Thomas George Griswold, III v. the State of Texas ( 2022 )

DISSENT; Opinion Filed February 24, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01561-CR
THOMAS GEORGE GRISWOLD, III, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 2-19-0884
OPINION DISSENTING FROM DENIAL OF EN BANC
RECONSIDERATION
Before the Court sitting En Banc.
Opinion by Justice Schenck
Confronting a res nova question for our Court, the panel has declared an
important criminal statute to be unconstitutional. In so doing, the Court deepens an
existing division among the appellate courts of this State and places our court in the
distinct minority view. The State has sought reconsideration en banc, which we now
deny despite the new precedent we set for this Court and the effect of our holding. I
disagree with the panel’s analysis and conclusions and, regardless of my view of the
merits, further disagree with the Court’s decision declining to consider this case en
banc. I therefore dissent.
WE NEED NOT ADDRESS THE CONSTITUTIONAL CHALLENGE RAISED HERE
Section 42.072(a) of the penal code proscribes a person’s knowingly engaging
in conduct that either constitutes an offense under section 42.07 of the penal code or
that the actor knows or reasonably should know another person will regard as
threatening an offense against the person, a member of her household, her romantic
partner, or her property. See TEX. PENAL CODE § 42.072(a). The indictment here
alleged appellant committed the offense of stalking by “engag[ing] in conduct that
constituted an offen[s]e under section 42.07 and/or conduct that [appellant] knew
or reasonably should have known [the complainant] would regard as threatening
bodily injury for [the complainant].” (emphasis added).
The panel opinion addresses appellant’s constitutional challenge to section
42.07 and concludes that subsection 42.072(a) is unconstitutional to the extent it
incorporates section 42.07. See Griswold v. State, No. 05-19-01561-CR, 2021 WL
6049853, at *4 (Tex. App.—Dallas Dec. 21, 2021, no pet. h.). However, in this case,
no one attacked the second half of the stalking statute as set forth in the indictment:
the portion that alleges appellant knew or reasonably should have known the
complainant would regard appellant’s conduct as threatening bodily injury to the
complainant. See In re Ginsberg, 630 S.W.3d 1, 10 (Tex. 2018) (defining
constitutional avoidance as canon of statutory construction requiring courts decide
constitutional questions only when issue cannot be resolved on non-constitutional
grounds). If only a portion of a statute is challenged as facially unconstitutional, the
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court of criminal appeals has directed that we are to leave the remainder of the statute
intact, so long as doing so would be feasible. See Salinas v. State, 523 S.W.3d 103,
110 (Tex. Crim. App. 2017). As the State notes in its Petition for Reconsideration,
the unchallenged portion of the stalking statute presents a fully viable alternate
ground for conviction.
Because I would have avoided the constitutional question, I dissent from the
panel opinion’s analysis.
SECTION 42.072(A) IS NOT UNCONSTITUTIONALLY OVERBROAD AND VAGUE AS
CHALLENGED HERE
Section 42.07, which is incorporated in section 42.072(a), provides that a
person commits harassment if with intent to harass, annoy, alarm, abuse, torment, or
embarrass another, the person sends repeated electronic communications1 in a
manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or
offend another. See PENAL § 42.07(a)(7).
The panel opinion concludes that because the offense described by section
42.07 is “open to various ‘uncertainties of meaning,’” its incorporation into section
1
Section 42.07(b)(1) defines “electronic communication” as:
a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature
transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-
optical system. The term includes:
(A) a communication initiated through the use of electronic mail, instant message, network
call, a cellular or other type of telephone, a computer, a camera, text message, a social
media platform or application, an Internet website, any other Internet-based
communication tool, or facsimile machine; and
(B) a communication made to a pager.
See PENAL § 42.07(b)(1).
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42.0722 renders section 42.072 unconstitutionally vague on its face. See Griswold,
2021 WL 6049853, at *4. The panel opinion further concludes the stalking statute
is unconstitutionally overbroad because the statute includes “electronic
communications,” which the panel concludes “goes ‘beyond a lawful proscription
of intolerably invasive conduct and instead reaches a substantial amount of speech
protected by the First Amendment.’” See id. at *3. More specifically, the panel
opinion concludes the inclusion of the terms “harass, annoy, alarm, abuse, torment,
embarrass, or offend” leaves the section prohibiting sending “repeated electronic
communications in a manner reasonably likely to harass, annoy, alarm, abuse,
torment, embarrass, or offend another” open to various “uncertainties of meaning.”
See id. at *4.
That is all well enough. But the constitutional vagueness standard we apply
here does not require the legislature to craft language free from the prospect of
debate, even reasonable debate, over the meaning of its text. See State v. Doyal, 589
S.W.3d 136, 146 (Tex. Crim. App. 2019) (reciting standard for constitutional
vagueness as “sufficiently clear (1) to give a person of ordinary intelligence a
reasonable opportunity to know what is prohibited and (2) to establish determinate
2
That there is expressive conduct that may be proscribed despite being speech is beyond question.
Schenck v. United States, 249 U.S. 47, 52 (1919). The First Amendment permits “restrictions upon the
content of speech in a few limited areas, which are ‘of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’”
Virginia v. Black, 538 U.S. 343, 358 (2003) (concluding that threats of violence are outside the First
Amendment) (citation omitted).
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guidelines for law enforcement”); Scott v. State, 322 S.W.3d 662, 669 (Tex. Crim.
App. 2010) (holding plain text of section 42.07 “is directed only at persons who
[have] the specific intent to inflict emotional distress.”).3
The controlling question, as I understand it, is whether the statute
impermissibly quells protected speech and is so unclear in its application that a
person of ordinary intelligence would be left to guess at its application. See Garcia
v. State, 583 S.W.3d 170, 174–75 (Tex. App.—Dallas 2018, pet. ref’d) (First
Amendment held to not bar prosecution for threatening to murder police officers on
social media). Discerning when an electronic communication is “reasonably likely
to” harass or offend another is, to be sure, a challenge, just as determining whether
an oral statement is “a true threat” and thus subject to prosecution and conviction
despite the obvious free speech implications. See id. Any forward-looking attempt
to craft language precisely and comprehensively capturing the distinction would
surely fail, just as would one attempting to define when a physical “touching”
becomes “offensive” to the point of constituting an “assault.” That this conduct
takes place in the ether is of no moment. Here, as elsewhere, we accept that the final
analysis of any lingering questions as to the fit between the facts of a given case and
the reasonable reading of the law is best left to jurors, as matters of fact, so long as
3
The very same opinion the panel interprets as abrogating Scott’s construction of the intent requirement
of section 42.07 in fact focuses on the construction of the phrase “repeated telephone communications,” not
the phrase “harass, annoy, alarm, abuse, torment, embarrass, or offend.” See Wilson v. State, 448 S.W.3d
418, 424–25 (Tex. Crim. App. 2014).
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the prohibition is reasonably described in the statute and the conduct, including
speech as conduct, is beyond constitutional protection. Id.No one here doubts that stalking is a bad thing, see, e.g., Singh v. State, No.
05-16-00610-CR, No. 05-16-00611-CR, 2018 WL 703329, at *1–2 (Tex. App.—
Dallas Feb. 5, 2018, pet. ref’d) (mem. op.), and the legislature has the general power
to criminalize such conduct. Vandyke v. State, 538 S.W.3d 561, 573 (Tex. Crim.
App. 2017) (“[T]he Legislature possesses the sole authority to establish criminal
offenses . . . .”). I would conclude a person of ordinary intelligence could understand
what is proscribed by the harassment statute.
The panel opinion agrees with the analysis of some of our sister courts of
appeals that because section 42.07 expands the definition of harassing conduct to
include sending “electronic communications,” the scope of the statute prohibits or
chills a substantial amount of protected speech, rendering it unconstitutionally broad.
See Griswold, 2021 WL 6049853, at *4 (citing State v. Chen, 615 S.W.3d 376, 384‒
85 (Tex. App.—Houston [14th Dist.] 2020, pet. filed) (holding section 42.07(a)(7)
unconstitutionally overbroad); Ex parte Barton, 586 S.W.3d 573, 583‒85 (Tex.
App.—Fort Worth 2019, pet. granted) (op. on reh’g) (holding section 42.07(a)(7)
facially unconstitutional as overbroad and vague)). My understanding of the panel’s
concern is that by including many forms of communication, the harassment statute
prohibits conduct such as posts on social media that could be considered public,
rather than private, speech and thus potentially protected by the First Amendment.
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See Barton, 586 S.W.3d at 584 (“This provision . . . applies, for example, to facebook
posts, message-board posts, blog posts, blog comments, and newspaper article
comments.”) (quoting Ex parte Reece, 517 S.W. 108, 111 (Tex. Crim. App. 2017)
(Keller, P.J., dissenting)). My answer is simple: “so what?” A finding that the
statute is unconstitutionally overbroad would require a conclusion that the statute
prohibits a substantial amount of protected expression. See State v. Johnson, 475
S.W.3d 860, 865 (Tex. Crim. App. 2015). I do not understand the First Amendment
to confer a special right to harass or stalk online any more than it would confer a
right to make “true threats” to murder police officers over the internet. Garcia,
supra.
While the phrase “electronic communication” surely expands the reach of the
statute to include many forms of communication, culpability under the harassment
statute always depends on whether the person actually intends to “harass, annoy,
alarm, abuse, torment, embarrass, or offend another”—any or all of which fit
comfortably in the speech as unlawful conduct rubric of Schenck and its progeny.
See PENAL § 42.07(a)(7) (emphasis added); see also Test Masters Educ. Servs., Inc.
v. Singh, 428 F.3d 559, 580 (5th Cir. 2005) (“Courts have made a distinction between
communication and harassment.”). Thus, subsection 42.07(a)(7) does not seek to
criminalize communications protected by the First Amendment. See, e.g.,
Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (defining constitutionally
unprotected class of words—“fighting words”—as those which by their very
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utterance inflict injury or tend to incite an immediate breach of the peace). Rather,
it forbids online activities little different from, and no more protected than, the act
of yelling “fire” in a crowded theater. See Schenck, supra n.2. From the listener’s
perspective, there is no difference between hearing “fire” aurally while seated in the
theater and reading it on the screen of a phone; the panic and stampede will follow
in either case.
Accordingly, I would not conclude section 42.07—or section 42.072 through
its incorporation of section 42.07—is unconstitutionally vague or overbroad.
EN BANC RECONSIDERATION IS APPROPRIATE WHERE A CASE IS ONE OF FIRST
IMPRESSION AND DECIDED IN THE CONTEXT OF A SPLIT OF AUTHORITY
Beyond my concerns with the panel opinion, I disagree with this Court’s
decision to decline to hear this case en banc.
There are fourteen district courts of appeal in this State, and seven have held
section 42.072 is not unconstitutionally overbroad or vague.4 A minority have held
to the contrary with regards to section 42.07, which is incorporated into section
42.072. See Chen, 615 S.W.3d at 384‒85 (holding section 42.07(a)(7)
4
See Ex parte Johnston, No. 09-19-00445-CR, 2021 WL 1395564, at *3‒5 (Tex. App.—Beaumont
Apr. 14, 2021, no pet.) (mem. op., not designated for publication) (section 42.072 does not implicate First
Amendment protection and therefore is not unconstitutionally overbroad or vague); Ex parte McDonald,
606 S.W.3d 856, 863‒64 (Tex. App.—Austin 2020, pet. filed) (same); Ex parte Sanders, No. 07-18-00335-
CR, 2019 WL 1576076, at *4‒5 (Tex. App.—Amarillo Apr. 8, 2019, pet. granted) (mem. op., not
designated for publication) (same); Ex parte Hinojos, No. 08-17-00077-CR, 2018 WL 6629678, at *6 (Tex.
App.—El Paso Dec. 19, 2018, pet. ref’d) (not designated for publication) (same); Ex parte Reece, No. 11-
16-00196-CR, 2016 WL 6998930, at *3 (Tex. App.—Eastland Nov. 30, 2016, pet. ref’d) (mem. op., not
designated for publication) (same); Lebo v. State, 474 S.W.3d 402, 408 (Tex. App.—San Antonio 2015,
pet. ref’d) (same); Duran v. State, No. 13-11-00205-CR, 2012 WL 3612507, at *3‒4 (Tex. App.—Corpus
Christi‒Edinburg Aug. 23, 2012, pet. ref’d) (mem. op., not designated for publication) (same).
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unconstitutionally overbroad); Ex parte Barton, 586 S.W.3d at 583‒85 (holding
section 42.07(a)(7) facially unconstitutional as overbroad and vague). And, of
course, as a dissenter here, I concede that a minority opinion is not necessarily an
incorrect one. But, I believe the better reasoned view has been adopted by the
overwhelming majority of intermediate appellate courts that have considered the
issue. Moreover, and quite apart from whatever one might find as the proper
holding, our announcing new law for this Court and adding ourselves into this extant
conflict would commend—if not command—us to hear this case en banc as we have
seen fit to do so in other cases far less momentous in recent years.5 See TEX. R. APP.
P. 41.2(c) (en banc consideration disfavored “unless necessary to secure or maintain
uniformity of the court’s decisions or unless extraordinary circumstances require en
banc consideration”).
CONCLUSION
Because I disagree with the panel opinion’s analysis and conclusions and with
this Court’s denial of en banc reconsideration, I dissent.
5
See, e.g., Steward Health Care Sys. LLC v. Saidara, 633 S.W.3d 120, 129 (Tex. App.—Dallas 2021,
no pet.); Faber v. Collin Creek Assisted Living Ctr., Inc., 629 S.W.3d 630, 634 (Tex. App.—Dallas 2021,
pet. filed); In re Cook, 629 S.W.3d 591, 599 (Tex. App.—Dallas 2021, orig. proceeding [mand. pending]);
Hernandez v. Sun Crane & Hoist, Inc., 600 S.W.3d 485, 495 n.9 (Tex. App.—Dallas 2020), rev’d sub nom.
JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860 (Tex. 2021); Inland W. Dallas Lincoln Park Ltd. P’ship
v. Hai Nguyen, 629 S.W.3d 293, 296 (Tex. App.—Dallas 2020, pet. denied) (Burns, C.J., dissenting from
withdrawal of grant of en banc review).
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/David J. Schenck/
191561f.p05 DAVID J. SCHENCK
JUSTICE
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