___ S.W.3d ___

(Not yet designated.)

Court of Criminal Appeals of Texas. Filed: June 4, 2025.

Mr. Owens was prosecuted for electronic harassment under section 42.07(a)(7) of the Texas Penal Code for sending repeated unpleasant but nonthreatening texts to his psychotherapist.

Bennett & Bennett have been fighting this statute for over a decade. It’s plainly a facially unconstitutional content-based restriction on protected speech, void under the First Amendment. But the Court of Criminal Appeals has consistently disagreed with us on this. Most recently, they upheld the statute in Barton and Sanders because—they claimed with no basis in Constitutional law—it did not “implicate” the First Amendment.

(Barton and Sanders are instructive, even though we lost them, because they demonstrate how concerted appellate litigation of an important issue can hem the courts in, shutting off avenues of escape until they are forced to write silly things that will not hold up when the U.S. Supreme Court finally grants review.)

In this case, Mr. Owens had a jury trial in Bexar County, Texas. We knew that the as-written challenge to the statute was not likely to succeed, so we advised his lawyers on preserving an as-applied challenge to the statute: Mr. Owens’s speech was constitutionally protected, so the State’s use of the statute to punish him for its content was unlawful.

We took the appeal up to the San Antonio Court of Appeals, which administratively transferred it to the Amarillo Court of Appeals (here’s that case). The Amarillo Court affirmed the judgment of the trial court.

We filed a petition for discretionary review. The Court of Criminal Appeals granted it (here’s that case). After reviewing our briefs, a divided court agreed with us that the statute had been unconstitutionally applied to Mr. Owens. The legal effect was to acquit him of the harassment.

This is a really important case, because it is one of very few cases in which the Court of Criminal Appeals has held a statute to be unconstitutional as applied under the First Amendment. Even though the statute is (per the Court of Criminal Appeals) not unconstitutional on its face—it can be used to prosecute people—it can’t be used to prosecuted people for this kind of speech.

And the truth—which the court failed to recognize in Barton and Sanders when it upheld the statute against our facial challenge—is that most electronic-harassment cases are just like this one. This case will gut the State’s use of this statute to punish people for saying things that are unpleasant and hurt other people’s feelings, but don’t threaten harm.

In his dissent in this case, Judge Yeary observed that the outcome here is inconsistent with Barton and Sanders. If the statute doesn’t implicate the First Amendment, how can it be void as applied under the First Amendment? That’s exactly right, and it’s a reason to revisit Barton and Sanders.

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