OWENS, KEVIN J. v. the State of Texas

In the Court of Criminal
Appeals of Texas
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No. PD-0075-24
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KEVIN J. OWENS, Appellant

v.

THE STATE OF TEXAS

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On Appellant’s Petition for Discretionary Review
From the Seventh Court of Appeals
Bexar County
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YEARY, J., filed a dissenting opinion.

In Ex parte Barton, this Court declined to conduct a First
Amendment “overbreadth” analysis to determine the constitutionality
of Section 42.07(a)(7) of the Texas Penal Code. 662 S.W.3d 876, 885 (Tex.
Crim. App. 2022), cert den. 143 S. Ct. 774 (2023); TEX. PENAL CODE §
OWENS – 2

42.07(a)(7). Why? Because the statute “does not regulate speech, and
therefore does not implicate the free-speech guarantee of the First
Amendment,” and therefore, “the statute is not susceptible to an
overbreadth challenge.” 1 Barton, 662 S.W.3d at 885; see also Ex parte
Sanders, 663 S.W.3d 197, 216 (Tex. Crim. App. 2022), cert den. 143 S.
Ct. 774 (2023) (concluding that the statute “proscribes non-speech
conduct that does not implicate the protections of the First Amendment,
although elements of speech may be employed to commit the offense”).
Today the Court declares that the same statute was applied in
such a way that it infringed upon Appellant’s First Amendment free-
speech guarantee. Why? Because elements of speech were, in fact,
employed to commit the offense. 2
It seems to me that many, if not most, instances in which the
statutory provision will have been violated will employ some elements
of speech. After all, the statute proscribes repeated harassing electronic
communications, and most electronic communications will involve an
element of speech. I thought that the point of the Court’s decisions in

1 In other contexts, I have let my concerns about blanket and uncritical

state court application of the First Amendment overbreadth doctrine be known.
See, e.g., Whillhite v. State, 601 S.W.3d 363, 364 (Tex. Crim. App. 2020) (Yeary,
J., concurring), and cases cited therein. I will say no more about that today.

2 It seems that the Court believes the First Amendment protects a
former client’s right to bombard his former therapist—another private
person—with repeated emails and electronic communications, some sent from
faked Facebook accounts, and including some sent at hours between 10:00 p.m.
and 3:00 a.m., of a character seemingly designed to harass, annoy, alarm,
abuse, torment, embarrass, or offend. The First Amendment protects a lot. But
I do not believe it protects a person’s right to bombard another private person
with a barrage of repeated electronic communications of a kind designed, and
reasonably likely, to elicit those responses.
OWENS – 3

Barton and Sanders was to make clear that prosecution under this
provision is not on account of the speech per se—which is essentially
incidental—but that it is for the obnoxious repetition of the electronic-
communication format with the specific intent to harass. 3
Perhaps I am wrong about that. But if, in fact, the Court is correct
today to say that the statute will infringe upon First Amendment rights
anytime the electronic communication involves—well, communication—
then it is difficult to understand how the members of this Court who
joined the majority in Barton could have concluded there that an
overbreadth analysis was obviated, much less that free speech is not
even implicated. It seems by the Court’s opinion today that the statute
will prove to be unconstitutional as applied much more often than not.
And it is hard to square that with what the Court concluded in Barton
and Sanders.
On that basis, I respectfully dissent.

FILED: June 4, 2025
PUBLISH

3 Indeed, in many if not most Section 42.07(a)(7) cases, the content of

the electronic communication will be highly relevant, if not the best evidence,
to establish the elemental specific “intent to harass, annoy, alarm, abuse,
torment, embarrass, or offend another[.]” TEX. PENAL CODE § 42.07(a). But
that does not mean that the accused is being prosecuted for the content of the
communication itself rather than for the repetitive conduct perpetrated with
(as evidenced by the communication) the required pernicious intent. “[I]t has
never been deemed an abridgment of freedom of speech . . . to make a course
of conduct illegal merely because the conduct was in part initiated, evidenced,
or carried out by means of language, either spoken, written, or printed.”
Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 62
(2006) (emphasis added) (citation omitted).