DISSENTING OPINION
ALCALA, J.,filed an opinion dissenting to the denial of Appellant’s Motion for Rehearing in which JOHNSON and COCHRAN, J.J., joined.
I respectfully dissent from this Court’s decision to deny the motion for rehearing filed by Elisa Merrill Wilson, appellant. I would grant rehearing to address appellant’s challenge to the constitutionality of the telephone harassment statute as it has now been interpreted by this Court to permit, for the first time, a conviction based on only two telephone calls that might occur months, years, or perhaps even decades, apart.1
In Scott v. State, this Court stated, “Here, we believe that the Legislature intended the phrase ‘repeated telephone communications’ to mean ‘more than one telephone call in close enough proximity to properly be termed a single episode,’ because it is the frequent repetition of harassing telephone calls that makes them intolerable and justifies-their criminal prohibition.” Scott v. State, 322 S.W.3d 662, 669 n.12 (Tex.Crim App.2010) (emphasis added). In reliance on this Court's statement of the law in Scott, and citing to an opinion by a federal district court for authority on the period of time that could be considered to be “in close enough proximity,” the court of appeals determined that the statute would not support a conviction when the defendant’s calls to the complainant were “separated by periods of months or years.” Wilson v. State, 431 S.W.3d 92, 95 (Tex.App.-Houston [1st Dist.] 2013). Now, within a relatively short period of time, this Court has changed its mind. Wilson v. State, No. PD-0755-13, 448 S.W.3d 418, 421-22, 2014 WL 4627264, at *4-5 (Tex.Crim.App. Sept. 17, 2014). In an about-face from our recent precedent in Scott, this Court now describes the applicable law by noting that “the phrase ‘repeated telephone communications’ does not require the communications to occur within a certain time frame in relation to one another.” Id. at 430. Had this Court taken its current position in Scott, then the First Court of Appeals would not have focused on the fact that appellant “left just two of the six messages over a thirty-day period” in reaching its decision that the evidence was insufficient. Wilson, 431 S.W.3d at 96.
Now that this Court, for the first time in this case, has changed its position regarding the requirements for establishing the offense of telephone harassment, appellant has filed a meritorious motion for rehearing in which she argues that this Court’s current interpretation “has created a vagueness and overbrea[d]th problem with the statute, which must now be raised by *431appellant.” Appellant explains that “under the Scott interpretation of the statute there was no clear vagueness or over-brea[d]th problem[,] but under the Wilson interpretation there is.” Because there had been no reason to challenge the vagueness or overbreadth of the telephone harassment statute as this Court had interpreted its requirements in Scott, appellant had no reason to assert that challenge until this Court’s reformulation of the law in this case. Appellant should not be faulted for failing to raise what would have been a frivolous argument under the law as it existed when she filed her appeal, an argument that would have essentially asked this Court to cling to its existing precedent and not to change it.
Appellant did not have a crystal ball to look into the future and see that this Court would reinterpret the telephone harassment statute in her case. For that reason, I would grant appellant’s motion for rehearing and address both the merits of the initial appeal and her current argument that permitting a conviction for telephone calls that are not in close proximity renders the statute unconstitutionally vague and overbroad.
. The statute of limitations for telephone harassment, a class B misdemeanor, is two years. See Tex. Penal Code § 42.07(c); Tex. Code Crim. Proc. art. 12.02. So long as one call occurred within the limitations period, the evidence would likely be legally sufficient, under this Court’s current formulation of the law, for a call in 2000 and a call in 2014. See, e.g., Tita v. State, 267 S.W.3d 33, 35 n. 1 (Tex.Crim.App.2008) (noting that the limitations period for aggregated theft begins to run on the date of the last theft, i.e., the end date of a "scheme or continuing course of conduct”).