DISSENTING OPINION ON STATE’S MOTION FOR REHEARING
ROBERTS, Judge,dissenting.
I.
The court says that “the gravamen of the violation of Section 42.07(a) as charged in the information is the intent to annoy and alarm by means of a ‘coarse and offensive’ message.” It is ironic that the trial court’s charge in this case permitted the jury to convict on lesser proof than that, a fundamental error which requires reversal.
A prosecution under Section 42.07(a)(1)1 requires proof of two culpable mental states: (1) A person must have intention ally communicated, and (2) he must have either (a) intended to annoy or alarm the recipient or (b) intentionally, knowingly, or recklessly annoyed or alarmed the recipient.
The information in this case alleged that the appellant
“did unlawfully knowingly and intentionally communicate in writing in a coarse and offensive manner with another, namely; ANNE KEISER, and by this action did intend to annoy and alarm and did annoy and alarm the said ANNE KEISER, the recipient . .. . ”
The allegation “knowingly .. . communicate” is anomalous since such conduct is not an offense. This does not make the information defective, but it is a portent of error to come in the charge. The allegation, “did intend to annoy and alarm and did annoy and alarm,” has at best only one culpable mental state: intent; there is no allegation of knowingly (or recklessly) annoying and alarming.
The court’s charge to the jury was (emphasis supplied):
“MEMBERS OF THE JURY:
“The Defendant, Shirley Kramer, is charged with the offense of harassment, *869alleged to have been committed in Dallas County, Texas, on or about the 31st day of December, 1975. To this charge the Defendant has pleaded not guilty.
“I now give you the law that applies to this case:
“A person commits the offense of harassment if he intentionally communicates in writing in a coarse and offensive manner and by this action intentionally or knowingly annoys or alarms the recipient.
[Statutory definitions of ‘intentionally’ and ‘knowingly’ were given.]
“Therefore, if you believe from the evidence beyond a reasonable doubt that the Defendant, Shirley Kramer, did, in Dallas County, Texas, on or about the 31st day of December, 1975, knowingly or intentionally communicate in writing in a coarse and offensive manner, to-wit:
and by such action intentionally or knowingly annoyed or alarmed the recipient, Ann Keiser, you will find the Defendant guilty.
“If you do not so believe, or if you have a reasonable doubt thereof, then you will find the Defendant not guilty.”
It will be noted that the jury was authorized to convict if the appellant knowingly communicated, which is not an offense, for only intentionally communicating is proscribed; and the jury was authorized to convict if the appellant knowingly annoyed or alarmed the recipient, which was not alleged in the information. Charges that authorize conviction on culpable mental states that do not constitute an offense, or which were not alleged in the pleading, or both, are fundamentally defective. Hutchins v. State, 590 S.W.2d 710 (Tex.Cr.App.1979). See generally Sattiewhite v. State, 600 S.W.2d 277 (Tex.Cr.App.1980); Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979).
In cases of this type we have not required a showing of harm, although some members of the court would impose such a requirement. See, e. g., Dowden v. State, 537 S.W.2d 5 (Tex.Cr.App.1976). If a showing of harm were required before we would reverse, it would be apparent in this case. The communication was not addressed to Anne Keiser, who was alleged to be the recipient; it was addressed to her husband John Keiser. The jury easily could have believed that the appellant only intended to communicate with John or to annoy John, but that she knew that she would communicate with or annoy Anne. Such a state of facts would not constitute the offense which was alleged by the State in this information, yet the jury was authorized to convict on it.
The charge reflects fundamental, reversible error. The court has not even addressed it.
II.
The panel was correct in holding that there was no evidence of communication “in a coarse .. . manner,” although its explanation of the meaning of that phrase was not exactly correct. The history of the phrase demonstrates that “coarse” describes, and must have been intended by the Legislature to describe, what might colloquially be called dirty language. Only by ignoring this history can the court conclude otherwise.
The antecedent of the present harassment statute was Article 476 of the old Penal Code (1965 Texas General Laws, chapter 575), which made it an offense to use “any vulgar, profane, obscene, or inde*870cent language over or through any telephone.” Obviously, this statute dealt with dirty language.
To replace the old term “vulgar, profane, obscene, or indecent language,” the drafters of the new Penal Code chose the term “coarse and obviously offensive manner.”2 The drafters made it clear that “coarse” refers to dirty language:
“The terms ‘coarse and obviously offensive’ seemed to the committee as precise as the nature of this offense permits. * * * (The committee preferred the term ‘coarse’ to terms such as obscene, lewd, profane, and indecent, because this term, unlike the others, is devoid of archaic overtones that clutter, rather than clarify, its meaning.)”
State Bar of Texas, Texas Penal Code: A Proposed Revision 292 (Final Draft 1970). The drafters also indicated that they intended no change in the scope of the harassment law, which (as we have noted) punished dirty language:
“This section, which is concerned primarily with obscene and harassing telephone calls, changes Penal Code art. 476 in only one respect. It does not punish the use of ‘vulgar, profane, obscene, or indecent language’ over a telephone unless this language is likely to annoy or alarm the recipient. In the committee’s view, the morality of persons who choose to communicate with each other in crude language over the telephone should not be the concern of the criminal law.”
Id. at 300 (emphasis supplied).
The drafters expressly acknowledged (Id. at 291-292, 300) their reliance on the Model Penal Code’s harassment and disorderly conduct statutes, which use the term “offensively coarse.” Therefore it is useful to consult the comment in American Law Institute, Model Penal Code: Tentative Draft No. 13 6 (1961) (footnotes omitted):
“It is not easy to select terms which will cover such unjustified public annoyances while safeguarding the right to say unpopular things. * * * Public ‘profanity’ is frequently penalized by statute or ordinance, but the Advisory Committee believed that this term came too close to making ‘sacrilege’ criminal. ‘Indecent’ is either too narrow, if it be thought to be limited to the obscene, or possibly unconstitutionally vague if not so limited. The word ‘coarse’ suggested in clause (b) makes it clear that we intend to include scatology as well as obscenity, ... although it is impossible to specify precisely the degree of shocking impropriety of language required.. . . ”
Although the term “in a coarse and obviously offensive manner” was intended to replace the term “vulgar, profane, obscene, or indecent language,” the Legislature saw fit to include in the harassment statute both the old term and the new term “in a coarse and offensive manner.” S. Searcy & J. Patterson, in “Practice Commentary,” 4 Vernon’s Texas Codes Annotated: Penal Code 168 (1973), suggest that the Legislature apparently forgot to delete the new term. This seems unlikely, since the Legislature paid enough attention to the term to delete the word “obviously.” Perhaps the Legislature was cautious enough to retain an old term of proved validity 3 in case the new term failed to pass constitutional muster.
At any rate, the history makes it clear that “coarse” refers to dirty language. In a prosecution such as this one for communicating “in a coarse and offensive manner,” there must be proof that the communica*871tion was both coarse and offensive. If any history beyond the plain language of the statute be needed, the drafters of the term may be quoted in their comment to the disorderly conduct statute (which included the same term):
“In the committee’s view, it would have been inappropriate to prohibit all ‘offensive’ utterances in a public place, since that term might have been construed to prohibit the expression of offensive ideas, a constitutionally protected activity. * * Similarly, in the committee’s opinion, it would have been inappropriate to prohibit all ‘coarse’ utterances in a public place, since coarse language is not offensive in certain social contexts. The two operative terms therefore limit each other. An utterance, gesture, or display must be both coarse and obviously offensive before it can be punished.”
State Bar of Texas, Texas Penal Code: A Proposed Revision 292 (Final Draft 1970). Accord, American Law Institute, Model Penal Code: Proposed Official Draft 224 (1962) (“Offensively” was added; “ ‘Coarse’ alone is insufficient since in many groups and settings coarse language is not offensive to the hearers.”).
In this case, the communication of the Crypt-a-Crib advertisement may have been offensive to Anne Keiser. It may have been a spite message, as the court says. But it was not coarse-dirty — and therefore it did not fall within the ambit of the statute. As a matter of state law, the proof has failed to show an offense. The court should direct the entry of a judgment of acquittal.
The Code Construction Act (Texas Revised Civil Statutes Article 5429b-2) provides that we may consider legislative history (Sec. 3.03), and that words that have acquired a particular meaning, whether by legislative definition or otherwise, shall be construed accordingly (Sec. 2.01). These sections of the Code Construction Act have been made specifically applicable to the Penal Code. V.T.C.A., Penal Code, Section 1.05(b). The court unaccountably ignores these statutes. Astonishingly it turns to a statute that is not even applicable: Article 3.01 of the Code of Criminal Procedure, which by its own terms applies only to, “All words, phrases and terms used in this Code ..The term in question appears in the Penal Code, not in the Code of Criminal Procedure.
Even by its own, inapplicable terms, Article 3.01 cannot carry the day for the majority. It requires words “to be taken and understood in their usual acceptation in common language.” What does “coarse” mean, according to the court? The only hint of an answer is the court’s statement that, “The instant case is precisely the situation where the alternative of a ‘coarse and offensive manner’ is necessary to vindicate the rights of the recipient of spite messages and the State’s interest in protecting citizens from such intrusion.” “Coarse,” then, must mean “spiteful”; we are to believe that the usual acceptation of “coarse” in common language is “spiteful.”
III.
The Code Construction Act, Section 3.01(1), creates a presumption that the Legislature intended to enact a statute that was in compliance with the United States Constitution. By its construction the court could have saved this statute, but it has chosen to make the statute vague and over-broad.
I begin with a word about stare decisis in this area. The court disposes of the contentions that “coarse,” “offensive,” “annoy,” and “alarm” are vague by citing Collection Consultants, Inc. v. State, 556 S.W.2d 787 (Tex.Cr.App.1977). That case purported to hold that “annoy” and “alarm” are not vague, but it never actually addressed the issue. The opinion did two things. First, it quoted in full the opinion in Schuster v. State, 450 S.W.2d 616 (Tex.Cr.App.1970):
“In her sole ground of error appellant challenges the constitutionality of Article 476, supra.
*872“In Alobaidi v. State, Tex.Cr.App., 433 S.W.2d 440, this Court in an opinion by Presiding Judge Woodley upheld the constitutionality of said statute. We adhere to that decision. See also LeBlanc v. State, Tex.Cr.App., 441 S.W.2d 847. As we view it, such statute is not violative of the First Amendment, United States Constitution or Article I, Sec. 8, Texas Constitution, Vernon’s Ann.St.”
Collection Consultants’ reliance on Schuster is a non sequitur; vagueness is a Fourteenth Amendment (due process) problem which is not disposed of by a First Amendment case.
The second thing that Collection Consultants did was to cite LeBlanc v. State, 441 S.W.2d 847 (Tex.Cr.App.1969), a case which is another non sequitur. The entirety of its holding was (441 S.W.2d at 851):
“The remaining ground for reversal presents the contention that Art. 476 V.A.C.P., defining the offense charged in the complaint and information, is void because too vague and indefinite.
“The constitutionality of Art. 476, supra, was upheld by this court in Alobaidi v. State, Tex.Cr.App., 433 S.W.2d 440.”
Alobaidi had nothing to do with vagueness: the only question was whether there could be a statutory exception for business calls.
In other words, this Court’s only response to vagueness attacks on this statute and its predecessor has been to cite irrelevant cases without further discussion. The unspoken principle behind this method of deciding cases is that, if one kind of constitutional attack on a statute has been rejected, all other kinds of constitutional attacks can be rejected without discussion. Stare decisis does not operate in this fashion. See Comment, “The Texas Harassment Statute,” 17 S.Tex.L.J. 283, 294-295 (1976). Instead of continuing this illogical analysis (or lack of analysis) today, the court should take up the merits of the vagueness contention.
The court also avoids the vagueness question by refuting an argument that the appellant did not make, while ignoring the one he did make. The appellant does not argue that “any recipient of a message may decide what that recipient thinks is ‘coarse or offensive.’” Majority Opinion at 866. His argument is that, “This particular statute fails to advise what will constitute an offense for it leaves the question of whether or not an offense is committed up to the annoyance or alarm of the recipient.” Appellant’s brief at 7 (emphasis supplied). The appellant expressly relies on the same argument made by Prof. Steele in “The Impact of the New Penal Code on First Amendment Freedoms,” 38 Texas Bar Journal, 245, 253 (1975):
“In addition to the obvious First Amendment difficulties, Section 42.07 looks like a textbook case of vagueness and overbreadth. 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.”
This was the problem that afflicted the ordinance in Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). The ordinance made it an offense for three or more persons to assemble on a sidewalk, etc., “and there conduct themselves in a manner annoying to persons passing by, or occupants of adjacent buildings.” Just as this court does today, the Ohio Supreme Court held that, “The word ‘annoying’ is a widely used and well understood word; it is not necessary to guess its meaning. * * * [T]he standard of conduct which it specifies is not dependent upon each complainant’s sensitivity....” City of Cincinnati v. Coates, 21 Ohio St. 66, 69, 255 N.E.2d 247, 249 (1970). In holding that the statute was unconstitutionally vague, the Supreme Court said (402 U.S. at 613-614, 91 S.Ct. at 1688) (footnote omitted):
*873“But the court did not indicate upon whose sensitivity a violation does depend — the sensitivity of the judge or jury, the sensitivity of the arresting officer, or the sensitivity of a hypothetical reasonable man.
“We are thus relegated, at best, to the words of the ordinance itself. If three or more people meet together on a sidewalk or street corner, they must conduct themselves so as not to annoy any police officer or other person who should happen to pass by. In our opinion this ordinance is unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct.
“Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. As a result, ‘men of common intelligence must necessarily guess at its meaning.’ Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322.”
By a pointed comparison (402 U.S. 613 n. 3, 91 S.Ct. 1687) to Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), where a statute that punished “offensive, derisive or annoying” words was upheld because the state court had given it a limited definition, the Supreme Court showed that the Ohio court had abnegated its responsibility to construe the ordinance in a constitutional way. Today our court does exactly the same thing by refusing to set a standard for “annoy” and “alarm.”4
“Coarse” is also left vague. If it can mean “spiteful,” who knows what else it can mean? People of common intelligence must necessarily guess at its meaning, and the job of guessing has been made harder today.
Aside from being vague, the statute is grossly overbroad. A statute is void for overbreadth if “it offends the constitutional principle that ‘a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected [First Amendment] freedoms.’ ” Zwickler v. Koota, 389 U.S. 241, 250, 88 S.Ct. 391, 396, 19 L.Ed.2d 444 (1967).
The court cures one overbreadth problem by construing the term “writing” to mean “writing ... in the nature of a letter or personal message.” The spectre of publishers of books, magazines, newspapers, handbills, and signs being prosecuted evidently was too much for the court.
But letters and personal messages are speech, and the freedom to write them is protected by our constitutions — or it was until today. By taking this statute outside the realm of dirty language, and by refusing to'put any definitional limitation on its operative words, 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 right of freedom of speech and press has broad scope. The authors of the First Amendment knew that novel and unconventional ideas might disturb the complacent, but they chose to encourage a freedom which they believed essential if vigorous enlightenment was ever to triumph over slothful ignorance.”
Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943) (footnote omitted). It is that right on which this statute intrudes. As Prof. Steele has remarked, “[T]he Harassment section is so broad that it includes callers [and writers] who have every right and reason to intentionally and knowingly annoy or alarm the recipient. ...” 38 Texas Bar Journal at 253 (1975).
*874The point is not that the appellant has a right to continue bothering the Reisers.5 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 of his duties is subject to being jailed.6 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.
The court finds a “constitutional” basis for this by misinterpreting Rowan v. United States Post Office Dep’t, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970). Rowan held that the First Amendment was not offended by a statutory scheme which required mailers of advertisements to remove from their mailing lists the names of recipients who notified the Post Office that they objected to the advertisements. The statute did not make it a crime to send such an advertisement, nor would the Constitution have tolerated such a statute. This is made clear by an opinion on which the Rowan court relied: Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943). There the petitioner was convicted of violating an ordinance which forbade the act of summoning a resident to his door (as by knocking) for the purpose of giving him an advertisement. Going door-to-door with handbills is an activity which is protected by the First Amendment, and the court held that the city could not punish it. The court said that a city could only punish those who called at a home in defiance of the previously expressed will of the occupant. 319 U.S. at 148, 63 S.Ct. at 865. Rowan does not authorize a state to punish protected speech if it is sent to a home, as the court holds today. Rowan and Martin stand for the proposition that a householder can keep unwanted speech out of his home by giving notice of his desire; the right to receive speech is personal to the recipient.7
The court’s misunderstanding of this doctrine is manifested in its misapplication of Rowan and Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). The court holds that this statute is not over-broad because the First Amendment freedom of speech may not intrude into the sanctuary of the home. It quotes Cohen at length to demonstrate that a person’s right to privacy (including the right to be free from unwelcome speech) is great when he is at home; the right is less compelling when he goes into the courthouse and is even less compelling in Central Park. Rowan likened this concept of privacy to the law of trespass; one may keep speech from intruding into the home. The right of privacy varies with the circumstances into which one puts himself.
The court turns this concept on its head by declaring that "the same considerations [of Cohen and Rowan ] apply . . ., a fortiori, to the person.” That is, the right of priva*875cy in the sanctuary of the home applies more strongly (a fortiori) to the person; a person has more privacy right as a person to be free from unwelcome speech than he has in his home. This is the opposite of what Cohen and Rowen held. The court, which began its argument by saying that the right of privacy in the sanctuary of the home saved this statute from overbreadth, ends by holding that the right of privacy is in the person rather than the home.
The insidious thing about this non sequi-tur is that the court goes on to say that prosecution may be had for writings “delivered to the recipient’s home or person.” Therefore this statute, which is supposed to be free from overbreadth because it protects the sanctuary of the home, may also be used to prosecute writings delivered to the person. And that is every written message, for there is no way to deliver a writing other than to the person.8 The “sanctuary of the home” justification completely disappears in the course of the holding.
If we gave proper consideration to the vagueness and overbreadth questions, we would hold that “coarse” involves dirty language and that “offensive,” “annoying” and “alarming” must be judged by the standards of a reasonable person. If we did so, we might save this statute. As it is we sanction an intrusion on free speech and we practically invite a federal court (which would respect any correct constitutional construction that we gave it; see, e. g., Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972)) to strike it down as void on its face. Then the citizens of Texas will have no protection from obscene telephone calls, which is the real purpose of this statute. Let them not then place the blame on the federal court, for it will belong here.
PHILLIPS, J., joins in this dissent.
. “(a) A person commits an offense if he intentionally:
“(1) communicates by telephone or in writing in vulgar, profane, obscene, or indecent language 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
. The draft version of section 42.07(a)(1) in Texas Penal Code: A Proposed Revision (Final Draft 1970) was:
“(a) An individual or corporation commits an offense if he intentionally:
“(1) communicates by telephone or in writing in a coarse and obviously offensive manner, and by this action intentionally, knowingly, or recklessly annoys or alarms the recipient; ... . ”
. The constitutionality of the old term had been upheld in, e. g., Schuster v. State, 450 S.W.2d 616 (Tex.Cr.App.1970).
. The term “offensive” may be said to be vague for much the same reason; offensive to whom?
. See note 7, infra. The appellant has standing to raise overbreadth arguments that do not apply to the facts of her case because we want to avoid the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975).
. Chief Justice Ellett of the Utah Supreme Court would certainly be hesitant about circulating copies of his opinion in Salt Lake City v. Piepenburg, 571 P.2d 1299 (1977), wherein he implied that some of his fellow justices were “depraved, mentally deficient, mind-warped queers” who should be impeached. 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.
.For this reason the Keisers, by injunction or peace bond, could stop the appellant from sending them mail. Why a prosecutor would have brought this prosecution into a private dispute is puzzling.
. By a footnote the court says the writing may be “delivered to a place personal to the complainant.” But if the Cohen rationale applies a fortiori to the person than to his house, then every place he happens to be is a fortiori a place more personal to him than his house.