Threatening to Tell Ex's Employer That Ex Was Sleeping With Her Boss Isn't "Obscene Harassment"

From State v. Solis, decided last week by the Texas Court of Appeals (Justice Gina Benavides, joined by Chief Justice Dori Contreras and Justice Jaime Tijerina):

On August 5, 2020, Solis was charged by information with obscene harassment [a class B misdemeanor, Tex. Penal Code Ann. § 42.07(a)(4)]:

[O]n or about June 28, 2019, … SOLIS did then and there, with intent to harass, annoy, alarm, abuse, torment, or embarrass Jessica Gamboa [Moreno], intentionally and knowingly initiate communication by telephone OR by electronic communication with [Moreno], and in the course of the communication, make an obscene comment OR suggestion, to-wit: threatening to accuse [Moreno] of improper relations with co-workers AND/OR [Moreno]'s attorney to [Moreno]'s employer ….

Moreno [testified at trial that] she and Solis had a romantic relationship that ended in February of 2019. Moreno testified that after the relationship ended, Solis "constantly" called and left voicemails. Moreno described the nature of the voicemail Solis left on June 28, 2019:

[MORENO]: Basically, we could do this the hard way or the easy way and that he was going to call directly to the company that I worked with and let them know that I was sleeping with my boss and with an attorney from Robstown.

[STATE]: Okay. And by sleeping with, is that implying sex?

[MORENO]: Intercourse, yes….

[The obscene harassment statute provides,] "[a] person commits an offense if, with intent to arass, annoy, alarm, abuse, torment, or embarrass another, the person … initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene[.]" The Legislature defines obscene as "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." "If the comment does contain a description of an ultimate sex act, it is also necessary to examine the content of said description to determine whether it is patently offensive, offensive but not patently so, or not offensive at all."

"Patently offensive" is further defined in the penal code as "so offensive on its face as to affront current community standards of decency." In determining whether something is patently offensive, a factfinder's "personal beliefs regarding what is acceptable, tolerable, intolerable, indecent, decent, and the like are irrelevant and immaterial, because the [factfinder] decides the issue through the eyes and mind of the average person." Indeed, the underlying policy behind requiring the jury to apply contemporary community standards is to make certain that the conduct in question "will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person—or indeed a totally insensitive one."

We first begin by analyzing whether Solis's statement contained a description of an ultimate sex act. "[D]escriptions of 'ultimate sex acts' for the purposes of § 42.07(a)(1) and (b)(3) require more than just general averments of sexual activity." In viewing the evidence in the light most favorable to the jury, we conclude that "sleeping with" could be considered a description of an ultimate sex act; specifically, as Moreno testified, it is a euphemism for sexual intercourse.

The court of criminal appeals next instructs us to examine the "content of said description to determine whether it is patently offensive, offensive but not patently so, or not offensive at all." Although in our legal sufficiency review we must view the evidence in the light most favorable to the factfinder, the court of criminal appeals has instructed that, in obscenity cases, we must also "make the independent determination [of] whether the material that is alleged to be obscene is constitutionally obscene."

Miller provided the following as an example of obscene material that could be regulated by the states: "[p]atently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated." The United States Supreme Court has since held that

[i]f and when … a 'serious doubt' is raised as to the vagueness of the words 'obscene,' 'lewd,' 'lascivious,' 'filthy,' 'indecent,' or 'immoral,' … we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of[ ]that specific 'hard core' sexual conduct given as examples in Miller v. California.

The Supreme Court has reiterated this principle, stating that "[t]he kinds of conduct that a jury would be permitted to label as 'patently offensive' … are the 'hard core' types of conduct suggested by the examples given in Miller." …

The court of criminal appeals has held that the obscene harassment statute was drafted "with an eye toward the constitutional definition of obscenity under Miller." Following this holding, we construe § 42.07(a)(1) as meeting the minimum floor described by the Supreme Court since Miller; i.e., only those "hard core" descriptions of sexual conduct are prohibited. "Sleeping with," a euphemism for sexual intercourse, is not a "hard core" description of an ultimate sex act. The State appears to acknowledge as much by querying, "Does the fact that the physical act of intercourse was not itself described in graphic terms mean that it could not be 'patently offensive,' or could the circumstances surrounding the act be considered in determining whether the description was patently offensive?"

We disagree that the circumstances here elevate the comment's status to patently offensive. The circumstances surrounding the statement demonstrate Solis's intent to harass Moreno, but the particular content of this comment is simply not the "hard core" content to which the First Amendment turns a blind eye. And regardless, a statement is not considered patently offensive in Texas unless it is "so offensive on its face as to affront current community standards of decency."

In cases holding that the evidence is legally sufficient to sustain a conviction for obscene harassment, our sister courts have generally analyzed comments that contain some amount of vulgar or profane language. See Jasper v. State (Tex. App.—Houston [1st Dist.] 2014) (concluding that appellant's comment that complainant's husband "didn't like fucking [her]. He liked fucking [appellant] better" was "sufficient to establish that appellant made a comment that was obscene"); Rendon v. State (Tex. App.—Austin 2008) ("A rational trier of fact could find beyond a reasonable doubt that appellant's comment to the complainant that she 'would only charge fifty cents for a fuck' contained a patently offensive description of an ultimate sex act, specifically sexual intercourse."). But see Lafait v. State (Tex. App.—Tyler 2020) ("Considering how closely Appellant's request to be 'blown away' followed comments about [complainant] being 'eager to please' and willing to do 'whatever it takes,' the jury could have reasonably found that Appellant's messages constitute a solicitation to commit an ultimate sex act and are, therefore, obscene …."). Solis's comment did not contain similarly vulgar or profane language.

{Tyler Court of Appeals' holding in Lafait seems to imply that a jury would be justified in finding any solicitation to commit an ultimate sex act is obscene. Section 42.07(b)(3) defines obscene as "containing a patently offensive description of or a solicitation to commit an ultimate sex act …." Whether "patently offensive" modifies both "description of" and "a solicitation to commit" is an issue of statutory construction that was not explicitly addressed in Lafait. Because that particular issue is not squarely before us now, we decline to address it as well.}

We agree that Solis's statement was rude and offensive. But because Solis's comment did not contain a patently offensive description of an ultimate sex act, we conclude the trial court did not abuse its discretion in granting Solis's motion for new trial based on the legal sufficiency of the evidence….

We modify the trial court's judgment to reflect that it granted a new trial based on the insufficiency of the evidence and entered a judgment of acquittal…. "[W]hen a jury returns a guilty verdict and the trial court grants the defendant's motion for new trial based upon insufficiency of the evidence … , double jeopardy prevents the trial court from entering any other judgment than an acquittal." …

The court had no occasion to resolve whether Solis's behavior might constitute some other crime; but the court did note,

The record does not reflect any attempt by the State to amend the complaint that charged Solis with obscene harassment. See Tex. Penal Code Ann. § 42.07(a)(4) (providing that a person commits harassment if, acting with the necessary intent, he "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").