Page 38 - TPA Journal March April 2019

Joe C. Tooley, Legal Digest Editor
Joe C. Tooley, Attorneys & Counselors, Rockwall, Texas
www.TooleyLaw.com 972-722-1058

TEXAS POLICE ASSOCIATION

LEGAL DIGEST

March/April 2019

AUTHOR’S NOTE: It is the goal of this submission to extract those portions of relevant appellate
opinions or the syllabus of the legal reporter which bear directly upon law enforcement methods
and provide guidance for officers on an operational level. Much of the information pertaining to
these cases is lifted verbatim from the court opinion or syllabus with independent analysis inserted
as appropriate. Due to clarity for training purposes, the distinction between quotes from the
opinions and inserted analysis is not always identified and legal citations within the opinion are
often omitted. Emphasis is placed upon reported decisions from the Fifth Circuit Court of Appeals
and the Texas Court of Criminal Appeals.

PEN. CODE SECTION 25.07 IS is not overbroad because it does not reach a
CONSTITUTIONAL. substantial amount of constitutionally protected
In this case, we consider the constitutionality of speech, in that it applies only to a limited number
Penal Code Section 25.07(a)(2)(A). Under that of people whose communications have been
statute, the State may prosecute an individual who restricted by a judge through a bond or protective
has intentionally or knowingly communicated in a order, and it prohibits only communications that
“threatening or harassing manner” with another are intentionally or knowingly made in a
person in violation of a judicially issued protective threatening or harassing manner towards
order or bond condition. particular protected individuals. We similarly
Wagner, appellant, was charged and convicted conclude that the statute, as applied to appellant’s
under that statute after a jury determined that he conduct, is not impermissibly vague because the
communicated with his estranged wife, Laura, in a plain statutory terms are such that they would
harassing manner in violation of a protective order afford a person of ordinary intelligence a
that had been issued against him for her protection reasonable opportunity to know that his course of
due to a history of family violence. The court of conduct would be prohibited. Accordingly, we
appeals affirmed appellant’s conviction on direct will affirm the court of appeals’s judgment
appeal over his challenge to the statute’s upholding appellant’s conviction.
constitutionality on overbreadth and vagueness
grounds under the First and Fourteenth Wagner v. State, No. PD-0659-15, Tex. Crim.
amendments to the federal Constitution. We agree App. Feb. 14, 2018.
with the court of appeals that the statute, if
interpreted in accordance with its plain meaning,

March/April 2019 www.texaspoliceassociation.com • 866-997-8282 27