Ex Parte Justin Brian Johnston

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-19-00445-CR
__________________

EX PARTE JUSTIN BRIAN JOHNSTON

__________________________________________________________________

On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 19-03-03754-CR
__________________________________________________________________

MEMORANDUM OPINION

Justin Brian Johnston 1, Appellant, was indicted for allegedly stalking an ex-

girlfriend. 2 This accelerated appeal arises from the trial court’s order denying

Johnston the relief sought in his “Application for Pretrial Writ of Habeas Corpus

and/or Motion to Quash Amended Indictment” (hereinafter the Pretrial Motions).

The amended indictment alleged that Johnston committed the offense of stalking in

violation of section 42.072(a) in that

1
According to Appellant, he was a Liberty County Constable at the time of
his arrest.
2
In Appellant’s brief, Johnston states he was originally indicted for
misdemeanor harassment, but that charge was dismissed by the State.
1
 on or about June 08, 2018, . . . [Johnston] did then and there on more
than one occasion and pursuant to the same scheme or course of
conduct that is directed specifically at another person, namely: [S.E. 3],
knowingly engage in conduct that: constitutes the offense of
harassment; caused [S.E.] to feel harassed, annoyed, alarmed, abused,
tormented, embarrassed, or offended; and would cause a reasonable
person to feel harassed, annoyed alarmed, abused, tormented,
embarrassed, or offended to-wit: by sending repeated, unsolicited
electronic communications to [S.E.] between the dates of May 1, 2018
and October 1, 2018, in a manner reasonably likely to harass, annoy,
alarm, abuse, torment, embarrass, or offend [S.E.]

In his Pretrial Motions, Johnston alleged that section 42.072 of the Texas

Penal Code is facially unconstitutional because it is vague and overbroad and that it

chills First Amendment speech. Johnston also argued that the indictment lacked

specificity and certainty as to the acts for which he was being tried, put him in

jeopardy, and failed to set forth the offenses in plain and intelligible words. The trial

court had a hearing on and then denied the Pretrial Motions, and thereafter Johnston

timely appealed. Both in the trial court and on appeal, Johnston argues section

42.072 of the Texas Penal Code is facially unconstitutional under due process

because of its overbreadth and vagueness, and Johnston argues that it also violates

the free speech protections in the First Amendment. Finding no error, we affirm.

3
To protect the privacy of the victim, we refer to her by her initials. See Tex.
Const. art. I, § 30(a)(1) (granting victims of crime “the right to be treated with
fairness and with respect for the victim’s dignity and privacy throughout the criminal
justice process”).
2
 Standard of Review

The Court of Criminal Appeals “ha[s] held that an applicant may use pretrial

writs to assert his or her constitutional protections with respect to double jeopardy

and bail[,]” to challenge the facial constitutionality of the statute under which he or

she is prosecuted, or to allege that the offense charged is barred by limitations. Ex

parte Weise, 55 S.W.3d 617, 619-20 (Tex. Crim. App. 2001). We review a trial

court’s ruling on a pretrial writ of habeas corpus for an abuse of discretion. Kniatt v.

State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). In conducting this review, we

view the record evidence in the light most favorable to the trial court’s ruling. Id.

Ordinarily, when reviewing the constitutionality of a statute, we presume that

the statute is valid and that the legislature has not acted unreasonably or arbitrarily.

Ex parte Lo, 424 S.W.3d 10, 14-15 (Tex. Crim. App. 2013); Maloney v. State, 294

S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.] 2009, pet ref’d) (citing Rodriquez

v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002)). The party challenging the statute

normally carries the burden to establish the statute’s unconstitutionality. Rodriguez,

93 S.W.3d at 69. We shall uphold the statute if there is a reasonable construction

that renders it constitutional. Maloney, 294 S.W.3d at 626 (citing Ely v. State, 582

S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979)). “Whether a statute is facially

constitutional is a question of law that we review de novo.” Ex parte Lo, 424 S.W.3d

at 14. (citations omitted).

3
 Section 42.072(a)(1) provides that a person commits the offense of stalking

. . . if the person, on more than one occasion and pursuant to the same
scheme or course of conduct that is directed specifically at another
person, knowingly engages in conduct that . . . constitutes an offense
under Section 42.07, or that the actor knows or reasonably should know
the other person will regard as threatening:
(A) bodily injury or death for the other person;
(B) bodily injury or death for a member of the other person’s
family or household or for an individual with whom the other
person has a dating relationship; or
(C) that an offense will be committed against the other person’s
property[.]

Tex. Penal Code Ann. § 42.072(a)(1). Section 42.07 codifies the offense of

harassment and states, in relevant part, that

(a) A person commits an offense if, with intent to harass, annoy, alarm,
abuse, torment, or embarrass another, the person:
...
(7) sends repeated electronic communications in a manner
reasonably likely to harass, annoy, alarm, abuse, torment,
embarrass, or offend another.

Id. § 42.07(a)(7). Section 42.07(b)(1) defines “electronic communication” as

follows:

“Electronic communication” means a transfer of signs, signals, writing,
images, sounds, data, or intelligence of any nature transmitted in whole
or in part by a wire, radio, electromagnetic, photoelectronic, or photo-
optical system. The term includes:
(A) a communication initiated through the use of electronic mail,
instant message, network call, a cellular or other type of
telephone, a computer, a camera, text message, a social media
platform or application, an Internet website, any other Internet-
based communication tool, or facsimile machine; and
(B) a communication made to a pager.

4
Id. § 42.07(b)(1).
Void for Vagueness

In his first issue, Johnston argues that section 42.072(a)(1) is

unconstitutionally vague. He argues that the statute is void for vagueness because

the proscribed conduct—engaging in conduct that constitutes an offense under

Section 42.07 by causing another person to feel harassed, annoyed, alarmed, abused,

tormented, embarrassed, or offended—does not give reasonable notice of what

constitutes criminal conduct as required by the Fifth, Sixth, and Fourteenth

Amendments of the U.S. Constitution and Article I, Sections 10 and 19 of the Texas

Constitution. According to Johnston, the verbs in the section 42.07(a)(7) (harass,

annoy, alarm, abuse, torment, embarrass, or offend) are not defined by the statute

and do not lend themselves to objective definitions. Johnston acknowledges that the

intermediate appellate courts have disagreed that these terms render the harassment

statute impermissibly vague, and he cites Karenev v. State, 258 S.W.3d 210, 217

(Tex. App.—Fort Worth 2008), rev’d on other grounds, 281 SW.3d 428 (Tex. Crim.

App. 2009), and Ex parte Barton, 586 S.W.3d 573, 584 (Tex. App.—Fort Worth

2019, pet. granted) (op. on reh’g), in arguing that this language in the harassment

statute is impermissibly vague. Johnston also cites to several dissenting opinions

5
authored by Presiding Judge Keller, wherein Presiding Judge Keller has described

the harassment statute as unconstitutional. 4

The State responds and argues the statute is not unconstitutional. The State

relies on the majority opinion in Scott v. State, 322 S.W.3d 662 (Tex. Crim. App.

2010), in arguing that the telephone harassment portion of the stalking statute is not

unconstitutionally overbroad or void for vagueness, and it does not implicate the

First Amendment. According to the State, in Scott the Court rejected the same

constitutional attacks to section 42.07(a)(4) that Johnston is making in this case to

section 42.07(a)(7). The State contends that “[t]he only functional difference

between the subsection at issue in Scott and the incorporated portion of the

harassment statute in this case is that the subsection at issue here prohibits repeated

‘electronic communications,’ rather than repeated telephone communications.” 5

We agree that in Scott, the Court of Criminal Appeals addressed similar

arguments to Johnston’s when it analyzed the constitutionality of section 42.07(a)(4)

4
Ex parte Reece, 517 S.W.3d 108 (Tex. Crim. App. 2017) (Keller, P.J.,
dissenting); Ogle v. State, 563 S.W.3d 912 (Tex. Crim. App. 2018) (Keller, P.J.,
dissenting); Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010) (Keller, P.J.,
dissenting).
5
Section 42.07(a)(4) provides that “[a] person commits [the offense of
harassment] if, with intent to harass, annoy, alarm, abuse, torment, or embarrass
another, the person . . . causes the telephone of another to ring repeatedly or makes
repeated telephone communications anonymously or in a manner reasonably likely
to harass, annoy, alarm, abuse, torment, embarrass, or offend another[.]” Tex. Penal
Code Ann. § 42.07(a)(4).
6
regarding harassment and telephonic communications. See 322 S.W.3d at 667-71;

see also Tex. Penal Code Ann. § 42.07(a)(4). The Court of Criminal Appeals

explained in Scott that to determine if section 42.07(a)(4) implicates constitutionally

protected speech we must “determine the protection afforded by the free-speech

guarantee, and then we must determine the meaning of § 42.07(a)(4).” Scott, 322

S.W.3d at 668. In analyzing if the statute as written implicated the First

Amendment’s free-speech guarantee, the Court explained that

[t]he First Amendment provides, in relevant part, that “Congress shall
make no law . . . abridging the freedom of speech.” This guarantee of
free speech, which was made applicable to the various states by the Due
Process Clause of the Fourteenth Amendment, generally protects the
free communication and receipt of ideas, opinions, and information[.]
In a nation of ordered liberty, however, the guarantee of free speech
cannot be absolute. The State may lawfully proscribe communicative
conduct (i.e., the communication of ideas, opinions, and information)
that invades the substantial privacy interests of another in an essentially
intolerable manner.

Id. at 668-69 (citations omitted). The Court stated that considering the “plain text,

we believe that the conduct to which the statutory subsection is susceptible of

application will be, in the usual case, essentially noncommunicative, even if the

conduct includes spoken words.” Id. at 670 (citation omitted). The Court noted that

the “persons whose conduct violates § 42.07(a)(4) will not have an intent to engage

in the legitimate communication of ideas, opinions, or information; they will have

only the intent to inflict emotional distress for its own sake.” Id. In other words,

because the statute required the actor have the specific intent to “harass, annoy,
7
alarm, abuse, torment, or embarrass another, he . . . makes repeated telephone

communications . . . in a manner reasonable likely to harass, annoy, alarm abuse,

torment, embarrass, or offend another[,]” this was not communication protected by

the First Amendment. Id. at 669-70; see also Tex. Penal Code Ann. § 42.07(a)(4).

Recently, in State v. Grohn, 612 S.W.3d 78 (Tex. App.—Beaumont 2020, pet.

filed), this Court rejected a facial challenge to section 42.07(a)(7). In Grohn, the

defendant argued that the statute was vague and overbroad. Id. at 79-80. In

concluding that section 42.07(a)(7) “does not implicate First Amendment protection

and therefore, is not unconstitutionally vague[,]” this Court agreed with some of our

sister courts and found that the reasoning of Scott applies equally to the similarly

worded electronic-communications-harassment statute. Id. at 80-85; see also Ex

parte McDonald, 606 S.W.3d 856, 862-64 (Tex. App.—Austin 2020, no pet.);

Tarkington v. State, No. 12-19-00078-CR, 2020 Tex. App. LEXIS 2254, at **8-9

(Tex. App.—Tyler Mar. 18, 2020, no pet.) (mem. op., not designated for

publication); Ex parte Sanders, No. 07-18-00335-CR, 2019 Tex. App. LEXIS 2813,

at **11-12 (Tex. App.—Amarillo Apr. 8, 2019, pet. granted) (mem. op., not

designated for publication); Ex parte Hinojos, No. 08-17-00077-CR, 2018 Tex. App.

LEXIS 10530, at *14 (Tex. App.—El Paso Dec. 19, 2018, pet. ref’d) (not designated

for publication); Ex parte Reece, No. 11-16-00196-CR, 2016 Tex. App. LEXIS

12649, at *7 (Tex. App.—Eastland Nov. 30, 2016, pet. ref’d) (mem. op., not

8
designated for publication); Blanchard v. State, No. 03-16-00014-CR, 2016 Tex.

App. LEXIS 5793, at **7-8 (Tex. App.—Austin June 2, 2016, pet. ref’d) (mem. op.,

not designated for publication); Lebo v. State, 474 S.W.3d 402, 408 (Tex. App.—

San Antonio 2015, pet. ref’d); Duran v. State, Nos. 13-11-00205-CR & 13-11-

00218-CR, 2012 Tex. App. LEXIS 7110, at **7-8 (Tex. App.—Corpus Christi-

Edinburg Aug. 23, 2012, pet. ref’d) (mem. op., not designated for publication). 6 We

are bound by the precedent of this Court, and therefore we reject Johnston’s

argument that 42.07(a)(7) implicates the First Amendment, is void for vagueness, or

overbroad. See State v. Ibarra, 918 S.W.2d 15, 17 (Tex. App.—Houston [14th Dist.]

1995) (absent contrary authority, an intermediate appellate court is bound by

decisions of that court and the Court of Criminal Appeals), aff’d, 953 S.W.2d 242

(Tex. Crim. App. 1997).

Johnston also argues the harassment and stalking statutes are vague because

the term “repeated” in section 42.07(a)(7) and the terms “scheme” and “course of

conduct” in section 42.072(a)(1) are undefined in the Penal Code, and the terms fail

to “indicate a concrete number.” Johnston further asserts that the “reasonable

6
We note that other sister courts have found that section 42.07(a)(7)
implicates the First Amendment and that it is unconstitutionally overbroad or vague.
See State v. Chen, 615 S.W.3d 376, 383-85 (Tex. App.—Houston [14th Dist.] 2020,
pet. filed); Ex parte Barton, 586 S.W.3d 573, 583-84 (Tex. App.—Fort Worth 2019,
pet. granted) (op. on reh’g).
9
person” standard in section 42.072(a)(1) does not “save” the statute from

unconstitutional vagueness.

Johnston acknowledges that the Texas Court of Criminal Appeals determined

in Wilson v. State that the term “repeated” in section 42.07(a)(4) means more than

one occurrence. See 448 S.W.3d 418, 424 (Tex. Crim. App. 2014). The Court in

Wilson determined that the term “repeated” in section 42.07(a)(4) is unambiguous:

[Section 42.07(a)(4)]’s use of “repeated” simply speaks in terms of the
number of telephone communications, it does not attempt to define the
required frequency of the communications or temporal proximity of
one communication to another. Finding § 42.07(a)(4)’s use of
“repeated” ambiguous in describing these specific characteristics of the
communication asks too much of the term. It would require presuming
that the Legislature intended to define and regulate this type of
harassing conduct by a particular frequency or temporal standard—a
notion unsupported by the statute’s plain language.

Id. (footnote omitted). Similarly, we believe the term “repeated” in section

42.07(a)(7) is also unambiguous. We conclude that Johnston has failed to establish

that section 42.072(a)(1) or section 42.07(a)(7) is unconstitutionally vague on its

face. Because we have determined that section 42.07(a)(7) does not implicate the

First Amendment’s free speech guarantee, the burden falls on Johnston to

demonstrate “that it was unduly vague as applied to his own conduct.” See Scott,

322 S.W.3d at 670-71. Johnston has failed to show how the statute is

10
unconstitutionally vague as applied to his conduct. We overrule Johnston’s first

issue.7

Overbreadth

In his second issue, Johnston argues that section 42.072(a)(1) is also facially

unconstitutional because it is overly broad and restricts too much speech protected

by the First and Fourteenth Amendments of the U.S. Constitution and Article I,

Section 8, of the Texas Constitution. According to Johnston, the electronic

communications proscribed by section 42.07(a)(7)—and therefore also

42.072(a)(1)—includes not only personal texts and emails but also social media

postings, which is public speech that has been held to be protected speech. Johnston

argues that the Court of Criminal Appeal’s holding in Scott that section 42.07(a)(4)

does not implicate the First Amendment does not apply to section 42.07(a)(7).

Johnston also argues that there is no nexus between the compelling interest

underlying section 42.072(a)(1) and the “[b]lanket [r]estriction” on repeated

electronic communications and that section 42.072(a)(1) is not narrowly tailored

because electronic communications in public forums would fall within the broad

sweep of section 42.07(a)(7).

7
Because we find section 42.07(a)(7) and section 42.072(a)(1) are not
unconstitutionally vague on the grounds asserted by Johnston, we need not address
his argument that the “reasonable person” standard in section 42.072(a)(1) does not
“save” the statute from unconstitutional vagueness.
11
 The State argues that the stalking statute is not overbroad in violation of the

First Amendment. According to the State, the Court of Criminal Appeal’s holding

in Scott as to section 42.07(a)(4) should apply to section 42.07(a)(7) because the

only functional difference between the two subsections is that subsection (a)(4)

prohibits repeated telephone communications and subsection (a)(7) prohibits

repeated “electronic communications,” and therefore, the harassment portion of the

stalking statute does not implicate the First Amendment. The State argues that

Johnston’s argument that section 42.07(a)(7) implicates First Amendment is based

on “non-mandatory, unpersuasive authority.” The State also contends the additional

elements of the stalking statute further avoid reaching constitutionally protected

speech.

Before a statute will be invalidated on its face as overbroad, the overbreadth

must be substantial when “‘judged in relation to the statute’s plainly legitimate

sweep.’” Ex parte Lo, 424 S.W.3d at 18 (quoting Virginia v. Hicks, 539 U.S. 113,

118-19 (2003)). A statute should not be invalidated for overbreadth merely because

it is possible to imagine some unconstitutional application. See In re Shaw, 204

S.W.3d 9, 15 (Tex. App.—Texarkana 2006, pet. ref’d) (citing Members of City

Council v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984)). With respect to

vagueness, statutes are not necessarily unconstitutionally vague merely because the

words or terms employed in the statute are not specifically defined. See Engelking

12
v. State, 750 S.W.2d 213, 215 (Tex. Crim. App. 1988). When a statute does not

define the words used therein, we will give the words their plain meaning. See

Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim. App. 1999); see also Tex. Gov’t

Code Ann. § 311.011(a). (“Words and phrases shall be read in context and construed

according to the rules of grammar and common usage.”) A statute will be invalidated

if it fails to give a person of ordinary intelligence a reasonable opportunity to know

what conduct is prohibited. See State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim.

App. 2006).

In concluding section 42.07(a)(7) is not unconstitutionally overbroad, this

Court rejected similar overbreadth arguments in Grohn. See 612 S.W.3d at 82-84.

This Court found that Scott was applicable to the case, that the “communicative

conduct” listed in section 42.07(a)(7) was “[a]lmost identical to the communicative

restrictions in 42.07(a)(4),” and, under Scott, the provision is constitutional. Id. at

83. This Court also rejected the argument that the statute is overly broad because it

includes the term “electronic communication,” a broader form of communication

than telephone communication. Id. at 83-84. We also declined to follow Barton and

Karenev, the same cases Johnston cites in support of his arguments. Id. at 84. This

Court noted that we do not invalidate a statute as overbroad merely because it is

possible to image some unconstitutional applications, but instead must first

determine if the statute reaches a substantial amount of constitutionally protected

13
speech. Id. We follow this Court’s construction and precedent as outlined in Grohn.

We conclude that Johnston has failed to establish that either section 42.07(a)(7) or

section 42.072(a)(1) is unconstitutionally overbroad on its face. Issue two is

overruled.

Due Process

In his third issue, Johnston argues that, even if this Court finds section

42.072(a)(1) is constitutional, the indictment against Johnston violates the

constitutional guarantees of due process set out in the Fifth, Sixth, and Fourteenth

Amendments of the U.S. Constitution and Article I, Sections 10 and 19, and Article

5, Section 12(b), of the Texas Constitution. Specifically, Johnston argues that the

indictment fails to give adequate notice of the criminal conduct charged because the

indictment did not specify which electronic communications were used and on

which occasions those communications caused S.E. to feel harassed, annoyed,

alarmed, abused, tormented, embarrassed, or offended. Also, Johnston contends that

because the terms harass, annoy, alarm, abuse, torment, embarrass, and offend are

listed in the disjunctive, it is impossible to know which feeling was caused and for

Johnston to prepare his defense. According to Johnston, the indictment fails to list

the manner and means of violating the statute and, therefore, he cannot determine

which acts he can object to and request a limiting instruction for under Rule 404(b).

14
 The State argues that pretrial habeas is generally not available to test the

sufficiency of the charging instrument because the resolution on appeal requires

development of the trial record, and that Johnston has an adequate remedy at law

through direct appeal. In the alternative, the State argues that the indictment provides

adequate notice by tracking the statutory language and specifying the manner and

means by which Johnston committed the charged offense.

“Generally, pretrial habeas is not available to test the sufficiency of the

charging instrument or to construe the meaning and application of the statute

defining the offense charged.” Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App.

2010) (citations omitted). We agree with the State’s contention that Johnston’s

challenge to the indictment is not a cognizable claim via habeas corpus and that he

has an adequate remedy by direct appeal. See id.; Ex parte Weise, 55 S.W.3d at 619.

Issue three is overruled.

Having overruled Appellant’s three issues, we affirm the trial court’s denial

of Appellant’s Application for Pretrial Writ of Habeas Corpus and/or Motion to

Quash Amended Indictment.

AFFIRMED.

_________________________
LEANNE JOHNSON
Justice

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Submitted on May 21, 2020
Opinion Delivered April 14, 2021
Do Not Publish

Before Golemon, C.J., Kreger and Johnson, JJ.

16