Posted on 5/20/19

Both the United States Constitution and the Texas Constitution have been construed to bar vague statutes and statutes that are overbroad. In other words, statutes must be more targeted to pass constitutional muster. There have been several cases litigated in Texas courts in which  a defendant charges that the criminal statute is too vague or overbroad, whereby the statute should be struck down as unconstitutional. When a defendant makes the argument that a statute is too vague or overbroad, a court is challenged with determining whether the language in the statute is constitutional.

Determining Vagueness and Overbreadth

To note, the Texas Court of Criminal Appeals stated in the 2015 case of Johnson v. State that a charge of overbreadth is something to be used only sparingly. With that said, the Texas Court of Criminal Appeals also stated that a statute is vague or overbroad only when the statute bans something that is protected by the constitution and sweeps within its language a ban on something that is protected by the First Amendment. The recent case of in re Leonardo Nuncio provides a good example.

Leonardo Nuncio

Nuncio met with a woman at her residence where Nuncio went to interview the woman for a job at his restraunt. After the interview, the woman called the Laredo police, who came to enter a complaint. According to the woman, Nuncio stared at her breasts the whole time and made comments about the size of her chest. Also, the woman claimed that Nuncio asked her about her sex life.

The Laredo police department secured a warrant for his arrest. Nuncio was arrested for sexual harassment. At trial, Nuncio challenged the constitutionality of Texas’s anti-harassment statute, claiming that it was vague and overbroad.

Specifically, Section 42.07(a) of the Texas Penal Code provides that a person commits the offense of harassment if “with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person … initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene[.]” In Section § 42.07(a)(1), the term “obscene” is defined as “a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function.”

Nuncio argued that the statutes are overbroad because it criminalizes free speech and it is vague because it provides the police with too much discretion when enforcing the law.

The Court rejected his argument, reasoning that the statute does not criminalize free speech because obscenities are not protected speech. Engaging in certain speech is not protected if the purpose is to inflict emotional harm; speech is only protected if the primary purpose is to communicate an idea or an opinion or the like.

Furthermore, the statute, according to the court, are not overbroad because they are only applicable when the target person of the harassment feels annoyed, harassed, alarmed etc.  

Accused or a crime? Speak with the Dallas criminal defense firm of Christopher Abel.

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