicate

an evil undeniably caused by a smaller included

area of unprotected expression; it cannot simply

decide that ‘a certain kind of speech is, itself,

harmful and unlawful.’ ”

415 F.2d at 671 (footnote omitted).

Under Section 42.07(a)(1), the words used in the

statute are susceptible of overly broad application due to

subjective influence. One commentator has written that

“[a] person may be convicted under the Texas statute, as

it now stands, for using language he may not know to be

prohibited and by being negligent in failing to discover

beforehand whether the language might ‘annoy’ or ‘alarm’ .

the recipient.” Olson, supra, 17 S.Tex.L.J. at 300.

Professor Walter W. Steele, Jr. has called §42.07 a

textbook case of vagueness and overbreadth. He states:

Section 42.07 requires that the recipient of the

communication be annoyed or alarmed. But the

only manner in which the recipient’s annoyance

can be known is by the recipient’s statement to that

effect. Every person has his own unique scale of

annoyance, and accurate determination of that

scale is impossible to judge. Furthermore, the

Harassment section is so broad that it includes

callers who have every right and reason to inten-

tionally and knowingly annoy or alarm the

recipient of the call.

Steele, “The Impact of the New Penal Code on First Amend-

ment Freedoms,” 38 Tex.B.J. 245, 253 (1975).

This part of the Texas harassment statute proscribes

A-32

language that is protected as well as language that is not

protected by the First and Fourteenth Amendments and

Art. I, Sec. 8 of the Texas Constitution. It is not so narrowly

drawn to be limited to “fighting words.” Chaplinsky v. New

Hampshire, 315 U.S. 568 (1942). In the words of the

Supreme Court in Cohen, “one man’s vulgarity is another’s

lyric.” 403 U.S. at 25. As long as the means are peaceful,

“the communication need not meet standards of accepti-

bility.” Organization for a Better Austin v. Keefe, 402 US.

415, 419 (1971). Section 42.07(a) (1) proscribes language

whether used peacefully or not. It is wholly subjective in

that one cannot know what ianguage would annoy or alarm

the recipient until the recipient speaks. It seeks to regulate

speech that is protected by the First and Fourteenth

Amendments and is, therefore, facially overbroad. See also

Annotation, “Validity, Construction, and Application of

State Criminal Statutes Forbidding Use of Telephone to

Annoy or Harass,” by Wayne F. Foster, 95 A.L.R. 3d com-

mencing at page 411.

Thus, for the above and foregoing reasons, the Court

should declare the above provisions of Art. 42.07, P.C. un-

constitutional, null and void.

VI.

The Complaint and Information, which charged the

Petitioner and Applicant with an alleged criminal wrong,

is unconstitutional, defective, null and void, in that it is the

constitutional right of an accused to be informed of the

nature and cause of the accusation against him and he is

entitled to a plain statement of the charge against him. No

Complaint and Information, omitting key language alleged-

ly used by the defendant, can ever be sufficient to state a

criminal offense under the statute. Here, the Petitioner was

A-33

not told how the communication was done in a “coarse and

offensive manner” nor was he told how this act “alarmed”

the recipient. Without stating the “how” and the “words”

used that would constitute “coarse and offensive manner,”

the mere tracking of the statute is not sufficient to state a

criminal wrong. See Haecker v. State, 571 SW2d 920.

Further, this complaint and information is so vague and

lacking in acceptable standards of guilty conduct as to be

incapable of giving a person of ordinary intelligence fair

notice that his contemplated conduct is forbidden. See

Palmer v. City of Euclid, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.

2d 89 (1971); United States v. Harris, 347 U.S. 612, 74 S.Ct.

808, 98 L.Ed. 989 (1954); Lanzetta v. New Jersey, 306 US.

451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); Cole v. Arkansas, 68

S.Ct. 514, 333 U.S. 196, 92 L.Ed. 644 (1948); and Voelkel v.

State, 501 SW2d 313.

Also, Article 21.04, C.C.P., provides that: “The certainty

required in an indictment is such as will enable the accused

to plead the judgment that may be given upon it in bar of

any prosecution for the same offense.” See also Art. I, Sec.

10, Texas Constitution. The Complaint and Informantion in

this cause is in such form that a valid legal judgment of

guilt cannot be based thereon.

The conclusionary statement that the “Defendant did

then and there intentionally communicate by telephone in

a coarse and offensive manner and by this action inten-

tionally and knowingly alarmed Lisa Fussell, the recipient

of said communication,” without stating what words were

spoken or said and how the communication alarmed the

recipient of said communication is so deficient as to fail

under both due process as well as due course of law. See also

American Plant Food Corporation v. State, 508 SW2d 598.

A-34

It is the intent of Article I, Section 10 of the Texas Consti-

tution and of the Fourteenth Amendment to the United

States Constitution that an accused in a particular case be

given sufficient information upon which he may prepare

his defense and this information must come from the face

of the Complaint and Information. See Terry v. State, 471

SW2d 848; Baker v. State, 58 SW2d 534; and Voelkel v.

State, 501 SW2d 313. If no offense has been properly alleged,

then it will not support a valid conviction and may be at-

tacked collaterally. See Standley v. State, 517 SW2d 538.

Thus, for the above and foregoing reasons, if no other,

the conviction of the Petitioner and Applicant is null and

void and should be set aside and held for naught.

PRAYER

WHEREFORE, Petitioner prays that this Honorable

Court order the Respondent to show cause why the Writ

should not be granted and to order production by the State

of such papers, transcripts, statement of facts, and other

records of this Cause as may be necessary for proper con-

sideration of the issues involved, and to conduct a plenary

hearing as may be necessary for a determination of this

cause and, after said hearing, grant the relief the Petitioner

and Applicant seeks by holding the said part of Art. 42.07,

P.C., unconstitutional, and by further holding the Complaint

and Information is null and void.

Respectfully submitted,

/s/ Marvin O. Teague

Attorney at Law

914 Main, Suite 1101

Houston, “exas 77002

(713) 222-1728

7 >

A-35

THE STATE OF TEXAS )

COUNTY OF ANGELINA )

BEFORE ME, the undersigned authority, on this day

personally appeared PARKER McVICKER who, being by

me duly sworn, upon oath, says that he is the Petitioner in

the above and foregoing petition, that he has read said peti-

tion and the factual allegations of same are true and correct.

Parker McVicker

SUBSCRIBED AND SWORN to before me by the said

PARKER McVICKER, this day of , 1980,

to certify which witness my hand and seal of office.

Notary Public in and for

Angelina County, Texas

My Commission Expires:

A-36.

CERTIFICATE OF SERVICE

I, MARVIN O. TEAGUE, Attorney for Petitioner,

PARKER McVICKER, hereby certify that copies of the

above and foregoing Application for State Post-Conviction

Writ of Habeas Corpus, have been mailed to the following

persons:

Hon. Mark White Hon. Joe L. Register

Attorney General County Attorney

Supreme Court Building Angelina County, Texas

Austin, TX 78711 Courthouse

Lufkin, TX 75901

Hon. Gerald Goodwin

District Attorney

Angelina County, Texas

Courthouse

Lufkin, TX 75901

by placing same in the United States Mail, certified, postage

prepaid, on this the day of , 1980.

Marvin O. Teague

=”

A-37

EXHIBIT “I”

IN THE COUNTY COURT AT LAW,

ANGELINA COUNTY, STATE OF TEXAS

EX PARTE )

) CAUSE NO. 10367

PARKER McVICKFR )

APPEARANCES

For Petitioner:

Mr. Marvin Teague

Attorney at Law

Houston, Texas

For Respondent:

Mr. Joe Register

County Attorney

Lufkin, Texas

PROCEEDINGS

In a post-conviction writ of habeas corpus hearing held

on September 2nd, 1980, in Lufkin, Texas, before the

honorable David M. Cook, Angelina County Court-At-

Law-Judge, the following proceedings were had and

testimony adduced:

THE COURT: This is a hearing in Criminal Cause No.

10,367, styled Ex Parte Parker McVicker. The record will

reflect that Mr. Marvin Teague is present as movant, and

Mr. Joe Register is present as the County Attorney.

Mr. Teague, you may proceed.

MR. TEAGUE: Thank you. If the Court please, we would

7’ >

A-38

first request permission to call the Clerk of the Court and

have that person bring the file pertaining to Cause No.

10,367.

THE COURT: You can do so if you wish, but I have the

Clerk’s file with me. But if you need the Clerk to testify —

MR. TEAGUE: Essentially, all I wanted to do is to prove it

up, unless Mr. Register might stipulate to that.

MR. REGISTER: I think we can stipulate that that is the

file of the County Clerk’s Office, and the Court’s file.

MR. TEAGUE: Could we have this marked as Petitioner’s

Exhibit No. 1, please?

MR. REGISTER: We would not object to a copy of the file

being made and the copy being marked as the exhibit.

THE COURT: Any objection, Mr. Teague, to a copy?

MR. TEAGUE: No, sir. Substituting a copy would be fine,

Your Honor.

(WHEREUPON PETITIONER’S EXHIBIT NO. 1

WAS MARKED FOR IDENTIFICATION)

MR. TEAGUE: At this time, if the Court please, we would

offer into evidence what has been marked as Petitioner’s

Exhibit No. 1, which contains the entire file in reference to

Cause No. 10,367, entitled The State of Texas vs. Parker

McVicker, and with the agreement that copies may be

made thereof.

MR. REGISTER: Respondent has no objections.

THE COURT: So admitted at this time.

MR. TEAGUE: Judge, we would have one request that as

a result of the delay in the mail, it seems like the original of

*>.

A-39

the application that’s on file with the Court did not get up

here for about two or three weeks for some reason.

As such, we went ahead and sent a copy of the original

of the application and we have the original with us and it

is in all things identical to the one on file, because it is the

original, we request permission to substitute the original

that we have for the copy that is on file.

MR. REGISTER: No objection.

(WHREUPON A BRIEF DISCUSSION AT THE

BENCH TOOK PLACE)

MR. TEAGUE: If I’m correct, the Court has given it the

same cause number as in the original?

THE COURT: Right.

MR. TEAGUE: May I speak to counsel for a minute?

THE COURT: Sure.

MR. TEAGUE: We have an agreement and stipulation by

and between counsel for the Petitioner, myself, and Mr.

in that if Parker McVicker were called to testify in this

cause, the evidence would show that he is one and the same

Parker McVicker as the Parker McVicker named in Cause

No. 10,367, entitled The State of Texas vs. Parker McVicker,

and as reflected by Petitioner’s Exhibit No. 1 that has been

admitted into evidence.

MR. REGISTER: So stipulated.

MR. TEAGUE: Mr. McVicker, is that our agreement and

stipulation?

MR. PARKER McVICKER: That’s fine. Yes.

-*%

* >

A-40.

MR.. TEAGUE: Judge, we have one other matter that we

need to bring to the attention of the Court, however.

..._ It’s in reference to the showing of either collateral dis-

abilities or collateral consequences of the conviction itself.

~~ Section 19 of the State Bar Grievance Rules provides

that the proceedings that are held shall be kept in private

and shall be kept private. —

I’m not sure exactly what that means, but without

running into any sort of risk with reference to those rules,

we have prepared a sealed envelope memorandum pertain-

ing to those rules in order to show the issue of collateral

consequences or collateral disabilities as I think we must do.

I bring that to the attention of the Court. I don’t know

how at best it should be handled. I think this would be

primarily for appeal purposes, should the case be appealed,

so the appellate court would have the necessary documents

pertaining to what has gone on in reference to the grievance

committee.

I would defer to the Court to the calamity that I find

myself in. The rule says, “the proceedings shall be kept

‘private”. And without going into those proceedings this is

‘the best I’ve been able to come up with as far as being able

to perfect the record on the thing.

THE COURT: Mr. Teague, I don’t know of any way. If

they are introduced as an exhibit here, then they would

become part of the public proceedings.

MR. TEAGUE: Well, unless the Court ordered the docu-

ments sealed and simply made a part of the record itself,

should there be an appeal.

A-41

THE COURT: I wouldn’t be inclined to do that.

When they say that the proceedings should be private,

I’m in agreement and aware of that, but any proceedings

that are held that relate to it or any part of it being con-

ducted in private or sealed record — Any response Mr.

MR. REGISTER: Judge, is it the intent of the Petitioner to

offer this as an exhibit in this case?

MR. TEAGUE: Yes.

MR. REGISTER: We object. I don’t see how that could be

offered without first of all me viewing the same. And if I

view the same then it’s part of the file and if it’s part of the

file, then it’s part of the public record.

I think I’m going to object to it as being immaterial to

the writ anyway.

MR. TEAGUE: Well, I think the Court understands what

my fear is as far as who might or might not see what we

have prepared.

THE COURT: For the record, Mr. Teague, you’ve made

every diligent effort to comply with what someone might

interpret the State Bar’s rules to mean. Certainly you're not

deliberately violating any rules of ethics there.

MR. TEAGUE: We would call Mr. McVicker, Your Honor.

x* * *

PARKER McVICKER, having been sworn by the

Court to tell the truth and nothing but the truth, testified

upon his oath as follows: -

A-42

EXAMINATION

BY MR. TEAGUE

Q. For the record would you please state your full

name?

A. Parker McVicker.

Q. And Mr. McVicker, you are the Petitioner on the

application in the cause pending before the Court

at this time, are you not?

A. Yes.

Q. Now, I'll ask you whether or not you are the one

and the same Parker McVicker who is named in a

complaint bearing number 79-17?

A. Yes.

Q. All right. And has a grievance complaint made

against you whereby certain allegations were made

concerning a conviction in Cause No. 10,367?

A. Yes.

Q. And I'll ask you whether or not in reference to that

complaint, is it still pending at this time?

A. Yes.

Q. It has not been finally adjudicated?

A. No.

Q. And in refereonce to or pursuant to a hearing before

a lecal Grievance Committee, was the conviction in

Cause No. 10,367 used in reference to certain find-

ings of fact that a local Grievance Committee made?

A. Yes.

A-43

Q. And is it not a fact that that conviction in Cause No.

10,367 has been used as a basis for the Grievance

Committee’s complaint?

A. Yes.

Q. And at this time do you know where the matter is

presently pending?

A. Well, not rightly; no. I think it’s pending —

Q. Well, let me ask —

A. I believe the local committee has —

Q. Okay. Let me ask it this way. Have you received

any notification that the matter is now pending in

the Office of the General Counsel of the State Bar

of Texas?

A. That’s correct. I received information that he has

been awarded the proxy of the local committee to

do what he sees fit on it.

MR. REGISTER: Your Honor, we object at this time to the

line of questioning because it’s.leading and irrelevant to

the writ of habeas corpus that is filed with this Court.

THE COURT: For the time being the objection is overruled.

Proceed.

MR. TEAGUE: We pass the witness, Your Honor.

THE COURT: Any questions, Mr. Register?

MR. REGISTER: No questions.

THE COURT: Thank you, Mr. McVicker, you may step

down.

MR. TEAGUE: May I have a few moments, Your Honor?

’*%

A-44

THE COURT: Yes.

MR. TEAGUE: If the Court please, that is all the evidence

that the Petitioner and applicant has in reference to the

application, and we would rest at this time.

THE COURT: Thank you, Mr. Teague. Mr. Register?

MR. REGISTER: No, sir. We have no testimony in this case

at all other than comments after the movant makes his

comments.

THE COURT: Counsel wish any arguments or statements?

MR. TEAGUE: Yes, Your Honor.

If the Court please, Mr. Register, we would make the

following opening comments rather than be duplicitous as

to what is set out in the application of the writ of habeas

corpus.

I think the Court very well understands our position

from what we’ve said in the application concerning the

statutes as well as the complaint and information.

As to the relevancy of the pending action before the

State Bar of Texas or the General Counsel of Texas of the

State Bar as well as the Grievance Committee of the State

Bar of Texas, we would simply refer the Court to a couple

of cases.

As far as jurisdiction goes, I think the Court is well

aware of the case of Carafus vs. Lavalle. It’s 391 U.S. 234,

88 Supreme Court Reports, 1556 and 20 Lawyer’s Edition,

Second, 554.

That case came down in 1968, and basically stands for

the proposition that even though a person has completed

his or her sentence that nevertheless the person can still

°.

A-45 ‘

complain if he or she is sustaining or receiving so-called

collateral disabilities as a result of that sentence.

I think the Court is aware that previously that a person

could not make such an attack where they had served out

their respective sentences.

The nearest case I’ve found concerning this is a case

from the Court of Criminal Appeals that I mentioned in

Clark vs. State. I don’t have the citation but it’s No. 60073,

of May 16th, 1979. This involved an inmate who was making

a complaint about a conviction on the basis that this was

effecting or depriving him from obtaining parole from the

State of Texas.

The Court of Criminal Appeals ruled in that case that

that constituted a collateral conseq'ence or a collateral dis-

ability and therefore, the individual was entitled to pursue

his point.

In a case out of the Fifth Circuit of Mathews vs. Florida

which probably comes closer to our fact or situation than

any I’ve been able to find. It’s 463, Federal Second, 679.

There an individual was assessed a jail term as well as

a fine. He served out the jail time and paid the fine. How-

ever, as a result of that conviction he lost “points on his

driver’s license record.” Apparently, in the State of Florida

for that particular offense the individual was penalized by

virtue of his driver’s license and his driver’s license report.

So therefore, he came forward and filed a writ chal-

lenging the validity of the conviction for which he had

already served his time and already paid his fine. And in

there the Court said that in addition to the actual finding

of loss and the precarious position in which his driver’s

A-46

license had now been placed, that Mathews may very well

have sustained the same repercussions effecting his career

and his reputation that compelled the Supreme Court to

reach its conclusion.

I think essentially the complaint was that he was tried

without a lawyer rendering and making the conviction void.

I don’t think anyone could seriously argue, if the Court

please, that where we have an individual who is licensed as

a lawyer whereby a conviction is being used to take action

towards that license, that that in itself would not constitute

a collateral disability or a collateral consequence.

So in summary, if the Court please, I see no question

as far as this Court having jurisdiction to act on what is

before the Court in the application of writ of habeas

corpus.

I submit that based on the Supreme Court decision of

Carafus vs. Lavalee as well as the cases that have followed

Carafus, that the Court does in fact have jurisdiction.

Lastly, I would simply like to read briefly a quote from

Carafus that the Supreme Court stated in the opinion; and

that is “It is clear that Petitioner’s cause is not moot. In

consequence of his conviction, he cannot engage in certain

businesses, he cannot serve as an official of a labor union

for a specified period of time, he cannot vote in any election

held in New York State, he cannot serve as a juror. Because

of these ‘disabilities or burdens which may flow from’

Petitioner’s conviction, he has a substantial stake in the

judgment of conviction which survives the satisfaction of

the sentence imposed on him.

“On account of these ‘collateral consequences’, the case

~ is not moot.”

A-47

As far as the challenges made to the complaint and in-

formation as well as the statute, I think we have set it out

in the application; and we would at this time submit the

matter to the Court.

THE COURT: Thank you, Mr. Teague. Mr. Register?

MR. REGISTER: Just a brief comment to Mr. Teague’s

statements to the Court.

First of all, it would be my opinion based on the law of

the State of Texas and from reading the Code of Criminal

Procedure that this is not the way to perfect one’s appeal

and to attack a statute for the reason that it is unconstitu-

tional.

In this case here I would urge the Court to review the

procedure in perfecting these appeals.

The man in this case has paid his fine. He did not re-

ceive a jail sentence; and under the time that he had to

perfect his appeal he has not perfected that appeal. And it

would be my opinion of the statutes and all the cases in

our State and referring to the Code of Criminal Procedure,

that this Court is without jurisdiction either to grant or to

deny this writ of habeas corpus and the relief requested

therein. And as to the collateral consequences of the pro-

ceeding that Mr. McVicker went through, I think you have

a little bit different situation with this case here, Judge;

based on the failure of Mr. McVicker, who is a lawyer and

should have known by his entering a plea of guilty to the

charge that this would be a possibility.

I think it’s a case of after the mule is out of the barn,

so to speak, he’s trying to shut the door. I think his timing

is a little short in accomplishing this purpose.

A-48

We urge the Court to find there is no jurisdiction even

to consider this writ and that the same should be dismissed.

THE COURT: Do you have any final statements, Mr.

Teague?

MR. TEAGUE: Judge, just briefly in reference to Mr.

individual fails to appeal his or her conviction, then that

person has forever waived attacking the validity of that

conviction for that very reason.

I submit that that has not been the law, at least since

1968 when Carafus was handed down by the Supreme

Court of the United States. And interestingly if an indi-

vidual should pay, if there’s a fine assessed that is the only

punishment assessed, and the individual goes in and pays

the fine, then that person cannot appeal, as the Court well

knows, and the appeal would be dismissed if he or she tries

to appeal.

However, the cases are legion where a person has been

tried without counsel and was indigent and did not waive

counsel and did not appeal his or her conviction, and came

back later on either with a post-conviction habeas corpus

or with a State habeas corpus or a Federal habeas corpus

and succeeded in his or her contentions.

I think generally the rule is that you can come back

with a writ of habeas corpus to attack the conviction if the

conviction is in fact attackable.

I think as I mentioned since 1968, the Supreme Court

as well as the Court of Criminal Appeals as well as the 5th

Circuit has taken a very liberal view as to what constitutes

A-49

or does not constitute collateral disabilities or collateral

consequences.

And I think the case of Mathews vs. Florida is very

much a point. There, just as in our case, a fine was assessed

and the fine was paid. Apparently there was no appeal in

that conviction and an individual nevertheless was permit-

ted and did come back via a writ of habeas corpus.

So I think in response to Mr. Register’s argument as to

the mootness question, I think it’s simply answered by the

cases that have come down at least in the last 12 years.

I believe that’s all I have to say, Your Honor.

THE COURT: Thank you, Mr. Teague.

This afternoon it’s the finding of .e Court that jurisdic-

tion is not proper in this matter in this Court and that

jurisdiction lacks; and therefore the writ is dismissed at

this time.

Thank you, gentlemen.

MR. TEAGUE: For the purpose of the record, could we

note our exception and we would give notice of appeal to

the Court of Criminal Appeals concerning the Court’s

ruling?

THE COURT: Yes, sir. And the record will reflect that.

MR. TEAGUE: Thank you.

x *« *

*-%

A-50 .

THE STATE OF TEXAS:

COUNTY OF ANGELINA:

. I, MICHAEL KING, OFFICIAL COURT REPORTER

for the County of Angelina, State of Texas, do hereby

certify that the above and foregoing 24 pages of typewritten

manuscript constitute a true and accurate record of the

proceedings had and testimony adduced at the Angelina

County Court-At-Law Court; Lufkin, Texas.

GIVEN UNDER MY HAND AND SEAL OF OFFICE

on this the 8th day of September, 1980.

/s/ Michael King

Official Court Reporter

for Angelina County

We, the undersigned attorneys of record hereby agree

that the foregoing pages contain a full, true, and correct

Statement of Facts upon said trial.

Attorney for Petitioner Attorney for Respondent

Examined, approved, and ordered filed as the Official

Statement of Facts on the Habeas Corpus Hearing in Cause

No. 10,367, styled Ex Parte, Parker McVicker.

/s/ David M. Cook

Judge Presiding

DATE: Sept. 8, 1980

The following 18 pages of exhibits constitute:

PETITIONER’S EXHIBIT NO. 1

A-51

EXHIBIT “J

NO.

EX PARTE PARKER McVICKER

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

APPLICATION FOR WRIT OF HABEAS CORPUS

TO THE HONORABLE JUDGES OF SAID COURT:

NOW COMES PARKER McVICKER, hereinafter called

the Petitioner or Applicant, who makes, in person, and

files, by counsel, this Application for Writ of Habeas

Corpus and, for grounds therefor, would respectfully show

unto the Court the following:

The Petitioner and Applicant was charged by Com-

plaint and Information in the County Court at Law of

Angelina County, Texas, on July 3, 1979, in Cause Number

10,367, in that cause entitled the State of Texas vs. Parker

McVicker, for the alleged crime of “telephone harassment,”

and, on October 5, 1979, pursuant to a plea of guilty to said

charge, he was assessed a fine of ONE THOUSAND AND

NO/100 DOLLARS ($1,000.00), which was subsequently

paid by Petitioner.

II.

The Petitioner and Applicant brings this Application

for Writ of Habeas Corpus to set aside the said Complaint,

‘The exhibits attached to the application, due to duplicity, have been

deleted.

A-52

Information and Conviction’ for the reasons that:

1) The portion of the statute under which the

Petitioner and Applicant was charged is un-

constitutional; and

2) The Complaint and Information do not charge

a criminal offense against the penal laws of

the State of Texas.

III.

Subsequent to said conviction, on or about the 20th day

of November, A.D., 1979, the Chairman of the Grievance

Committee, District 3B, State Bar of Texas, in its Cause

Number 79-17, filed a complaint against the Petitioner

which complaint was predicated upon the aforesaid convic-

tion. On June 5, 1980, a hearing on said complaint was con-

ducted. As a result of the hearing, certain unfavorable

recommendations were made by the Grievance Committee

and the matter is now pending with the General Counsel

of the State Bar of Texas in Austin, Texas. Due to Section

19 of the State Bar Grievance Rules, which provides the

proceedings of the grievance committee shall be kept

private, none of the documents pertaining to the actions of

the Grievance Committee are attached hereto.

On September 2, 1980, the convicting Court, Honorable

David Cook Presiding, pursuant to an Application for Writ

of Habeas Corpus being filed in that Court, a copy of which

is attached hereto and made a part hereof for all purposes of

this Application,’ conducted a hearing on said Application. A

transaction of the hearing, as well as the exhibits intro-

duced, is attached.*

2See Exhibit ‘“D’’, attached hereto.

1See Exhibits ‘‘A’”’, “B’’, and ‘‘C’’, attached hereto.

®See Exhibit ‘‘E”, attached hereto.

A-53

At the conclusion of said hearing, the trial court judge

ruled that the Court did not have jurisdiction of the cause

and dismissed the application for writ of habeas corpus. See

Phelper v. State, 433 SW2d 897; Ex parte Brewer, 452 SW2d

452.

The Petitioner and Applicant therefore invokes the

original jurisdiction of this Honorable Court, See Art. 5,

Sec. 5, of the Constitution of the State of Texas, as he has

no other remedy at law to challenge his conviction.

IV.

Due to the fact that Petitioner is suffering collateral

consequences or collateral disabilities as a result of his

conviction, the issue regarding the validity of his conviction

is not moot. As the Supreme Court said in Carafas v. La

Valle, 391 U.S. 234, 237-38:

It is clear that petitioner’s cause is not moot. In

consequence of his conviction, he cannot engage in

certain businesses; he cannot serve as an official

of a labor union for a specified period of time; he

cannot vote in any election held in New York State;

he cannot serve as a juror. Because of these “dis-

abilities or burdens (which) may flow from”

petitioner’s conviction, he has “a substantial stake

in the judgment of conviction which survives the

satisfaction of the sentence imposed on him.” .. .

On account of these “collateral consequences,” the

case is not moot.

Recently, the Fifth Circuit, in Matthews v. Florida, 463

F.2d 679 (1972), ruled that Carafas, supra, applied to a

situation in which a jail term was levied and served and

fines were assessed and paid. In addition to the punishment

A-54

assessed, the petitioner there lost “points” on his driver’s

license. The Court noted, at page 681:

“In addition to the actual financial loss and the

precarious position in which his driver’s license

has now been placed, Matthews may very well have

sustained the same ‘repercussions affecting his

career and his reputation’ that compelled the

Supreme Court to reach its conclusion in Arger-

singer.”

This Honorable Court, as well, has had occasion in the

past to discuss the issue of “collateral consequences” or

“collateral disabilities.” See Clark v. State, No. 60,073, May

16, 1979, where Judge Roberts discussed this issue, citing

Ex parte Walters, 566 SW2d 622, and Ex parte Harp, 561 SW

2d 180, for authority, and ruled that merely because the

Petitioner in that cause had served his sentence that this

did not render the issue moot because of the serious col-

lateral consequences arising from a felony conviction which

Petitioner was then attacking.

In this respect, the Petitioner is a licensed attorney of

the State Bar of Texas. Due to the conviction he suffered,

it is now being used to take action against him by the State

Bar of Texas. Unquestionably, see Matthews, supra, he is

suffering collateral disabilities or collateral consequences

from this conviction. Thus, this Honorable Court has

jurisdiction over this cause.

There are only two (2) questions in this cause, i.e.:

1) Is that part of the statute attacked valid and 2) are the

complaint and information void? Due to this, there should

be no necessity for any sort of hearing as each question

posed is a question of law and not fact.

A-55

The Petitioner and Applicant first attack that part of

Art. 42.07, P.C., which provides that for the criminal of-

fense of “Harassment,”

(a) A person commits an offense if he intentional-

ly:

(1) communicates by telephone... in a

coarse and offensive manner and by this

action intentionally, knowingly, or reck-

lessly . . . alarms the recipient or intends

to... alarm the recipient.

VI.

In this regard, the Petitioner and Applicant would show

that Due Process and Due Course of Law, as guaranteed by

the Fourteenth Amendment to the Constitution of the

United States of America and by Art. 1, Sec. 19, of the Con-

stitution of the State of Texas, require that penal statutes

be sufficiently specific to give fair notice of what conduct

is forbidden or required in order to be held constitutional.

Furthermore, the quoted part of said statute, see supra, is

unconstitutionally and impermissibly vague and overboard

that deprives the Petitioner of due process and due course

of law and, further, said statute infringes on conduct pro-

tected by the First Amendment to the United States Con-

stitution as well as Art. I, Sec. 8 of the Texas Constitution,

and makes criminal otherwise protected conduct.

VII.

The part of the statute in question is not limited to

certain prescribed types of unreasonable conduct but it

applies to any telephone call made “in a coarse and offensive

A-56

manner.” To one person a communication over the tele-

phone might very well be construed to be “in a coarse and

offensive manner,” but to another person the telephone call

might be made with the intention of causing a slight an-

noyance in order to emphasize an idea or opinion, or to

prompt a desired course of action that one is legitimately

entitled to ask. For example, under this provision of the

statute, a consumer could make a telephone call to express

his dissatisfaction over the performance of a product or

service; a call by a businessman disturbed with another’s

failure to perform a contractual obligation; by an irate

citizen, perturbed with the state of public affairs, who

desires to express his opinion to a public official; or by an

individual bickering over family matters, and all such per-

sons would thus be guilty of a crime. First Amendment

protection is not limited to amiable communications. This

part of the statute, by its very terms, would proscribe any

telephone call made with intent to alarm, regardless of its

purpose or nature. It would daily subject countless callers

to the stigmatization of the criminal process at the election

of their listeners who might perceive the call as having

been made in “a coarse and offensive manner with the

intent to alarm.” This part of the statute makes criminal

conduct that which is protected by the First and Fourteenth

Amendments of the United States Constitution, and the like

provisions of the Texas Constitution, and is, therefore,

overly broad.

In sum, this part of the statute prohibits speech that is

beyond the pale of government regulation.

Some examples, in addition to those cited, should

suffice. If “alarm” means to “arouse to a sense of danger,”

then the part of the statute would make it criminal for one

A-57

person to call another, if done in a “coarse and offensive

manner,” to warn that person of an impending storm,

hurricane, tornado, fire, etc.

Earlier cases of the Court of Criminal Appeals, such as

Alobaidi v. State, 433 SW2d 440 (1968); Darnell v. State,

161 SW 971 (1913); LeBlanc v. State, 441 SW2d 847 (1969);

Courtemanche v. State, 507 SW2d 545 (1974); Schuster v.

State, 556 SW2d 787 (1977), are either not in point or are not

applicable to the part of the statute under discussion.

It should be noted what the Petitioner’s contentions

do not encompass:

1. It does not encompass Sec. 42.07(a) (1), as to

that part that provides that a person commits

an offense if he intentionally communicates by

telephone or in writing in vulgar, profance,

obscene, or indecent language, and

2. It does not encompass subsection (2) or sub-

section (3).

The sole issue here involves that part of the statute

which prohibits a communication by telephone in a “coarse

and offensive manner” and by such action “intentionally

and knowingly alarmed” the recipient. See and compare

Olson, “The Texas Harassment Statute — Is it Constitu-

tional? Walker v. Dillard,” 17 So.Tex.L.J. 283, and Steele,

“The Impact of the New Penal Code on First Amendment

Freedoms, 38 Tex.B.J. 245, 253 (1975).

What do the words “coarse and offensive” mean? Due

process requires that “laws must give the person of

ordinary intelligence a reasonable opportunity to know

what is prohibited, so that he may act accordingly.”

A-58

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). In

United States v. Harris, 347 U.S. 612 (1954), the Supreme

Court of the United States declared that the underlying

principle in cases involving vague statutes is that “no man

shall be held criminally responsible for conduct which he

could not reasonably understand to be proscribed.” 347 U.S...

at 617. The test to be applied is “whether the language

conveys sufficiently definite warning as to the proscribed

conduct when measured by common understanding and

practices.” Jordan v. DeGeorge, 341 U.S. 223, 231 (1951).

When First Amendment rights and freedoms are involved,

however, a stricter standard is to be applied. See Ashton v.

Kentucky, 384 U.S. 195 (1966); Smith v. California, 361 U.S.

147 (1959); Scull v. Virginia, 359 U.S. (1959).

In the instant case the statute at issue fails to give

sufficient warning as to the proscribed conduct when

measured by common understanding.

Words such as “coarse and offensive” do not give a

person of ordinary intelligence a reasonable opportunity to

know what is prohibited. The meaning of these terms

“depends upon the moral idiosyncracies of the persons

who compose a particular court or jury.” The standard of

crime can be ever varying and the courts on appeal may be

constantly forced to become instruments of moral reform

whenever there is a fluctuation in moral sentiment.” Olson,

supra, 17 S.Tex.L.J. at 298.

Of equal concern with the void for vagueness doctrine

is the problem of overbreadth. A statute which proscribes

activities which are protected under the First and Four-

teenth Amendments, and Art. I, Sec. 8, as well as those

activities which are not protected is overboard and un-

i |

A-59

constitutional. Overbroad statutes have a “chilling effect”

that tends to deter the exercise of protected speech.

This part of the statute is simply too vague, indefinite,

inadequate and uncertain to withstand constitutional

muster. These words have no fixed meaning. They are so

vague and indefinite that they cannot, by themselves,

imply a definite offense. Words to be construed as “coarse

and offensive” vary with the different phases of society,

depending upon the fastidious, refined, or primitive views

of the community or among the particular persons when

they are uttered. Words that are “coarse and offensive” in

one place might be regarded in another harmless and in

another even proper. See Irven v. State, 136 SW2d 608

(1940).

This part of the Texas harassment statute under exami-

nation in the instant case is similarly overbroad. A facial

attack on the statute cannot be withstood if the statute may

be applied to speech that is protected by the First and Four-

teenth Amendments. Gooding v. Wilson, supra; Lewis v.

City of New Orleans, supra. As the Court of Appeals for the

Fifth Circuit stated in Hiett v. United States, 415 F.2d 664

(5th Cir. 1969), cert. denied, 397 U.S. 396 (1970).

“The legislature cannot constitutionally use a

‘blunder-buss’ approach that sweeps in wide areas

of protected speech even if its goal is to eradicate

an evil undeniably caused by a smaller included

area of unprotected expression; it cannot simply

decide that ‘a certain kind of speech is, itself,

harmful and unlawful.’ ”

415 F.2d at 671 (footnote omitted). ~

Under Section 42.07(a)(1), the words used in the

A-60

statute are susceptible of overly broad application due to

subjective influence. One commentator has written that

“[a] person may be convicted under the Texas statute, as

it now stands, for using language he may not know to be

prohibited and by being negligent in failing to discover

beforehand whether the language might ‘annoy’ or ‘alarm’

the recipient.” Olson, supra, 17 S.Tex.L.J. at 300.

Professor Walter W. Steele, Jr. has called §42.07 a

textbook case of vagueness and overbreadth. He states:

Section 42.07 requires that the recipient of the

communication be annoyed or alarmed. But the

only manner in which the recipient’s annoyance

can be known is by the recipient’s statement to

that effect. Every person has his own unique scale

of annoyance, and accurate determination of that

scale is impossible to judge. Furthermore, the

Harassment section is so broad that it includes

callers who have every right and reason to inten-

tionally and knowingly annoy or alarm the

recipient of the call.

Steele, “The Impact of the New Penal Code on First Amend-

ment Freedoms,” 38 Tex.B.J. 245, 253 (1975).

This part of the Texas harassment statute proscribes

language that is protected as well as language that is not

protected by the First and Fourteenth Amendments and

Art. I, Sec. 8 of the Texas Constitution. It is not so narrowly

drawn to be limited to “fighting words.” Chaplinsky v. New

Hampshire, 315 U.S. 566 (1942). In the words of the

Supreme Court in Coher, “one man’s vulgarity is another’s

lyric.” 403 U.S. at 25. As long as the means are peaceful,

“the communication need not meet standards of accepti-

A-61

bility.” Organization for a Better Austin v. Keefe, 402 US.

415, 419 (1971). Section 42.07(a) (1) proscribes language

whether used peacefully or not. It is wholly subjective in

that one cannot know what language would annoy or alarm

the recipient until the recipient speaks. It seeks to regulate

speech that is protected by the First and Fourteenth

amendments and is, therefore, facially overbroad. See also

Annotation, “Validity, Construction, and Application of

. State Criminal Statutes Forbidding Use of Telephone to

Annoy or Harass,” by Wayne F. Foster, 95 A.L.R. 3rd com-

mencing at page 411.

Thus, for the above and foregoing reasons, the Court

should declare the above provisions of Art. 4207, P.C.,

unconstitutional, null and void.

VIII.

The Complaint and Information, which charged the

Petitioner and Applicant with an alleged criminal wrong,

is unconstitutional, defective, null and void, in that it is the

constitutional right of an accused to be informed of the

nature and cause of the accusation against him and he is

entitled to a plain statement of the charge against him. No

Complaint and Information, omitting key language alleged-

ly used by a defendant, can ever be sufficient to state a

criminal offense under the statute. Here, the Petitioner was

not told how the communication was done in a “coarse and

offensive manner” nor was he told how this act “alarmed”

the recipient. Without stating the “how” and the “words”

used that would constitute “coarse and offensive manner,”

the mere tracking of the statute is not sufficient to state a

criminal wrong. See Haecker v. State, 571 SW2d 920.

Further, this complaint and information is so vague and

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lacking in acceptable standards of guilty conduct as to be

incapable of giving a person of ordinary intelligence fair

notice that his contemplated conduct is forbidden. See

Palmer v. City of Euclid, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.

2d 89 (1971); United States v. Harris, 347 U.S. 612, 74 S.Ct.

808, 98 L.Ed. 989 (1954); Lanzetta v. New Jersey, 306 U.S.

451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); Cole v. Arkansas, 68

S.Ct. 514, 333 U.S. 196, 92 L.Ed. 644 (1948); and Voelkel v.

State, 501 SW2d 313.

' Also, Article 21.04, C.C.P., provides that: “The certainty

required in an indictment is such as will enabie the accused

to plead the judgment that may be given upon it in bar of

any prosecution for the same offense.” See also Art. I, Sec.

10, Texas Constitution. The Complaint and Information in

this cause is in such form that a valid legal judgment of

guilt cannot be based thereon.

The conclusionary statement that the “Defendant did

then and there intentionally communicate by telephone in

a coarse and offensive manner and by this action inten-

tionally and knowingly alarmed Lisa Fussell, the recipient

of said communication,” without stating what words were

spoken or said and how the communication alarmed the

recipient of said communication is so deficient as to fail

under both due process as well as due course of law. See

also American Plant Food Corporation v. State, 508 SW2d

598. It is the intent of Article I, Section 10 of the Texas

Constitution and of the Fourteenth Amendment to the

United States Constitution that an accused in a particular

case be given sufficient information upon which he may

-eprepare his defense and this information must come from

the face of the Complaint and Information. See Terry v.

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State, 471 SW2d 848; Baker v. State, 58 SW2d 534; Voelkel v.

State, 501 SW2d 313. If no offense has been properly

alleged, then it will not support a valid esmviction and may

be attacked collaterally. See Standley v. State, 517 SW2d

538.

Thus for the above and foregoing reasons, if no other,

the conviction of the Petitioner and Applicant is null and

void and should be set aside and held for naught.

PRAYER

WHEREFORE, Petitioner prays that this Honorable

Court order the Respondent to show cause why the Writ

should not be granted and, after hearing, grant the relief the

Petitioner and Applicant seeks by holding the said part of

Art. 42.07, P.C., unconstitutional, and further holding the

Complaint and Information null and void.

Respectfully submitted,

/s/ Marvin O. Teague

Attorney ait Law

914 Main, Suite 1101

Houston, Texas 77002

(713) 222-1728

State Bar No. 19754000

THE STATE OF TEXAS)

COUNTY OF HARRIS )

BEFORE ME, the undersigned authority, on this day

personally appeared PARKER McVICKER, who, being by

me duly sworn, upon oath, says that he is the Petitioner in

the above and foregoing petition, that he has read said

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petition and the factual allegations of same are true and

correct.

/s/ Parker McVicker

SUBSCRIBED AND SWORN TO BEFORE ME by the

said PARKER McVICKER, this day of ;

1980, to certify which witness my hand and seal of office.

/s/ Illegible

Notary Public in and for

Harris County, Texas

My Commission Expires:

3/28/84

CERTIFICATE OF SERVICE

I, MARVIN O. TEAGUE, Attorney for Petitioner,

PARKER McVICKER, hereby certify that copies of the

above and foregoing Application for State Post-Conviction

Writ of Habeas Corpus, have been mailed to the following

persons:

Hon. Mark White Hon. Joe L. Register

Attorney General County Attorney

Supreme Court Building Angelina County, Texas

Austin, TX 78711 Lufkin, TX 75901

Hon. Gerald Goodwin

District Attorney

Angelina County, Texas

Courthouse

Lufkin, TX 75901

by placing same in the United States Mail, certified, postage

prepaid on this the day of , 1980.

/s/ Marvin O. Teague

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EXHIBIT “K”

WRIT NO. 9578

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

EX PARTE PARKER McVICKER

ORIGINAL APPLICATION FOR

WRIT OF HABEAS CORPUS

ORDER

On this day came to be considered this Original Appli-

cation for Writ of Habeas Corpus presented to this Court by

Petitioner. Said Application was not accompanied by a

motion for leave to file same; but this Court has considered

such Application in the nature of a motion for leave to file

and is of the opinion that the motion for leave to file said

Application should be denied.

Therefore, it is Ordered, Adjudged, and Decreed that

said Application for Writ of Habeas Corpus, considered as

a motion for leave to file same, as aforesaid, be, and it is

hereby, in all things denied.

It is so ordered this 29th day of September, 1980.

PER CURIAM

En Banc

By: /s/ Sherrie Ericson, Deputy

Ct. of Crim. App. of Texas

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EXHIBIT “L”

COURT OF CRIMINAL APPEALS OF TEXAS

AUSTIN, TEXAS

No. 9578

EX PARTE PARKER McVICKER

ORIGINAL APPLICATION FOR

WRIT OF HABEAS CORPUS

I, THOMAS LOWE, Clerk of the Court of Criminal

Appeals of Texas do hereby certify that on September 22,

1980 an application for writ of habeas corpus was presented

to this Court and same was denied by per curiam order

dated September 29, 1980.

With the denial of said application this matter became

final in this Court.

WITNESS my hand and the seal of said Court, at

Austin, Texas, this the Ist day of December, 1980.

/s/ Thomas Lowe, Clerk, Court of

Criminal Appeals of Texas

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.