Sunday, May 04, 2008

E-harassment law too vague for appeals court

At Not Guilty, criminal defense lawyer Doug Weathers informs us that the "rarest of events has occurred here in Texas": "A criminal statute has been declared unconstitutional on its face by the [Fort Worth] Court of Appeals."
The statute is a part of the harassment statute, namely Section 42.07(a)(7) of the Texas Penal Code. The court declared, in the case of Karenev v. State, the statute is unconstitutional because it is on its face unconstitutionally vague. I will allow you the reader to read the opinion for yourself concerning the facts.

Basically a criminal case was brought in Denton County under the specific part of the harassment statute that concerned "repeated electronic communications" that arose out of a divorce situation. The defendant was convicted and appealed on the issues of factual sufficiency of the evidence, the jury charge and the constitutionality of the statute. In a rare instance, the court addressed an issue that was raised for the first time on appeal and was not raised at trial. This only happened because the defendant was not arguing that the statute was unconstitutional as it applied to him but that the statute is facially invalid.

The court had problems with multiple parts of the statute. They said the words, "likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another" were vague and that it would be particularly hard to give a meaning to "annoy" or "alarm" because they are "susceptible to uncertainties of meaning." The statute's requirement of "repeated electronic communications" is not defined. How many emails equals "repeated" three? four? Also over how long? Could "three annoying emails over a five-year period" make a person guilty under this statute? The result is that the rarest of events occurred which is a criminal appellate decision ended with the words "we reverse the trial court's judgment and render judgment of acquittal."
A rare event indeed. Nearly unheard of in recent years.

Correction: This post originally stated the Court of Criminal Appeals overturned the law, but it was the Court of Appeals in Fort Worth, and is now being appealed to the CCA. I apologize for the error, which was mine, not Mr. Weathers.


Anonymous said...

You might wanna edit that. It was the Fort Worth Court of Appeals.

Anonymous said...

The SPA filed a PDR on May 1. It definitely ain't over yet!

Gritsforbreakfast said...

I corrected it, thanks. Weathers had it right, I just misread.

TxBluesMan said...

LOL, our lege at work.

The 5th Cir rules the previous law unconstitutional on the same grounds, so they fix that, and then years later, use the old (unconstitutional) language to add harassment by e-mail and texting.

Don't any of them pay attention?

The Monty Blog said...

The CCA will never let that stand.

They recently allowed a statute to stand that prohibited playing music "in such a manner as to . . . unreasonably disturb or interfere with the peace."

TxBluesMan said...

I don't know about that Monty.

If the statute uses the same language that the 5th Circuit struck down in 1983, I think you can count on the ruling that the law is unconstitutional standing.