Texas Electronic Harassment Law and Free Speech: How a Defense Lawyer Challenged an Unconstitutional Statute
Texas Electronic Harassment Law and Free Speech: How a Defense Lawyer Challenged an Unconstitutional Statute
Can the government make it a crime to send an electronic message intended to “annoy” another person?
At first, the answer may seem obvious. Harassment can be serious. Threatening or abusive communications can cause real harm, and the law has a legitimate interest in protecting people from stalking, threats, and repeated unwanted contact.
But the constitutional problem becomes clear when criminal liability depends on words such as “annoy,” “alarm,” “embarrass,” or “harass” without sufficiently explaining what those terms mean.
One person finds a message irritating. Another considers the same message funny. A parent repeatedly texts a teenager to mow the lawn. Divorcing spouses exchange hundreds of angry messages. A politician publishes provocative posts intended to embarrass an opponent. A listener dislikes a podcast and considers its hosts annoying.
Should any of those people face criminal prosecution?
In Episode 8 of Andrew & Andrew on Texas Criminal Defense, hosts Andrew Herreth and Andrew Decker speak with Tarrant County criminal defense attorney Tobias Lopez about a constitutional challenge to Texas’s electronic-harassment statute.
Lopez discusses representing Charles Barton, who was prosecuted after exchanging a large volume of text messages with his estranged wife during a divorce. What began as a misdemeanor harassment case developed into a significant First Amendment challenge before the Second Court of Appeals in Fort Worth.
The episode explores much more than one defendant’s messages. It examines the constitutional limits on criminalizing electronic speech, the dangers of vague laws, the importance of fair notice, unequal enforcement, charging-document deficiencies, preservation of appellate issues, and the practical work required to take a constitutional argument from a county criminal court to an appellate court.
A Misdemeanor Case with Major Constitutional Implications
Tobias Lopez was practicing with the Ed Jones Law Firm when the firm began representing Charles Barton in a misdemeanor harassment case.
The allegation arose under the portion of the Texas harassment statute addressing electronic communications. Although electronic communication may sound like a narrow category, it can include many ordinary forms of modern speech:
text messages;
emails;
social-media posts;
direct messages;
tweets;
photographs;
internet communications;
and other digitally transmitted content.
The firm recognized that harassment and stalking statutes had repeatedly faced constitutional challenges around the country.
The problem was not necessarily that legislatures lacked authority to prohibit genuine harassment. The problem was how those laws were written.
When a statute uses subjective terms without clear limits, citizens may not know what conduct is illegal. Police officers may reach different conclusions about identical communications. Prosecutors may choose to charge one participant in an argument while ignoring the other. Courts may be left to decide criminal liability based on personal reactions rather than objective standards.
Lopez was assigned to research whether the electronic-communications provision suffered from those defects.
His research centered on two related constitutional doctrines:
Vagueness
Overbreadth
Those doctrines became central to the defense.
What Makes a Criminal Law Unconstitutionally Vague?
A criminal statute should give an ordinary person fair notice of what conduct is prohibited.
That requirement serves a basic rule-of-law principle: people should not be punished under a law whose meaning they could not reasonably understand before acting.
Consider the word “annoy.”
What does it mean to annoy another person?
How irritating must the communication be?
Does the recipient have to feel annoyed?
Is the sender’s intent enough?
Would a reasonable person need to find the message annoying?
Does annoyance lasting a few seconds count?
Could repeated reminders from a parent qualify?
Could an aggressive collection email qualify?
Could a political advertisement qualify?
Without objective limits, the meaning may depend on the personal preferences of the recipient, police officer, prosecutor, judge, or jury.
Lopez illustrated the problem during oral argument with what he jokingly called the Weird Al defense.
He told the court that he found Weird Al Yankovic annoying, while his highly educated brother loved Weird Al’s music. Which brother was correct?
Neither opinion could objectively resolve what “annoying” means. The reaction depends on the listener.
That may be harmless when choosing music. It becomes dangerous when a person’s liberty depends on the answer.
A law defining criminal conduct through subjective reactions can leave citizens guessing about when protected speech becomes a crime.
What Makes a Law Overbroad?
The overbreadth doctrine asks whether a law prohibits a substantial amount of constitutionally protected speech along with conduct that the government may legitimately regulate.
A properly drafted harassment statute can prohibit certain conduct without criminalizing ordinary expression.
For example, the government may have a legitimate basis to address:
true threats;
stalking;
repeated unwanted contact without a legitimate communicative purpose;
targeted intimidation;
obscene communications in legally defined circumstances;
or conduct intended to place someone in fear of bodily injury.
But a statute can go too far when its language also reaches:
family arguments;
political criticism;
satire;
relationship disputes;
workplace disagreements;
persistent reminders;
embarrassing accusations;
or unpopular opinions.
The constitutional concern is not merely that innocent people might eventually win at trial.
The existence of a broad criminal law can cause people to censor themselves before speaking.
A person may avoid criticizing a public official because the official might claim to be annoyed.
A parent may hesitate to send repeated instructions to a child.
A former spouse may avoid legitimate communication about property, finances, or children.
A citizen may refrain from participating in a public debate because another participant might describe the messages as alarming or embarrassing.
That chilling effect is especially serious when the statute regulates speech based on its content.
Text Messages Are Still Speech
During the interview, Andrew Herreth raises a foundational question for nonlawyers: Does the First Amendment apply to text messages even though they are written rather than spoken aloud?
Yes.
Constitutional protection is not limited to words spoken from a stage or printed in a newspaper.
People communicate ideas through:
books;
letters;
signs;
photographs;
emails;
websites;
text messages;
videos;
and social-media platforms.
The medium changes, but the communication remains expression.
This does not mean every electronic message is protected in every circumstance. The First Amendment does not create blanket immunity for true threats, criminal solicitation, fraud, or every other communication connected to illegal conduct.
But the government cannot avoid constitutional scrutiny simply by labeling a message “electronic.”
Lopez emphasizes that free-speech principles often protect expression people consider ugly, offensive, repulsive, or infuriating.
The test of free speech is not whether society agrees with the speaker.
Popular speech rarely needs constitutional protection. The difficult cases involve speech that people want the government to suppress.
Protecting Speech Does Not Mean Endorsing It
Lopez explains that defending a speaker’s constitutional rights does not require agreeing with the speaker’s beliefs.
A lawyer may strongly oppose the message while still believing the government lacks authority to criminalize it under an unclear or overbroad law.
That distinction is essential.
The First Amendment does not ask whether a message is polite, wise, compassionate, or socially acceptable. It asks whether the government may punish it.
A person can condemn hateful speech and still oppose a statute that gives police unlimited discretion to decide what counts as annoying.
Once the government receives that power, it may not be used only against speakers the listener dislikes.
It can also be used against:
civil-rights advocates;
political challengers;
journalists;
religious speakers;
defense attorneys;
protestors;
whistleblowers;
or ordinary citizens criticizing government officials.
Protecting constitutional rights in unpopular cases helps preserve those rights for everyone.
The Barton Case Arose During a Divorce
The facts described in the episode demonstrate why context matters.
Barton and his estranged wife were going through a divorce. According to Lopez, the phone records showed extensive two-way communication on the date alleged in the case.
Lopez describes approximately 300 messages from the wife and approximately 150 from Barton.
That does not automatically establish that every message was lawful or appropriate. It does, however, suggest a continuing conversation rather than a simple pattern of one person sending unanswered messages to someone desperately trying to avoid contact.
Divorcing spouses may need to communicate about:
children;
schedules;
finances;
household property;
legal documents;
transportation;
bills;
and living arrangements.
Those conversations can become angry, repetitive, and unpleasant.
The criminal-law question should not be whether one participant behaved badly. It should be whether the person committed a clearly defined offense that the government can prove beyond a reasonable doubt.
Selective Text Messages Can Create a Misleading Story
Electronic evidence presents another problem: messages can be removed from their context.
A complainant may show police only the messages that make the accused look aggressive.
Earlier messages may be deleted.
Replies may be omitted.
Screenshots may begin halfway through an argument.
Messages from the complainant may be preserved on one device but absent from another.
Tone may be difficult to determine from text alone.
A sarcastic message can look literal. A response to a threat can appear unprovoked when the earlier threat is missing. A heated but mutual argument can be presented as one-sided harassment.
A proper defense investigation may require:
complete message threads;
records from both devices;
carrier records;
metadata;
backups;
screenshots;
forensic extraction;
and testimony explaining the relationship and context.
The Barton case illustrates how charging decisions can depend on who presents the messages first and which portion of the conversation police review.
Which Message Was the Crime?
The defense initially challenged the charging instrument.
Because the prosecution was for a misdemeanor, the formal accusation was contained in an information rather than an indictment.
According to Lopez, the information largely repeated the statutory language. It alleged that Barton sent repeated electronic communications intended to harass, annoy, alarm, abuse, torment, embarrass, or offend.
But it did not adequately identify which communications formed the basis of the prosecution.
That created a basic notice problem.
When hundreds of messages were exchanged in one day, which messages was the defense expected to answer?
Was the State relying on:
two particular texts;
an email;
a series of messages;
every communication that day;
a photograph;
or some other electronic content?
A defendant should not have to arrive at trial prepared to defend against every message ever sent and then learn for the first time which words the prosecutor considers criminal.
Criminal Charges Should Give Fair Notice
Lopez compares the electronic-harassment information with charging instruments in more conventional criminal cases.
An aggravated-assault allegation may identify the claimed weapon—for example, a knife rather than a baseball bat.
A theft allegation may describe the property allegedly taken.
Those details help the defense understand the accusation, investigate the evidence, and prepare a response.
The same need exists in an electronic-speech case.
The State should not be allowed to say only that some unspecified electronic communication among hundreds was annoying or embarrassing.
Without greater specificity, the defense cannot easily determine:
which communication to investigate;
which context matters;
which witnesses are relevant;
whether the message was altered;
whether it was actually sent by the defendant;
whether it had a legitimate purpose;
or whether the same communication was already the subject of another count.
Fair notice is not a technical luxury.
It is part of the accused person’s ability to prepare a defense.
Nine Counts and One Vague Narrative
Lopez explains that Barton faced multiple harassment counts using variations of the statute’s subjective language.
The counts referred to communications allegedly intended to annoy, alarm, embarrass, or harass.
But the language did not clearly connect each count to a specific message.
That ambiguity creates several dangers.
The State might characterize one text as annoying at one stage and embarrassing at another.
Multiple counts might rely on the same conduct.
Jurors might disagree about which messages were criminal but still return a general guilty verdict.
The defendant could face difficulty invoking protections against being prosecuted twice for the same communication.
The defense therefore filed a motion to quash the information and asked the trial court to require greater specificity.
The trial judge denied the motion.
That denial forced the defense to decide whether to proceed to trial and challenge the statute afterward—or find a lawful way to obtain appellate review before trial.
Why the Defense Did Not Simply Wait for Trial
Waiting until after conviction can be disastrous in a constitutional case.
An appellate court may agree that an argument is strong but refuse to consider it because the defense did not raise it properly or at the correct stage.
This is known as preservation of error.
A defense lawyer must often do more than identify the correct legal argument. The lawyer must also:
present it to the proper court;
present it at the correct time;
use the appropriate procedural vehicle;
obtain a ruling;
create a sufficient record;
and preserve the issue for appellate review.
A prior case discussed in the episode served as a warning. Lopez describes an earlier challenge in which the court had criticized the statute but the issue was not preserved in a way that allowed the highest criminal court to reach the substance of the constitutional claim.
The Barton defense wanted to avoid the same result.
Rather than try the case first and hope the issue survived, the lawyers pursued pretrial habeas relief to place the constitutional question before the Second Court of Appeals.
That procedural decision became one of the most important parts of the case.
The Writ of Habeas Corpus as a Pretrial Vehicle
A writ of habeas corpus is commonly associated with people already serving a sentence, but Texas procedure also permits certain constitutional claims to be raised before trial.
The Barton defense used a pretrial writ to challenge the validity of the statute itself.
The distinction matters.
The defense was not merely arguing that Barton’s particular messages had been misunderstood. It was arguing that the law, as written, swept too broadly into protected expression and failed to provide constitutionally adequate standards.
A successful facial challenge could prevent a prosecution under the defective provision rather than require the defendant to endure trial first.
The writ also allowed the defense to build a record and take the constitutional question to the appellate court through the proper procedural route.
The Second Court of Appeals
The appeal went to the Second Court of Appeals in Fort Worth.
That court hears civil and criminal appeals from Tarrant County and surrounding counties within its appellate district.
For Lopez, the case represented a rare opportunity to argue personally before an appellate panel.
Appellate advocacy differs significantly from trial work.
There is no jury.
Witnesses do not testify.
The argument centers on:
the written record;
constitutional principles;
statutory language;
prior decisions;
preservation;
standards of review;
and questions from the judges.
The lawyer must understand not only why the client should prevail, but also how the requested ruling will affect other cases, other speakers, prosecutors, law-enforcement agencies, and future interpretations of the statute.
In the second half of this article, we will examine Lopez’s appellate argument, the “Weird Al defense,” the mowing-the-lawn hypothetical, political tweets, unequal enforcement, the Texas Constitution, the State’s request for rehearing, and what the episode teaches criminal defense lawyers about preserving constitutional challenges.
The “Weird Al Defense” and the Problem With Criminalizing Annoyance
At oral argument, Tobias Lopez needed a simple way to show the judges why the statute’s language was dangerous.
He used Weird Al Yankovic.
Lopez explained that he found Weird Al annoying while his brother, an educated college professor, loved Weird Al’s music. Which reaction was legally correct?
Neither.
The example was humorous, but the constitutional point was serious.
“Annoying” is not an objective category. It depends on the listener’s taste, mood, relationship with the speaker, cultural background, and personal tolerance.
That subjectivity may be harmless in ordinary life. It becomes deeply problematic when the government uses it to define a crime.
A criminal statute should not leave people wondering whether their speech is lawful based on whether a particular recipient, officer, prosecutor, or juror happens to dislike it.
That was one of the central weaknesses in the electronic-harassment provision challenged in Barton’s case.
Ordinary Communication Could Fall Within the Statute
Lopez argued that the statute was broad enough to reach everyday communication.
A parent might repeatedly text a child:
Mow the lawn.
You were supposed to mow the lawn.
Get outside and mow the lawn now.
The parent may fully intend to annoy the child into completing the chore.
Under a literal reading of a statute criminalizing repeated electronic communications intended to annoy, that ordinary parenting exchange could potentially fall within the law.
The appellate opinion reportedly referred to this type of hypothetical in a footnote.
That matters because courts assessing overbreadth do not look only at the most troubling conduct the government wants to prohibit. They also examine the protected speech the law reaches.
A statute may be motivated by legitimate concerns but still be unconstitutional if its language criminalizes too much lawful expression.
Relationship Arguments Are Not Automatically Crimes
The Barton case arose during a divorce.
That setting is important because relationship disputes often involve repeated, emotional, and unpleasant communication.
Former spouses may argue about:
child custody;
visitation;
property;
household expenses;
debts;
legal strategy;
new relationships;
school schedules;
transportation;
and accusations of dishonesty.
The messages may be insulting. They may be immature. They may be embarrassing. They may be intended to provoke a response.
But criminal law should distinguish between genuinely threatening or harassing conduct and a mutual argument between adults.
If one participant sends 150 messages and the other sends 300, the conversation may be ugly, but it is still a conversation.
That does not mean there can never be criminal conduct in a two-way exchange. A threat remains a threat even if the recipient responds. Repeated contact can remain unlawful despite occasional replies.
But mutual communication is relevant context.
It may undermine a claim that one party was simply being subjected to unwanted communications with no legitimate purpose.
The Danger of One-Sided Screenshots
Lopez identifies another practical weakness in electronic-harassment prosecutions: text-message evidence can be curated.
A person can delete messages before showing a phone to police.
A screenshot can begin in the middle of a conversation.
A sender’s most aggressive statement can be displayed without the message that provoked it.
One participant may preserve the other person’s insults while deleting his or her own.
That can radically change the apparent meaning of an exchange.
For example:
“Leave me alone or you will regret it.”
Standing alone, that message may look threatening.
But the full conversation might show that the sender was responding to repeated threats of being confronted at home.
Or the opposite may be true: an apparently harmless statement may become much more disturbing when read in context.
That is why a defense lawyer should seek the complete thread rather than relying on selected screenshots.
Electronic Evidence Requires Careful Authentication
Text messages are not self-proving simply because they appear on a screen.
The defense may need to examine whether the prosecution can establish:
who sent the message;
who controlled the device;
whether the contact name was accurate;
whether the screenshot was altered;
whether messages were deleted;
whether the timestamp was reliable;
whether the account was spoofed or compromised;
and whether the message was part of a larger thread.
Authentication can involve:
witness testimony;
phone extraction;
metadata;
account records;
distinctive language;
corroborating conduct;
or admissions.
The broader and more subjective the statute, the more dangerous it becomes to rely on incomplete or poorly authenticated electronic evidence.
Vagueness Encourages Unequal Enforcement
A vague law does not merely confuse citizens.
It also gives law enforcement too much discretion.
Lopez uses a theft example to explain the difference.
If a person hides several pizzas in his clothing and runs out of a store without paying, nearly every officer will recognize theft.
The conduct is objectively understandable.
But what happens when an officer reads a hostile text exchange between romantic partners?
One officer may think:
This person is clearly harassing the other.
Another may think:
This is a mutual argument between two adults.
A third may identify more strongly with one participant.
A fourth may know the complainant personally.
A fifth may be influenced by who called police first.
When the statute provides no clear boundary, enforcement can depend on personal judgment rather than neutral rules.
Who Calls the Police First Can Shape the Case
In relationship disputes, the first person to present a narrative may gain an immediate advantage.
That person may show police a selected group of messages and describe them as threatening, alarming, or abusive.
The other participant may be arrested before officers review the complete exchange.
Factors influencing the decision can include:
which person appears calmer;
which person seems more credible;
whether one has visible emotional distress;
prior calls involving the couple;
protective orders;
criminal history;
gender assumptions;
and the officer’s personal reaction to the messages.
Clear statutes help limit those subjective decisions.
A vague statute does the opposite.
It allows criminal liability to turn on which officer arrives, which messages are shown, and which participant appears more sympathetic.
Protected Political Speech Was Also at Risk
The statute’s reach was not limited to family disputes.
During oral argument, the appellate judges reportedly raised political tweets as an example.
At the time, President Donald Trump frequently used Twitter to criticize opponents and foreign leaders. One example discussed involved the nickname “Rocket Man” for North Korean leader Kim Jong Un.
The point was not whether the tweet was diplomatic or wise.
The question was whether it was a repeated electronic communication intended to annoy, embarrass, or harass.
Under a broad reading of the statute, the answer could be yes.
Political speech frequently aims to:
embarrass opponents;
provoke public reaction;
criticize officials;
expose hypocrisy;
ridicule policy;
pressure decision-makers;
and annoy people in power.
Those purposes do not remove First Amendment protection.
In fact, political speech is at the core of the First Amendment.
The State’s Concession Highlighted the Statute’s Breadth
According to Lopez, the State had difficulty avoiding the political-tweet hypothetical.
If a tweet qualified as an electronic communication, was repeated, and was intended to annoy or embarrass, then the statutory language appeared to cover it.
That concession demonstrated how far the law extended beyond traditional harassment.
A criminal statute that can be used against ordinary political criticism creates a serious chilling effect.
Citizens may not know whether criticizing a mayor, sheriff, district attorney, governor, senator, or president could expose them to prosecution.
Even if prosecutors promise restraint, constitutional rights cannot depend solely on prosecutorial goodwill.
The language of the statute must impose meaningful limits.
The First Amendment Protects Offensive Speech
Free speech doctrine does not exist only for polite conversations.
Some of the most important protected speech is:
insulting;
offensive;
satirical;
angry;
embarrassing;
disruptive;
or deeply unpopular.
The government may regulate certain narrowly defined categories of unprotected speech, but it cannot broadly criminalize expression because listeners dislike it.
That principle protects speakers across the political spectrum.
A conservative official may be annoyed by repeated progressive criticism.
A progressive official may be offended by conservative messages.
A prosecutor may dislike criticism from defense attorneys.
A police department may find public accusations embarrassing.
The First Amendment prevents the government from converting those reactions into a general power to punish speech.
The Texas Constitution Also Matters
The defense did not rely exclusively on the First Amendment to the United States Constitution.
Lopez explains that the briefing also invoked the free-expression protections of the Texas Constitution.
Article I, Section 8 of the Texas Constitution contains strong language protecting freedom of speech and press.
Texas courts have sometimes interpreted state constitutional protections independently or more broadly than federal protections.
That creates an important lesson for Texas criminal defense attorneys:
When a case involves speech, counsel should consider both constitutions.
Raising both grounds may:
preserve an independent state claim;
provide broader protection;
give the appellate court an alternative basis for relief;
and protect the issue if federal doctrine changes.
A lawyer should not assume that the federal Constitution is the only source of protection.
Why the Defense Raised Every Plausible Ground
Lopez says the defense “threw the kitchen sink” into the litigation.
That does not mean filing random arguments.
It means deliberately preserving all serious constitutional and procedural grounds through:
the motion to quash;
the habeas application;
trial-court argument;
appellate briefing;
and oral argument.
The defense addressed:
vagueness;
overbreadth;
fair notice;
unequal enforcement;
federal free speech;
Texas constitutional protections;
and deficiencies in the charging instrument.
That comprehensive approach matters because appellate courts often decide cases narrowly.
One panel may reject a notice claim but accept an overbreadth claim.
Another may avoid the federal issue and decide under state law.
Preserving multiple grounds gives the client more routes to relief.
Preserving Error Can Determine Whether the Court Reaches the Merits
The episode repeatedly emphasizes preservation.
A lawyer can identify a genuine constitutional defect and still lose if the argument was not raised properly.
Appellate courts require litigants to follow procedural rules because trial courts should have the first opportunity to correct errors.
The defense generally must:
make a timely request, objection, or motion;
state the grounds with enough specificity;
obtain an adverse ruling;
ensure the record contains the relevant materials; and
pursue the issue through the proper appellate vehicle.
Failing at any of those stages can prevent merits review.
Lopez’s team studied the earlier litigation and structured Barton’s challenge to avoid the procedural problem that had previously prevented a definitive ruling.
The Prior Case and the Warning of “Lifeless at Birth”
The episode references an earlier case involving a challenge to the statute.
Lopez says the Second Court of Appeals had used striking language suggesting that the electronic-harassment provision was “lifeless at birth.”
That language indicated serious constitutional concern.
But according to the discussion, the Court of Criminal Appeals did not reach the core issue because of preservation or procedural timing.
That left the statute in an uncertain position.
For Barton’s defense, the earlier case served as both a roadmap and a warning.
The roadmap showed that the appellate court already recognized the statutory problem.
The warning showed that a strong argument was worthless unless presented through the correct procedure.
Why a Pretrial Challenge Was So Important
A facial First Amendment challenge may be suitable for pretrial review because the defendant argues that the statute itself is invalid.
That differs from a claim that the statute was merely misapplied to one set of facts.
Requiring a person to endure trial under an unconstitutional speech restriction can itself create harm.
The process may involve:
public accusation;
legal expense;
bond conditions;
restrictions on communication;
employment consequences;
and pressure to plead guilty.
Pretrial habeas gave the defense a way to challenge the government’s authority to prosecute before Barton faced a full trial.
Oral Argument Is Rare and Valuable
Not every appeal receives oral argument.
Appellate courts often decide cases solely from the briefs and record.
Lopez requested argument even though others doubted the court would grant it.
The court did.
That gave him the opportunity to answer the judges’ concerns directly and explain the real-world consequences of the statutory language.
Oral argument is not a speech delivered uninterrupted.
Judges may:
interrupt;
change subjects;
challenge assumptions;
test the requested rule;
raise hypotheticals;
ask about procedural limits;
and demand concessions.
A successful advocate must know the record and law well enough to respond while continuing to advance the client’s position.
The Judges’ Questions Revealed Their Concerns
Lopez describes a noticeable difference between the questioning during his presentation and the State’s presentation.
The judges allowed him time to develop the argument before becoming heavily involved.
When the State began, the Chief Justice quickly pressed counsel with political-speech hypotheticals.
That questioning suggested the court was concerned about the statute’s reach.
Judges do not always reveal their final view during argument, but their questions can expose the weaknesses they consider most important.
Here, the concerns included:
social-media speech;
public tweets;
political criticism;
repetition;
subjective annoyance;
and the absence of limiting language.
The Court Found the Provision Unconstitutional
The Second Court of Appeals ultimately agreed with the defense’s constitutional challenge.
The court concluded that the relevant electronic-harassment provision was unconstitutional.
That ruling had practical consequences beyond Barton’s case.
Lopez explains that electronic-harassment prosecutions under that particular provision were effectively placed on hold in Tarrant County while the State pursued further review.
Prosecutors could not confidently proceed under a law the controlling intermediate appellate court had declared invalid.
That demonstrates how one misdemeanor case can affect an entire jurisdiction.
The Decision Was Limited to Electronic Communications
The episode carefully distinguishes the challenged provision from the entire harassment statute.
The ruling did not necessarily invalidate every form of harassment prohibited under Texas law.
Other subsections addressed conduct such as repeated telephone calls made without a legitimate communicative purpose.
Some of those provisions had previously been challenged, rewritten, and upheld after the Legislature added limiting language.
The Barton challenge focused on the subsection dealing with electronic communications.
That distinction should be made clear in the article.
The decision did not create a general right to threaten, stalk, or terrorize people electronically.
It addressed the constitutionality of the particular statutory wording at issue.
Technology Had Outpaced the Statute
The version of the law applicable to Barton’s alleged conduct reflected older forms of electronic communication.
The statutory definition referenced technology such as:
pagers;
facsimile machines;
email;
and other forms of transmitted data.
Social media had transformed public communication.
Platforms such as Twitter, Facebook, Instagram, and Snapchat allowed a single message to reach thousands or millions of people.
The Legislature later expanded the definition of electronic communication to include modern platforms.
But expanding the list of covered technology did not necessarily fix the constitutional problem.
The deeper issue remained the law’s reliance on terms such as annoy, alarm, embarrass, and harass.
Updating Technology Definitions Does Not Cure Vague Standards
A statute can accurately define every communication platform and still be unconstitutional.
Suppose a law clearly includes:
text messages;
emails;
tweets;
direct messages;
videos;
social-media posts;
and livestream comments.
That solves one problem: people know which media are covered.
But it does not explain what speech is prohibited.
If liability still depends on whether someone was annoyed or embarrassed, the statute may remain vague and overbroad.
The Legislature must address both:
what forms of communication are covered; and
what objectively defined conduct makes the communication criminal.
Conflicting Courts Created a Need for Higher Review
Lopez explains that another Texas appellate court had reached a different conclusion regarding the statute.
One jurisdiction considered the law valid while the Second Court of Appeals found it unconstitutional.
Conflicting appellate decisions create uncertainty.
The same communication might be prosecutable in one part of Texas but constitutionally protected in another.
That is one reason the Texas Court of Criminal Appeals may review a case.
As the highest criminal court in Texas, it can resolve conflicts among the courts of appeals and provide a statewide interpretation.
The State Requested Rehearing
After the Second Court of Appeals ruled for Barton, the State requested rehearing.
A rehearing asks the same appellate court to reconsider its decision.
The State may argue that the court:
misunderstood the record;
overlooked authority;
addressed an unpreserved argument;
applied the wrong standard;
or reached an incorrect constitutional conclusion.
Rehearing is not automatically granted.
Appellate courts generally require a meaningful reason to revisit an opinion.
The Addendum Shows the Court Rejected the State’s New Position
At the end of the episode, Decker provides an update.
He explains that the State argued on rehearing that the appellant had not raised an overbreadth challenge.
The court rejected that position.
According to the quoted language, the State’s prior briefing had acknowledged and addressed overbreadth repeatedly, including in a dedicated subsection arguing that the statute was not unconstitutionally overbroad.
The appellate court characterized the State’s rehearing position as an “about-face” and denied rehearing.
That procedural episode reinforces a broader lesson:
The appellate record matters.
Courts can compare a party’s new position with its earlier briefing and reject attempts to reframe what was litigated.
The Case Was Not Necessarily Over
Even after the defense won and rehearing was denied, further review remained possible.
The State could seek discretionary review from the Texas Court of Criminal Appeals.
That means an intermediate appellate victory may not be final.
The higher court may:
refuse review;
affirm;
reverse;
narrow the ruling;
remand for further proceedings;
or resolve the case on a procedural ground.
Lopez remained realistic about that possibility.
He celebrated the win while acknowledging that it could be overturned.
That is a healthy approach to appellate litigation.
One Case Can Force the Legislature to Rewrite a Law
When a court declares a criminal statute unconstitutional, the Legislature may respond.
Lawmakers can revise the statute by:
narrowing the prohibited conduct;
defining key terms;
requiring a specific harmful intent;
limiting the statute to communications without legitimate purpose;
excluding protected speech;
focusing on threats or fear;
or adding objective standards.
Lopez describes a recurring pattern in harassment and stalking law:
Legislature passes a broad law.
Court finds it vague or overbroad.
Court explains the constitutional defect.
Legislature rewrites the statute.
Later courts review the amended version.
That process can improve the law by preserving legitimate protection while respecting constitutional speech rights.
A Constitutional Win Benefits More Than the Individual Client
The immediate goal was to defend Charles Barton.
But a successful facial challenge also protects other people from prosecution under the same defective law.
Those people may include individuals whose speech is:
political;
familial;
satirical;
journalistic;
romantic;
religious;
or simply unpopular.
That does not make every communication admirable.
It means criminal punishment must be imposed under a sufficiently clear and narrow law.
Constitutional litigation often begins with one person but produces rules affecting thousands.
The Defense Lawyer’s Role Includes Challenging the Law Itself
Criminal defense is not limited to disputing whether the accused committed the alleged act.
Sometimes the deeper question is whether the government had constitutional authority to criminalize the act.
A defense lawyer may challenge:
the statute;
the charging instrument;
the search;
the arrest;
the evidence;
the procedure;
or the punishment.
In Barton’s case, the defense attacked both the notice provided by the information and the validity of the statute.
That broader perspective transformed an ordinary misdemeanor prosecution into significant constitutional litigation.
Mentorship Played a Central Role
Lopez repeatedly credits Ed Jones for identifying the issue, assigning the research, and helping guide the procedural strategy.
This illustrates the importance of mentorship in criminal defense.
Young lawyers may have energy and research ability but lack experience recognizing which issues matter most and how to preserve them.
Experienced lawyers may know the patterns:
statutes previously challenged;
procedural traps;
appellate timing;
local court practices;
and the difference between a good argument and a reviewable argument.
The case succeeded through a combination of research, experience, teamwork, and persistence.
Good Lawyers Must Learn to Accept Criticism
Near the end of the interview, Lopez discusses advice he received during his earlier career as a journalist.
A mentor told him he was a good writer but not yet a great writer.
To improve, he needed to stop listening only to friends and family who praised him and begin learning from editors who identified weaknesses.
Lopez applies that advice to law practice.
A lawyer does not become great by winning one case.
Improvement requires:
listening to mentors;
accepting edits;
discussing strategy with colleagues;
acknowledging mistakes;
reading better advocates;
and continuing to develop.
That advice is especially relevant in appellate practice, where precise writing and procedural discipline are critical.
Humility After a Major Win
Lopez does not describe the case as proof that he has mastered appellate law.
He jokes about his oral argument and acknowledges that the decision could still be reversed.
That humility is valuable.
A lawyer can be proud of a result while recognizing:
another court may disagree;
the facts may differ in the next case;
the statute may be amended;
and legal doctrine may evolve.
Confidence is necessary for advocacy.
Humility is necessary for growth.
The Episode’s Broader Message
This episode is about more than electronic harassment.
It is about the structure that protects individual liberty.
A constitutional system depends on:
clear criminal laws;
fair notice;
consistent enforcement;
protected political speech;
meaningful appellate review;
proper preservation;
and lawyers willing to challenge government power.
Without those safeguards, ordinary arguments can become crimes, enforcement can become arbitrary, and unpopular speakers can be silenced.
The Barton litigation demonstrates how those principles operate in a real misdemeanor case.
Conclusion
Electronic communication has become one of the primary ways people conduct their lives.
Families coordinate by text.
Couples argue by direct message.
Employees complain through email.
Citizens criticize government on social media.
Politicians provoke opponents online.
Journalists publish digitally.
The law can regulate genuinely harmful conduct occurring through those platforms.
But it cannot treat every annoying, embarrassing, alarming, or offensive electronic message as a crime without clear constitutional limits.
That was the central problem in the statute challenged by Tobias Lopez and the Ed Jones Law Firm.
The provision relied on subjective language broad enough to reach ordinary family disputes, mutual relationship arguments, satire, and political speech.
It did not provide citizens with a reliable standard for knowing when electronic communication crossed the line into criminal conduct.
It also gave police and prosecutors substantial discretion to decide whose messages were annoying enough to prosecute.
The Barton case exposed those defects.
Hundreds of messages had been exchanged during a divorce, yet the charging information did not clearly identify which communications formed the basis of the prosecution.
The defense challenged the lack of notice and then pursued a pretrial writ of habeas corpus to attack the statute itself.
That procedural choice was critical.
An earlier challenge had demonstrated that even a powerful constitutional issue can fail when it is not preserved at the right time and through the proper vehicle.
Lopez and his team built the record carefully, raised federal and Texas constitutional grounds, requested oral argument, and presented hypotheticals showing the statute’s real-world reach.
The Weird Al example illustrated the subjectivity of annoyance.
The parent repeatedly texting a child to mow the lawn showed how ordinary communication could become criminal.
The political-tweet hypothetical demonstrated that the statute threatened core First Amendment activity.
The Second Court of Appeals agreed that the electronic-communications provision was unconstitutional.
When the State sought rehearing and attempted to argue that overbreadth had not been raised, the court rejected that position based on the State’s own prior briefing.
The litigation also showed that an appellate win may be one stage rather than the end.
Further review by the Court of Criminal Appeals remained possible, and the Legislature could later rewrite the law.
Still, the result mattered.
It protected Barton from prosecution under a defective provision and forced the legal system to confront how traditional harassment concepts apply to modern electronic speech.
The case offers several lessons for criminal defense lawyers.
Read the statute closely.
Do not assume that a misdemeanor case presents only small issues.
Investigate the full context of electronic communications.
Demand notice of the specific conduct being prosecuted.
Raise constitutional objections early.
Use the correct procedural vehicle.
Preserve every serious ground.
Consider the Texas Constitution as well as the United States Constitution.
And remain willing to challenge the law itself when the law violates the rights of the accused.
The First Amendment is easiest to defend when the speech is agreeable.
Its real value appears when the speech is irritating, embarrassing, offensive, or unpopular.
A constitutional democracy does not protect expression because every message is worthy.
It protects expression because giving the government broad power to punish annoyance is far more dangerous.
Key Takeaways
Written and electronic communications receive First Amendment protection even though they are not spoken aloud.
Constitutional protection does not mean every threatening, fraudulent, or criminal communication is immune from prosecution.
A criminal statute may be unconstitutionally vague when ordinary people cannot determine what conduct it prohibits.
Terms such as “annoy,” “alarm,” “embarrass,” and “harass” can be highly subjective without limiting definitions.
A law may be unconstitutionally overbroad when it prohibits a substantial amount of protected speech along with conduct the government may legitimately regulate.
Overbroad speech laws can chill lawful expression before anyone is prosecuted.
Protecting a speaker’s constitutional rights does not require agreeing with the speaker’s message.
Free-speech protections are especially important for offensive, unpopular, and political expression.
Barton’s case arose from extensive two-way texting during a divorce, not merely one person sending unanswered messages.
Mutual communication does not automatically defeat a harassment allegation, but it is important factual context.
Selected screenshots can create a misleading account when earlier or responsive messages are missing.
Electronic-message cases may require complete device extractions, metadata, carrier records, and authentication evidence.
A charging instrument should identify the conduct the defendant must defend against with sufficient specificity.
When hundreds of messages exist, alleging only that some electronic communications were annoying or embarrassing may create a serious notice problem.
Misdemeanor charges are commonly brought by information rather than indictment.
A motion to quash can challenge whether the information provides constitutionally adequate notice.
The trial court’s denial of the motion required the defense to consider how to obtain appellate review before trial.
Preservation of error is critical; a valid constitutional issue may be lost if raised at the wrong time or through the wrong procedure.
Pretrial habeas corpus can be an appropriate vehicle for certain facial constitutional challenges.
The defense used an earlier appellate decision as both a roadmap and a warning about preservation.
The “Weird Al defense” illustrated that what one person considers annoying, another may enjoy.
The mowing-the-lawn hypothetical showed that a broad statute could criminalize ordinary parenting communications.
Political tweets demonstrated that the statute could reach core First Amendment speech.
Prosecutorial assurances that a broad law will be used responsibly do not cure unconstitutional language.
Vague laws encourage unequal enforcement because different officers may treat identical communications differently.
Who contacts police first and which messages are shown can influence an electronic-harassment investigation.
The defense raised claims under both the First Amendment and Article I, Section 8 of the Texas Constitution.
Texas constitutional free-expression protections should be considered independently in Texas cases.
The Second Court of Appeals found the challenged electronic-communications provision unconstitutional.
The ruling was directed at the electronic-communications subsection, not necessarily every part of the harassment statute.
Updating a statute to include social media does not fix vague standards defining criminal speech.
Conflicting decisions among Texas courts of appeals may prompt review by the Texas Court of Criminal Appeals.
The State requested rehearing after the defense victory.
The appellate court rejected the State’s claim that overbreadth had not been raised because the State’s prior briefing had repeatedly addressed it.
A party’s prior briefing can undermine an inconsistent position taken on rehearing.
An intermediate appellate victory may still be reviewed or reversed by a higher court.
When courts invalidate harassment laws, legislatures may rewrite them with narrower language and objective standards.
One misdemeanor case can change the enforcement of a statute throughout an appellate district.
Constitutional litigation can protect many people beyond the individual defendant.
Criminal defense lawyers should challenge the government’s authority to prosecute when the statute itself is defective.
Mentorship and collaboration were central to identifying and preserving the issue.
Strong appellate advocacy requires careful writing, procedural discipline, and a complete record.
Lawyers improve by accepting criticism and learning from more experienced advocates.
A major win should produce confidence, but not complacency.
The core lesson is that the government cannot broadly criminalize speech merely because someone finds it annoying, embarrassing, or offensive.
Andrew Herreth 0:10
Hello, everyone. Welcome to another episode of Andrew and Andrew on Texas Criminal Defense. I'm joined, as always, by my co-host on this wonderful day, Andrew Decker, how you doing, Andrew?
Andrew Decker 0:22
I'm doing good. I'm doing good. It's it's a hot one out there. We know this is going to release later, but it's still September and it's like 103 degrees out in the great state of Texas. It's hot, but in here it's nice and cool. We have the air conditioner on, and I have a friend of mine, Tobias Lopez. We went to law school together. That's where we met. He currently works for Ed Jones as a criminal defense attorney, primarily in Tarrant County. But I know he goes to other places. I've seen him other places. But his his the thing that he and I do the most together is he's the general manager for the Fort Worth Vaqueros football club. For the rest of you who live in America, that's soccer, and it's our minor league team in Fort Worth, and I'm glad to be associated with it. Welcome, Tobias. Thanks for coming out.
Tobias Lopez 1:10
No, it's a pleasure to be out here with you guys. I appreciate you bringing me on. Appreciate you plugging the Vaqueros, of course. The only active minor league soccer team in Fort Worth. No hockey, no basketball, no nothing anymore. So we're we're carrying the torch for Fort Worth with our little minor league team. We play every summer, so a little plug there for them. And but I'm ready to jump in and talk some some actual criminal law and an appeal that kind of went our way.
Andrew Decker 1:35
Right, right. So this summer, you well, an opinion came down from the Second Court of Appeals, and well, let's start with where is that?
Tobias Lopez 1:46
Okay, so obviously we mostly do Tarrant County at Ed Jones Law Firm, who I work for. I've been an associate with him since I graduated law school in 2011, and the bulk of our work is in Tarrant County, and so the Second Court of Appeals deals with Tarrant County and the surrounding smaller counties out there, but mostly Fort Worth issues come through there. Whether it's a criminal or actual civil, they'll hear both cases. But in our case, this is a criminal case that we brought forth. And the the
Andrew Decker 2:16
actual court is in the Tim Curry Justice Center on the ninth floor, right?
Tobias Lopez 2:22
Yeah, that's correct. Everybody laughs about the ninth floor as the pretty floor, and it's the fancy floor because it's the Court of Appeals, and all the other ones are just you know misdemeanor courts and slummy and all that. But that's the joke: is that oh, you're going up to the ninth floor? Yeah,
Andrew Decker 2:36
it's all pretty up there. All right, so in this case that that you brought to to them, you appealed. You raised a constitutional issue of of free speech. Tell me, how did you come up with the idea? What made you think to try and raise a constitutional issue of free speech on a criminal case?
Tobias Lopez 2:58
Okay. Well, yeah. Let's jump into it, and I'll kind of give you a little background and show you where this all came about. As I mentioned before, I work for Ed Jones. He's been practicing in Tarrant County for about 20 years now, so I'm an associate with his firm. He hired me, and he's got a wealth of experience. And we had a client, Charles Barton, who was charged with the harassment, and the specific section of the harassment statute we're dealing with is just a newer section of law that deals with electronic communications. So thank texts or emails, but as we go through and discuss, we're going to find out that it is a wider range, and there's a lot of issues with that. And specifically, Judge Chief Justice Sutterith had an issue with when it comes to tweets, but Ed, in his experience, said, "Hey, we've got this client. He's got harassment statute. I know that both stalking and harassment statutes have been repeatedly overturned, whether it's in Texas, whether it's in California, just across the country, for a lot of different reasons. Mostly, though, because they're vague, they don't give fair notice of what's restricted. It's unequal law enforcement. There's just a whole lot of issues that we're going to discuss in the next 30 minutes. But he said, "Okay, look, this is this is your baby. Get on this. Start doing the homework. Find out what you can find out about this, and see if this is good law, or if we can challenge the law here, because it seems like there's some real issues with the electronic communication and the new form of media it is, and the law being very vague and over broad. So under his you know command or orders or however you want to say it, if you know Ed Jones, you know it was probably a command. I started looking into it and digging in and said, "Okay, what are the problems here? And I managed to find, you know, all the history of stalking statutes throughout the country, and saw how many of them are written just really vague. What does it mean to annoy someone? What does it. Mean to harass someone? What does it mean to embarrass someone? We all have different standards, and so how are we going to enforce something that's so broad or vague? And and that's what the courts have said for years. And what they've done is they usually say, okay, your law is bad, and then they'll tell the legislatures, here's how you fix it, and then they'll go back and rewrite it, and then when it's challenged again, they'll uphold it, saying, "Hey, we told them how to fix it, and they did right. So we basically use that knowledge to say, "Okay, let's let's look back at what's been done, and how do we take that a step forward when it comes to electronic communication?
Andrew Herreth 5:36
So Tobias, there there may be some non lawyers, non legal scholars listening to this, but and so just kind of on the at the elementary level, text messages they don't you know it's not verbal speech. It still incurs First Amendment protections. Correct?
Tobias Lopez 5:55
Well, absolutely. I mean, you're still communicating. You're still we've still got to be free to communicate ideas, and we still got to be free to communicate ideas that we personally find, you know, repulsive. Right? I'll go to bat for the KKK every day of the week when it comes to their right to be jerks. Right? Right? Because I can't stand them; they are completely opposite philosophically from what I am. But they have to have that same right to be a jerk as I have the same right to say no. We should all love each other. We're all equal. You know, we should date all races and deal with all races and all of that. Right. Not
Andrew Herreth 6:31
something you believe in, but you believe in their right to express their own beliefs.
Tobias Lopez 6:35
Right. And because once you start once you start restricting speech, you know, then you know, it's the old World War II saying about how they didn't. I didn't speak up, and then finally there was no one left to speak for me, right? Well, if we really believe in free speech, we have to have the ability to speak in all manners. And when it comes to texts and emails and stuff, there usually is legitimate communication, right? I mean, we've all had text fights with our wife, girlfriend, ex-girlfriend, ex-wife, you know, brother, sister, whoever it is, but under this law, just those basic communications have been criminalized, and so we've got to be able to speak freely. We have to be able to communicate, and we have to be able to get angry sometimes, and not be held criminally liable for getting angry, or you know maybe something that's annoying or maybe embarrassing somebody. We have to be able to speak freely, and especially with the new media of electronic communications. Again, I've mentioned Twitter already, but that's going to be a big point in in the arguments that were made, and one of the reasons why this law was overturned.
Andrew Herreth 7:40
So procedurally, when when y'all I guess when the case was filed, y'all got on the case representing mr. Barton. You filed a motion to quash the indictment. Trial court denied it, and then a writ of habeas corpus was filed. Why go that route?
Tobias Lopez 8:03
Okay, yeah. So the first step was, and this is an issue that's going to have to be addressed in the future as well, but it's not being addressed at this moment. But the first step was motion to quash the information because this is a misdemeanor. There wasn't an indictment, but the information itself just says, look, he's charged with sending texts that were harassing, annoying, alarming-all of the verbiage that they use in there-to her repeatedly on this date. Okay. Well, here's a problem with that. That was our first issue: is when you pull their phone records, she texted him 300 times on that day. He texted her 150 What am I dealing with there? Which text out of those 300 that were sent that day am I having to defend against?
Andrew Decker 8:53
Well, and and obviously, if there's 300 from one person and 150 from the other, they're engaged in a conversation,
Tobias Lopez 9:01
absolutely. There's legitimate because they were going through a divorce, right? And that's what which sucks. Yeah, it's not fun. I've been there, but there's legitimate communication going on there, and it's not like she wasn't texting as well. But so now, what am I defending against? That information doesn't tell me a thing about what I'm defending against, but as you guys know, what does an information or indictment look like when you're charged with assault deadly weapon?
Andrew Decker 9:27
It'll say to it a a knife or you know against a certain person to it a knife on or about and so you end up with like going okay so I know I'm dealing with a knife I'm not dealing with a baseball bat,
Tobias Lopez 9:41
exactly. I know what I need to defend against. I know what the allegation is. Same thing with a theft. He stole. You'll see in the information. He sold three razor blades. He sold some deodorant. He sold some from Dollar General. Right. I know what the allegations there. With that information, I have no idea. I don't know if it's a text or is it. Email. Am I going to show up to court? And I've been preparing for this to defend against this email. And they're like, "Oh no, that's not what was annoying. It was this text, text number 60-three on that day. That's what we're upset. Well, wouldn't it have
Andrew Decker 10:12
to be number 60-three and 60-four because it has to be repeated? It does
Tobias Lopez 10:16
have to be repeated, correct? But you see where I'm going with that, right? The information alone does not tell me what I'm defending against. So that was our first motion to quash. Was just look. This is this is a problem here, right? We don't do this in other states. And there's case law that says, in an information where it's subjective, it needs to do more than just parrot the language itself of the statute. Well, that's all they did in this case, so they had nine counts of, you know, harassment that was meant to annoy, alarm, embarrass all of the things that said it. But I don't know what were these alarming texts? Were they embarrassing text? Were they annoying texts? So that was the first step in our challenge, just to quash and say, look, y'all got to do a better job. Let us know what we're fighting against here, and then that was overturned. Judge Vanover in Court Eight, CCC Eight of Tarrant County, said, "No, I'm going to deny your motion, and let it go forward. So then we came back and said, "Okay, how do we get this to the Court of Appeals before we end up having to try this case? So as we did our homework, you know, and again, Ed's been involved in this process a lot. He's like, okay, here's what we need to do: we need to find a writ of habeas corpus, and then ask Judge Van over to give us leave of the court to then appeal it up to the Second Court of Appeals. Is which is what happened, and so then they were able to hear the issues that we had regarding the constitutionality of the statute, and now when we were arguing it, I threw in the other stuff about the information not being accurate, but they said no, you're too early for that, okay? But we wanted to get in ahead of time because what had happened was there was a prior case that challenged the law, is the Carnev case that challenged the law, and the second court of appeals said, "Yeah, you're right. This is a bad statute. They even say it was lifeless at birth was the actual language they used. Wow! Saying, "I mean, this is a bad law, but they brought it up after trial, and they said, "Because you didn't bring it up at trial or pre-trial, you have no right to appeal, so the state court of criminal appeals just kicked it out. So Carnev lost his chance to really challenge the law itself, and the state court of criminal appeals didn't address the heart of the matter, the logic, the flaws in the in the language of the statute.
Andrew Decker 12:35
Right, and that's actually one of the things that we that that in a couple of other episodes, and I'm sure it's going to come up again in others, is that if you don't preserve appeal correctly, you can actually have a valid constitutional issue, and the appeals court or the court of criminal appeals or even the Supreme Court of the United States will look at it and go, "You didn't ask the question the right way or at the right time, so you get to spend three years in jail. Sorry. Yeah. Yeah. So. So. good for you for even figuring out when andrew you had to ask the question.
Andrew Herreth 13:09
All right. So, I think Andrew Decker's giving me all the elementary ones. So, let's see my my notes here. So, okay. So, the Court of Appeals is construing the law as it was written on the date of offense. Is that right?
Tobias Lopez 13:30
That is correct.
Andrew Herreth 13:31
So it's not. Well, it's not a version of that that Penal Code chapter as it exists or as it has been amended, I think in 2017, right?
Tobias Lopez 13:43
Right. So, well, it is and it isn't. Okay. So this case is actually mr. Barton's case is from 2015. So at that point, we were still under the code from 2013. Okay. So what we're arguing about is when you look at it is 42, section A7, which just deals Section seven, just deals with electronic communication. Yeah. So what they had done was in 2015 when they defined electronic communication, they had in there stuff about pagers, facsimile machines. They had a little bit about email, but they didn't have anything regarding Twitter, Facebook, Instagram, Snapchat, all of the stuff that's come out, right? So they amended it just this last time around to throw in basically social media because at this time social media wasn't part of the law, right? So they've tweaked that, but the language itself, just regarding electronic communication, they've changed the definition of what electronic communication is, but they didn't change anything when it comes to the heart of the matter, and that is what does it mean to annoy someone, what does it mean to harass them, alarm them, embarrass them, and. Who can read these things? All of the issues that deal with just the communication itself is still open, and it's still bad law. Yeah. So that's where we're at. With yes, there have been some tweaks, but what we're arguing with, it's still unchanged.
Andrew Herreth 15:18
So it's been found unconstitutional. It goes up. It doesn't matter. Like, okay, well, the 2013 version is unconstitutional. 2017 we're still good. I mean, it's it doesn't matter. It's it's it's kind of you know been found unconstitutional. And at this level of court, it still has some other procedural stuff to go through, which I think we'll talk about a little bit later, but it doesn't matter the version of the law. This version here, I think, is what I'm getting at. Has been found unconstitutional. It's it's it's now for a higher court to decide, right?
Tobias Lopez 15:55
That is correct. Yes. So so what's happened was we argued this in September of 2018, we got the ruling just the end of last week, two weeks of August 2019. So here we are a month later, September 2019, discussing this. But so at this point, the Second Court of Appeals agreed with our arguments regarding the law itself, and said yes, we agree it is unconstitutional. It's a bad law, so then the state has obviously they've got to challenge that, or they've got to throw out every harassment, you know, charge that's out there. So basically, what's going on in the courthouse right now is everything in in Tarrant County, any misdemeanor charge for harassment under only electronic communications. Okay, we got to keep that in mind. We're only talking about electronic communication because all the other previous sections have been challenged, overturned, and then rewritten. And then the court of criminal appeals has said, okay, that part's good, right? So when it comes to like section four, which deals with I call you on your landline in the middle of the night, and let it ring and ring and ring and ring and ring and hang up, and ring and ring and ring and ring and hang up. And I'm not trying to have actual communication. That's been fixed, tweaked through the years to where they've now said that's good law. But this section with electronic communication is not good law. So everything under this has been put on hold in Tarrant County. Nobody's. The DAs are just saying, "Hey, we're just going to pass this case down the road. We're not trying to enforce this. You know, we're going to wait and see what happens. So we got a letter a couple weeks ago from the state that says, "Okay, we are asking the Senate Court of Appeals for a rehearing. We don't agree with your ruling. We want a rehearing. So right now, as of this, we're in limbo waiting to see whether Second Court appeals is going to say, "Okay, yes, you made a good point. We're going to change our mind, which I don't think is going to happen, right? And as we talk about the the hearing itself, when we did oral arguments, you'll see. And if you read the opinion, you'll see Chief Justice Sutterith had some real problems with the law as it is, so I can't imagine they're going to say, "Oh yeah, no, we changed our mind. We were wrong. You're right. So then the state's going to then going to have to appeal it up to the court of criminal appeals, and I think that's what's going to happen because there is conflicting. You know, Corpus Christi has said this law is okay. Although again, if you read the opinion, they took direct aim at Corpus Christi, saying you guys are idiots. You analyzed this wrong, and so if you look for that, it's pretty funny. If you look for that in the opinion, where they basically called out Corpus Christi. So right now you've got conflicting jurisdictions saying, okay, it's good here, but it's bad here. So I think the state court of criminal appeals is going to have to address it, and my hope is they're going to say yes, Tobias, you guys are right. They need to fix this law, and what they'll do is they'll rewrite it for them, and then at the next legislative session after that, that the legislation will be like, oh hey, we're going to fix this law, and they'll just do what they've done all throughout history is just refix it based on what the whatever the ruling court says on how to make it good law, so I think you know that's probably a couple years down the road before we get final resolution on this.
Andrew Decker 19:13
All right, so so I have read the opinion. You know we told you we were going to read it before we got together. Read it
Tobias Lopez 19:21
more than I have. I won. Okay, stop reading.
Andrew Decker 19:25
That's right. That's right. Well, you lived it, so you didn't have to read it. It's kind of like you know, you know, we're we're doing the movie version, trying to do the book report where you actually like lived it and can put details in that aren't in the movie. But one of the things I noticed in the opinion, it talks about the First Amendment of the U.S. Constitution. Did you raise any issues under the Texas Constitution, Article One, Section Eight, and why or why not?
Tobias Lopez 19:50
No, we we threw the kitchen sink in there, man. If you look at the the original brief, and if you could go back, because we have a record both on the motion of qual. The writ of habeas corpus, the brief itself for second court of appeals, the oral argument itself. So throughout that process of basically four different arguments, right? The Bosch Quash oral argument for Judge Vanover, he then incorporated those arguments in the writ of habeas corpus, and we argued some more stuff. So we had a double record in that. Then we wrote our brief for state court of appeals, and we argued unconstitutional state constitution. I mean, anything we could throw in there. If you read the brief, we said it's unconstitutional on all of this stuff. So we were just trying to cover all our bases. So if you read the brief that we wrote, it is in there that we challenged both under the Texas Constitution because it's actually some pretty good protections there. Surprisingly, because people think Texas is you know very conservative but when it comes to First Amendment protections there are some really strong ones under Texas Constitution as well right yeah the
Andrew Decker 20:50
laws actually been interpreted in a few places and it's part of the reason why any time I bring up a free speech question I I would say bring up the Texas Constitution is the protections under the Texas Constitution are actually a little broader than under the U.S. Constitution, and so it's part of the reason why I caught it because I've actually had an argument didn't win, so it didn't go anywhere. But anyway, obviously you're a better attorney than I am, so we're going to give you kudos on that.
Tobias Lopez 21:18
Don't go there.
Andrew Decker 21:19
All right. So, so one of the things, first of all, you got to do oral arguments. Lots of times, the court hears a case, and that means they they might or might not have actually read the paper. You actually got to go and appear before the court.
Tobias Lopez 21:34
We did, and that I did, and that was a lot of fun. And people were surprised because I was like, "Yeah, I'm I'm asking for oral argument. They're like, yeah, okay, Tobias. Good luck with that, dude. Good luck, kid. You know, here I am, the young attorney. You know, with less than five years' experience, and here I am. Oh yeah, I'm gonna get that oral argument, man. They're gonna go with me, you know. And they're like, okay, okay, whatever. You ain't even getting the oral arguments. You better write a good paper. But they did give us, they did grant us oral argument. So in September of last year, 2018, I argued it for myself, for our firm. mr. Barton was there just to watch, obviously, because he's involved in it. And then the state attorney was there, Stephen Baker, and so we got up there, and obviously because it was our motion, we start we start the argument, and you know I first off said, you know, and this is all online. You can actually go to the second court website if you want to hear my rambling, bumbling oral argument. You'd be like, that guy won. He's terrible. But a couple of things, I was like, look, you guys have already given me a roadmap. You've already said this is bad law, so I'm just here following the procedure and doing it right this time, so we preserve that appeal. But you've already told me it's bad law, and so I was, you know, I was kind of sucking up to him a little bit, like, hey, I'm just doing what y'all told me, right? So that was the first part of the argument, and then I got into what I call the weird owl defense, right? And this is one of my favorite parts, is I said, okay, Judge, I'm an educated man. I've been to law school. You know, I'm 45 years old. I've got some life skills, and I think Weird Al Yankovic is annoying. I've got an older brother who's a college professor at Ohio State. He's equally educated. You know, he's got his doctorate. He's teaching young minds. He loves Weird Al Yankovic. Which one of us is correct? What is annoying, right? Annoying to me is Weird Al Yankovic. He loves Weird Al Yankovic. Who's right? You know, it's funny because one of the judges was like, "Yeah, your brother's right. So she was obviously a Weird Al fan. But but that's the whole problem, right? What does annoying mean to you? What is annoying to you? You know, if you listen to sports radio station, a lot of people listen to the ticket, right? There's a particular host in there named Gordon Keith who I find annoying. A lot of people think he's funny as all get out. You know, who's right? Who's wrong? What does it mean to embarrass somebody? What does it mean to harass somebody? Right? We all have different opinions when it comes to that, and so you know that that's a real problem. Is how much speech am I going to restrict myself and in my communication because I'm afraid I'm annoying someone?
Andrew Herreth 24:12
I mean, I I I love that you got oral argument. You're actually the one who argued your case to the court of appeals because it doesn't happen a lot. They don't grant oral argument on a lot of these issues. So congratulations for that. I think that's great experience. Even if you are, you know, you hadn't been licensed that long or don't have that kind of experience, now you're one of the few attorneys in the area who have actually argued before the the court of appeals. I think that's I think that's phenomenal, and you know you may say you know be humble here and and say you're just rambling and all that, but you actually obviously made an impact on the court. In one of their footnotes, they restated one of the hypotheticals that you told them, and and it it wasn't the Weird Al Yankovic one, although that's that's. Pretty genius, but it was about hypothetical about you know a father texting his son about mowing the lawn, and you know you have to you know just like a father has to stay on top of his kids that that kid is annoyed that father has has I guess violated the penal code or this penal code section. Is that right?
Tobias Lopez 25:24
That's absolutely true. It's so broad, it's so vague, that yes, communications like that. I've broken this law. You have broken this law. Anybody listening to this podcast right now has broken this law with their communication among loved ones at some point,
Andrew Decker 25:45
we've probably broken this law. Actually, making this podcast,
Tobias Lopez 25:47
absolutely, you have. Yeah, absolutely. Because there's somebody you've annoyed, right? You put it out there. It's electronic communication, right? Yeah. I mean, I guarantee
Andrew Herreth 25:56
you, there's some prosecutors listening right now who are, you know, who are very annoyed that we're talking to a defense attorney who won. You know, absolutely.
Tobias Lopez 26:05
And look, you know, we've seen zealous prosecutors out there, and you're like, oh, they wouldn't prosecute. Look, we see stuff prosecuted all the time that we think is offensive, but they prosecute. And the problem is, is again, yes, I send my son a text. I mean to annoy him. You were supposed to mow the lawn. Get out there and mow the lawn. Go mow the lawn, or I'm having a text fight with my girlfriend. You know, hey, why didn't you pick up the dry cleaning? I wanted you to do that. Hey, woman, what's going on? Hey, you know, whatever. Yeah. You might have that communication, and yet she gets mad enough at you, or you going through a divorce, or she's got an issue about something else. She goes to the police and says, "Look, he's harassing me. He's annoying me in this, and I don't like it. And then I'm criminally liable for that. I mean, it's ridiculous. But under the law, yes, I could be charged for that, and people have been charged for that. And mr. Barton was charged for that for having fights, text fights with his ex-wife, right?
Andrew Herreth 27:02
Well, and he had received, I think you said, 300 texts from his ex-wife, and and he maybe had sent 100 or so, and he was the one that was prosecuted. Is that accurate? Yeah,
Tobias Lopez 27:13
that's accurate. I mean, well, and that's the other problem with texts, right? You can delete a text. So if I've got a text thread and I only show the police where he's saying ugly things, but I delete my ones where I'm being ugly back, or even worse, right? The police is going to look at that and say, "Oh God, this guy's terrible, right? Yeah. And that's another issue that's a problem with this is, whenever we have a law, we want it to be enforced equally by all law enforcement members, and we talked about this as we were discussing before going on the air, right? If I shove three pizzas down my pants and run out of Target, 10 out of 10 officers-they know that's theft, Tobias. You can't do that, and I know that's theft. I can't do that, and anybody. I know I can't do that now. Yeah, right. But let's say I'm having a text fight with my girlfriend, and one officer's like, "Man, this Tobias guy's a real jerk, and then another officer's like, "Man, I've been there, brother. I understand you having a text fight with your girl. So one officer might arrest me, and another one may not. But every officer is going to arrest me for theft for running out of Target with pizzas down my shorts. Well,
Andrew Decker 28:17
and it might make a difference on who you are, who the other person is? Do they know you? Do they know the the recipient of the texts? You know, because who called the cops first? All those things can play into who's being harassed and who's being offended and who's being annoyed. And you know, it was interesting that in the opinion, and I don't know if you brought it up or if the judges brought it up on their own, they actually bring up President Trump's tweet about Rocket Man, referring to Kim Jong Un of North Korea. That that that was intended. I mean, he intends to harass, annoy, embarrass, and because that's on public display, that would technically be a violation of the law, but but there are probably some some persons who would say no no no he's just he's just doing what he's supposed to be doing because he's he's forcing someone else to respond instead of hiding behind literally what we used to call an iron curtain.
Tobias Lopez 29:19
Absolutely, and and if you listen to the oral arguments, and this is when I knew, you know, obviously you're arguing and you're thinking, okay, the judges have to play devil's advocate and and address both sides, but as I started my argument, they kind of let me go for about 1015 minutes before they jumped in with questions, right? When the state got up there after I'd done my first 22 or whatever minutes they gave us before the state could even start. There's Justice Sutter, who's the Chief Justice right now, jumped right in and said, "President Trump, his tweets, he tweets all the time. It's repeated. There are plenty of people that find it's annoying." Under this statute, he's criminally liable, isn't he? And the state had to say yes. They had to concede. There was no choice because under the law, the way it's written, he is criminally liable because there are people that find those tweets annoying, right? But that goes along with equal enforcement. The guy in the red MAGA hat is out there saying, "Go Trump, go get him. I love those tweets. I'm not annoyed by that, but then your hardcore Democrat is very offended by that, right? So that's a problem. And again, when you're talking about political speech, we obviously want First Amendment protections, right? We, you know, Trump, love him or hate him, he needs to be able to do that. And people that are running against him, or in you know Texas, you know whether it's Beto O'Rourke running against Ted Cruz or whoever, they need to be able to tweet what they want to say in their platforms. And right now, pretty much every politician has broken this law. And let's say you're in a district who is anti Beto O'Rourke, right? You you don't think there's guys who would thought had they thought about it would have gone and arrested Beto O'Rourke, or somebody who might have gone and tried to arrest Ted Cruz, you know because of their tweets or Greg Abbott, you know he's he's really a guy who tweets a lot that people talk about being offensive. So you get in you know a Democratic stronghold, are you going to arrest him because under this statute, and that was one of the things Justice Sutter came out firing. She's like, "Okay, a tweet is an electronic communication, and it's annoying, and it's repeated. Therefore, he's violated. And the state had to say, "Yes, you're right.
Andrew Herreth 31:35
That's incredible, man. Well, we definitely applaud your your efforts in this and and and fighting for justice for your client. I mean, I'm sure he is happy with your efforts and and glad that you know that that y'all fought so hard for him. So let's wrap it up. We'll try to on the show notes. We'll try to attach the the decision that that came down from the Court of Appeals on this, for for all of our listeners out there who may be interested in that. But Tobias, what you have a favorite band? You have a favorite musical artist?
Tobias Lopez 32:13
Yeah, man, you can go right in my wheelhouse right here. So I'm a blues guy all the way through and through. I love the blues genre. You know, I grew up, and I started in the 80s with bad 80s music. Then we had hair bands. Then we had grunge music, and I got so tired of pop music turning over and over. I said, "Man, I got to find a style of music that's timely, that's going to last, that I can relate to. So in my mid 20s, I got into blues music, and I'm still into it today. I was just at Blues Fest last weekend over in Bedford, but you know, obviously, with that comes BB King for me. He's my all-time favorite. I love the fact that you know he only developed his signature sound because he couldn't play slide guitar, right? He tried to use a guitar slide and couldn't do it. He just physically didn't have the skills, so he said, "I love that sound, so I'm going to develop my own sound of bending the strings to try to replicate a slide guitar sound. And by doing so, he came up with that very unique bend in the way he bends the strings and his sound. If you listen to different blues, you know you automatically say, "Oh yeah, that's BB King's style right there. So he was one of my favorites. I loved his voice.
Andrew Decker 33:21
He'll make the playlist next year for the Vacaros. Just watch for
Tobias Lopez 33:25
it. I'm loving it. I'm loving it. Now that none of the players are going to know who he is, but hey, but you and I, you'll know it's a shout out. You'll know absolutely.
Andrew Decker 33:32
All right. So, a favorite book or a book or a book you've read recently that you like, dude? This is worth a read.
Tobias Lopez 33:38
Yeah. Well, I just picked up Neil deGrasse Tyson's "It's Astrophysics for the Busy Man" or something to that title, and so I'm diving into that right now. I love space. I love science. I would have loved to been an astronaut. I'll be on the Mars mission when they start sending lawyers up there. So I just picked that up at Barnes and Noble. We, my daughter and I go every weekend to Barnes and Noble, so that's what I picked up this past weekend. So that's what I'm diving into right now.
Andrew Herreth 34:08
Yeah, so that'd be astrophysics for people in a hurry. There you go. Is that right? That's the exact title. Yeah, interesting. Good.
Tobias Lopez 34:14
Yeah.
Andrew Herreth 34:14
Well, what about a piece of advice? The best piece of advice you've ever gotten as a lawyer, or piece of advice you could pass on to to younger attorneys or or other attorneys that you know maybe maybe needing something else. Yeah,
Tobias Lopez 34:30
no, absolutely. This always I get this question a lot, whether it's as my role in soccer or as a lawyer, as you know, speaking to students in college and professionally. The best advice, obviously, my dad gave me lots of great advice that I live by, but professionally, when I was in before I became an attorney, I was a sports writer for many years for the Star Telegram, for Dallas Morning News. I wrote some for Sports Illustrated. You know, I did sports journalism for years and years and years. But as I was at UT Arlington studying journalism. I wrote for the school paper, the Shorthorn, right, and we had an advisor there by the name of John Dykes. And anybody who has done any work in Tarrant County, Dallas County, anywhere in North Texas as a journalist was touched by this man. And I'll never forget John came to me one day and he said, "Look, Tobias, you're a good writer, okay, but you're not a great writer. Okay, now you can become a great writer. You have the tools there, but here's what you got to quit doing. You got to quit listening to your girlfriend, your mom, your friends tell you how good of a writer you are. That you're great already, because you're not. You're just a college kid. You got a long way to go. Now the talent is there, but if you want to be great, you're going to have to get better. You're going to have to learn to take criticism. You're going to have to learn from others who have been there and who have done that, right? Listen to the editors; they're trying to help you, right? So I took that with me all throughout my journalism career, and now later in life, as I've started my second career as a lawyer, that advice still applies, right? You know, I've got one big win on this appeals thing, right? It could get overturned at any day, right? So I've still got to continue to get better, right? So I'm a, I feel like I'm a good lawyer now, but if I want to be that great lawyer, I've got to listen to guys like Ed, who's mentored me since I got out and passed the bar exam, you know I've learned so much from him. I've learned stuff from you guys. You know we all sit around at at the courthouse and we're just banging ideas off of each other. How should we try this? What do you think about this case? What do you think about this defense? Right. So no matter how good you are, whatever it is, you're not going to be great unless you listen to other people, learn from other people, and just you know, listen is the main thing. We spend so much time, especially lawyers, man. We're arrogant. We think, oh, I've been through law school. I know more about this than you. You know, there's a there's a level of vanity that we all have, and sometimes we spend too much time worried about our own vanity and not listening to other people, so like like John Dyke has told me, you're good, but you're not great. So work hard to get great.
Andrew Decker 37:07
That's awesome. That is some great advice, and now I need to go work on listen more, work all my stuff, take take better criticism. All right. So one more question: How do people find you? They they've now heard that you're a winner, and and they want they want to find Tobias Lopez. How how do they find you?
Tobias Lopez 37:26
Well, I'm again I'm an associate with Ed Jones Law Firm. So Ed Jones A T T Y is.com is Ed Jones attorney. Ed Jones is our law office. Google him. I'm part of that firm. If you want criminal representation from us, if you just want to give me a shout out, TobiasXavier Lopez at gmail.com, Fort Worth Vaqueros. You want to talk some soccer? We can do that. Come out and see us next summer. But you can find me. I'm on social media: Facebook, Twitter. Just Tobias Xavier Lopez. You can find me out there, and again, email me. I don't care. Tobias Xavier Lopez at Gmail. All
Andrew Decker 38:05
right, all right, that's solid. Well, Tobias, thank you for being here. It's been fun. I've been smiling the whole time, catching up with a good friend. Obviously, we do a lot together, and so it's been it's been a pleasure for me. I'm going to let Andrew sign us off.
Andrew Herreth 38:20
Thanks, Andrew. Thanks, Tobias. Really great talking with you about this big win, and hope you have many, many more to come. Everyone, if you enjoyed this podcast, please leave us a rating on Apple Podcasts. We are now on Google Podcasts as well. Please leave us a rating there. If you want more information about the podcast, send us an email. Contact us individually. You can go to TexasCrimDefense.com again. That's Texascrimdefense.com for Andrew Decker. My name is Andrew Herreth. You've been listening to Andrew and Andrew on Texas Criminal Defense.
Andrew Decker 38:56
So a brief addendum to our episode with Tobias Lopez. The state did ask for a rehearing, and in the second court of appeals, denied that a rehearing and actually said, in its motion for rehearing, the state asserts that the appellate never argued that 40-207 a seven is unconstitutionally broad. This is an about face from the state's previous briefing, which not only acknowledged appellate's overbreadth arguments, but in fact referred to them in no fewer than seven times in its response, including a four-page subsection titled "Section 4207A Seven" is not unconstitutionally overbroad because it does not criminalize protected speech. We disagree with the state's new position. It's interesting that they that they argued that, and that the Court of Criminal Appeals basically just slapped them down and rejected that argument completely. But currently, it is being heard or being sent up to the Court of Criminal Appeals, and at a later time, if we find out about what they decide, we will let you know. Thanks for listening.