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Case Number: 02-17-00188-CR
Judge: Bonnie Sudderth
Court: Court of Appeals of Texas, Second District, Tarrant County
Defendant's Attorney: Tarrant County District Attorney's Office
Description: Fort Worth, Texas criminal defense lawyer represented defendant charged with with electronic harassment.
The Texas Court of Criminal Appeals held that Penal Code Section 42.07(a)(7), the electronic harassment statute, "does not implicate the First Amendment" and "is not facially unconstitutional," rejecting Appellant Charles Barton's arguments to the contrary. Ex parte Barton, No. PD-1123-19, 2022 WL 1021061, at *6-7 (Tex. Crim. App. Apr. 6, 2022); see Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec. 42.07, 1973 Tex. Gen. Laws 883, 956-57 (amended 2001) (current version at Tex. Penal Code Ann. § 42.07(a)(7)). Now on remand, we turn to Barton's only remaining issue: whether the trial court erred by denying his motion to quash because, Barton claims, his charging instrument is insufficiently specific to give him adequate notice of the offense.
As noted in our initial opinion, "we have no jurisdiction to review interlocutory orders unless that jurisdiction has been expressly granted by law, and no law authorizes an interlocutory appeal of an order denying a motion to quash." Ex parte Barton, 586 S.W.3d 573, 577 n.8 (Tex. App.-Fort Worth 2019) (op. on reh'g), rev'd, 2022 WL 1021061; see Ex parte Alvear, 524 S.W.3d 261, 263 (Tex. App.-Waco 2016, no pet.); see also Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991) ("The courts of appeals do not have jurisdiction to review interlocutory orders unless that jurisdiction has been expressly granted by law.").
Texas Penal Code - PENAL § 42.07. Harassmen
(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:
(1) initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene;
(2) threatens, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of the person's family or household, or the person's property;
(3) conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury;
(4) 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;
(5) makes a telephone call and intentionally fails to hang up or disengage the connection;
(6) knowingly permits a telephone under the person's control to be used by another to commit an offense under this section; or
(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.
(b) In this section:
(1) “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.
(2) “Family” and “household” have the meaning assigned by Chapter 71, Family Code.
(3) “Obscene” means containing 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.
(c) An offense under this section is a Class B misdemeanor, except that the offense is a Class A misdemeanor if:
(1) the actor has previously been convicted under this section; or
(2) the offense was committed under Subsection (a)(7) and:
(A) the offense was committed against a child under 18 years of age with the intent that the child:
(i) commit suicide; or
(ii) engage in conduct causing serious bodily injury to the child; or
(B) the actor has previously violated a temporary restraining order or injunction issued under Chapter 129A, Civil Practice and Remedies Code.
Outcome: Appeal dismissed for want of jurisdiction.