dissenting.
That the statute before us is at once impermissibly vague and overbroad on its face is manifest. Patent ambiguity of the statute is revealed by the varying interpretations and competing constructions of phrases in the opinions of the majority and of Judge Roberts’ dissent. Similarly, they hypothesize limiting considerations or expansive applications that serve to demonstrate its overbreadth. Needless to elaborate, vagueness and overbreadth in a penal proscription that implicates communication soon erode fundamental freedoms which thrive on discourse. The Court should hold the statute unconstitutional, and be done with its threats to society. See State v. Blair, Ore., 601 P.2d 766, 26 CrL 2331 (1979), holding an harassment by communication statute invalid.
Refusing to do so, the majority will rue this day it carries. So preoccupied with denouncing what it sees as a communication motivated by spite,1 the majority tortures statutory terms such that “manner” is turned into a state of mind.2 Assuming arguendo that the statute may be constitutionally applied, the majority’s gloss rules out many conceivable “coarse and offensive” ways of acting-the acceptable meaning of “manner”-that are not motivated by spite or other ill feeling. To twist behavior into attitude in order to uphold this conviction is, in my view, to create a dangerous precedent.
Yet, the dissenting opinion by our brother Roberts, admirable for its penetrating re*876search into the history leading to legislative enactment of the statute, is not convincing in providing meaning to this same phrase.3 To me, at least, it is not “clear that ‘coarse’ refers to dirty language.”
The single sentence that states the offense in terms of communicating “in vulgar, profane, obscene, or indecent language or in a coarse and offensive manner” 4 belies the notion that an otherwise careful scrivener5 used “manner” when he really meant “language.” Rather, it would seem he intended that which wrote i. e., that one commits an offense, paraphrasing it as pertinent here,6 when he communicates in writing in a coarse and offensive manner and thereby intends to or does annoy or alarm.
Given this interpretation of the key statutory term, I agree with Judge Roberts that the proof failed to show an offense was committed, for dispatching a clipped advertisement (that is itself published in exercise of commercial free speech)7 affixed to a regular postcard is simply not communicating in a coarse and offensive manner-regardless of the spiteful attitude of its sender or the distressful reaction of its recipient. The majority errs egregiously in finding that an interest of the State of Texas advanced by this statute is “in protecting citizens . .. [against] ... intrusion” from “spite messages,” and compounds its error by upholding this conviction on the theory that appellant intended to cause “distress.” Whatever her intent, if she did not act in a manner proscribed by § 42.-07(a)(1) she is not guilty of the offense charged. What the Court ends up approving is imposition of a criminal penalty for having a certain state of mind-“spite”rather than for engaging in proscribed conduct.
As to the facial constitutionality of § 42.07(a)(1), what it penalizes is a communication by one of two means that in its content or manner is intended to or results in annoyance or alarm. The means are by telephone-speech-or by writing-press; the content must be “dirty” or the manner coarse and offensive. That these prescribed means and the described manner of communicating--“communicating,” the very essence of the First Amendment and Article I, Section 8 of our Bill of Rights-may not be denied by law cannot be constitutionally disputed. Only when intended or actual consequence of communicating begins to become more conduct than speech is constitutional regulation permitted. Still, as made clear by the authoritative decisions of our courts, many of which are discussed and cited by Judge Roberts in Part III of his dissenting opinion, some citizens may and do communicate in a coarse and offensive manner intending all the while to annoy or alarm.8 Criminalizing them is as unwise as it is unconstitutional.
*877I join in Part III, dissenting for reasons stated therein as well as here.
ONION, P. J., concurs in dissent.. Since “spite” is usually a noun, sometimes a verb but never an adjective, the meaning intended by the majority in characterizing the clipped advertisement at issue as a “spite message” is far from clear to me, but my interpretation surely is close to the mark: a message that is spitefully sent.
. By definition “spite” is a mean or evil feeling toward another, petty ill will or hatred-a mental attitude.
. The weakness of persuasion comes from its focusing on what the drafters of the earlier model penal code and the 1970 proposed revision of our penal code indicated they intended, rather than the history made in and by the Legislature tending to show its intent. Thus, we are left with a suggestion by the commentaries that the Legislature was forgetful and a thought by Judge Roberts that it was cautious (Dissenting opinion, page 870).
. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. Judge Roberts remarks that the Legislature paid enough attention to the term to delete the word “obviously” in the phrase “a coarse and obviously offensive manner.”
. It was not alleged nor contended here by the State, as indeed it reasonably could not be, that the words of the published advertisement amount to “vulgar, profane, obscene, or indecent language.” '
. Bigelow v. Virginia, 421 U.S. 809, 95" S.Ct. 2222, 44 L.Ed.2d 600 (1975).
. Members of the majority live in splendid isolation not to have pressed upon them the strident tract of political dissent, religious zealotry, charitable plea, insistent solicitation, and assorted exhortations and damnations-all in home or at front door. Annoying and aggravating though they be, the law need not still such expressions. In all good spirit I suggest the majority should recognize and acknowledge them by saying that in extending the former *877proscription of harassment by telephone, the Legislature reached out and touched someone whose written expressions are constitutionally protected.