Legal Question in Criminal Law in Texas

This is the harassment statute:

� 42.07. HARASSMENT.

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he:

(1) initiates communication by telephone, in writing, or by electronic communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene;

(2) threatens, by telephone, in writing, or by electronic communication, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of his family or household, or his property;

(3) conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury;

(4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another;

(5) makes a telephone call and intentionally fails to hang up or disengage the connection;

(6) knowingly permits a telephone under the person's control to be used by another to commit an offense under this section; or

(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

(b) In this section:

(1) "Electronic communication" means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes:

(A) a communication initiated by electronic mail, instant message, network call, or facsimile machine; and

(B) a communication made to a pager.

(2) "Family" & "household" have the meaning assigned by Chapter 71 Family Code.

(3) "Obscene" means containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function.

(c) An offense under this section is a Class B misdemeanor, except that the offense is a Class A misdemeanor if the actor has previously been convicted under this section.

In Karenev v. State, 258 S.W.3d 210, 213 (Tex.App.-Fort Worth 2008) the court found that the statute was constitutionally vague. Unfortunately, that opinion did not withhold scrutiny on a petition for discretionary review to the court of criminal appeals. Karenev v. State, 281 S.W.3d 428 (Tex.Crim.App. 2009). The CCA which has the final say, if it wants to rule on a criminal case, determined that the issue had not been raised properly in the trial court so it was not preserved for an appellate decision. (I did not deeply delve into whether the issue as been raised again because there are many cases to go through, but my guess is since the statute is still on the books and they are still filing charges, there are no cases which are still good law which hold the statute unconstitutional. Doesn't mean that it is constitutional - could just mean that no one has raised the issue again, and properly this time.)