In March 2005, Nick Karenev sent a series of emails to his soon-to-be ex-wife, Elena.
These messages predicted, among other things, that she would be sent to a mental hospital, or to prison, and that her mother would be paralyzed. (At trial, he would testify he’d consulted a fortune teller, and was merely relaying the things he’d been told.) He called her a “dirty whore,” and said it was about time for her to pay for all the “filthy deeds” which she had committed during her “pathetic life.”
Texas’ “Harassment” statute, Penal Code 42.07, prohibits, among other things, sending annoying email messages. It also prohibits “embarrassing” messages, and those meant to “torment” or “alarm”. Also prohibited are all “electronic communications” that are “reasonably likely” to do any of those things, or to “harass,” “torment” or “offend”.
Electronic communications, the statute says, are communications sent “in whole or in part by wire [or] radio…” Electronic mail is sent by wire and radio, as are all other internet communications. (WiFi, for example, is a kind of radio.) (If you’ve ever used the internet, then you’ve used electronic communications.)
The communications must be “repeated”. Meaning “more than once,” presumably – though the statute doesn’t say so. (It doesn’t say how many times you have to communicate, before communication becomes “repeated”. The dictionary definition of repeat is to say or do something more than once.)
It also doesn’t require that any actual person actually be offended, or that the message be sent to anyone in particular. The statement, or communication, need only be intended to offend, and be “reasonably likely” to do it. Ms. Karenev, for example, would not need to testify that she was offended, or alarmed by the emails – or for that matter, that she’d even read them.
Finally, it doesn’t say it has to be the same communication that is repeated – merely that some form of communication happened more than once.
Mr. Karenev was convicted, and appealed. He argued Penal Code section 42.07(a)(7) was unconstitutionally vague, and the Court of Appeals – the next highest court after the trial level – agreed, reversing his conviction, and effectively acquitting him.
Karenev relied on a Fifth Circuit (Federal) case that struck down the 1983 version of the statute, which had made it a crime to “recklessly annoy” someone (among other things). In that case the Fifth Circuit said that words like “annoy” and “alarm” are inherently vague, at least when applied to the First Amendment freedoms. (The 1993 version of the statute was also struck down, for similar reasons.)
The story does not end there, however.
The prosecution appealed to the highest court, which said Mr. Karenev had no right to appeal his conviction in the first place. Because he’d failed to object before trial, he’d waived – or given up – his right to be tried on constitutional laws.
“The State and the trial court should not be required to anticipate that a statute may later be held to be unconstitutional,” said Sharon Keller, writing for the Court.
Or, put another way, “If we can’t win the argument, we’ll refuse to hear it in the first place.”
In 1994 Sharon Keller ran on a platform in which she promised to be a “pro-prosecution” judge. She’s been with us ever since.
“I guess what pro-prosecution means is seeing legal issues from the perspective of the state instead of the perspective of the defense,” she told The Dallas Morning News.
Think about it for a minute. What would happen to, say, a pro- football referee, who went around saying he was “pro-Dallas Cowboys”? Wouldn’t even Cowboys fans realize that was unfair?
Why do we tolerate it on our state’s highest court?
