By Richard Guerra
Assistant Criminal District Attorney in Bexar County
Happy New Year! Congratulations on getting through what is frequently the most stressful and expensive season. Here’s hoping that—somewhere within a frantic end-of-year schedule—we all experienced some joy and maybe even a little peace.
Meanwhile, I’m writing from the past. The new year yet approaches. A holiday whirlwind cries cacophonous Christmas carols as it spreads across Texas, flinging baubles, mistletoe, and wrapping paper in all directions. It’s beautiful.
Ah! But you might have left a gift behind! It was delivered last June. No, it’s not from a department store (or Amazon). It’s from the Court of Criminal Appeals. And although Owens v. State doesn’t look like a present at first glance, it’s a gift to prosecutors across Texas. Let’s unwrap it together.
Background
It had been two years since Kevin Owens had any contact with his former psychologist. They had had 11 sessions. Dr. Lindsay Bira had been uncomfortable with Owens. She tried to refer him to another psychologist, but Owens refused. Instead, he stopped their sessions, cancelled the remainder, and told Dr. Bira to never contact him again. Owens emailed her professional email address after two years of silence:
My life is just as hopeless as ever. Maybe if I had the genes that would allow me to consider a modeling career then my life would be better, but I didn’t. You exploited, abused, and then abandoned me. I will never give you any more money, but if you wanted to talk to me then that would be possible. I’m sure you have better things to do though.[1]
Dr. Bira testified that the email was sickening and highly concerning. She didn’t reply to Owens. Instead, she forwarded it to the San Antonio Police Department (SAPD). Officials there told her not to block him so that they could document whether the messages escalated. The emails that followed would ultimately lead to Owens’s conviction of harassment under Texas Penal Code §42.07(a)(7), which criminalizes the sending of “repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another” with intent to harass, annoy, alarm, abuse, torment, embarrass, or offend.[2]
Owens’s second email to Dr. Bira came about a month later. It was long. He rambled about Bira’s personal and professional life. He had been looking her up online and reading her social media pages. He commented about Bira’s family, childhood, boyfriends, and career. He indicated that he knew her personal phone number and home address. He referenced photos of her that he found on social media, including one from her “modeling days in a see-through top” and other photos from Bira’s dating relationships. He called her “eye candy.” He said he wouldn’t be surprised if she were a prostitute. Bira did not respond. She testified that the email was “horrific and concerning.”[3]
The messages continued. Owens indicated that he had been scouring Dr. Bira’s public social media accounts and client website. He accused her of abusing, raping, and exploiting him. He called her a shitty therapist and a terrible person. He purported to revoke his agreement with Dr. Bira’s practice, privacy, and consent policies. He repeatedly asked for a $1,785 refund for his 11 sessions from two years prior. His messages told Dr. Bira, “You are encouraging me to kill myself,” and he said he was “raped every day.” He told her that she violated his confidentiality and that she touched him “in a sexual and inappropriate way during therapy.” Owens also asked her to find a girlfriend for him.[4]
In total, Owens sent 34 messages over more than three months to Dr. Bira’s professional email address, social media, and office phone.
Dr. Bira replied to Owens as an “office manager” from an administrative email account that was used for handling risky patients. She advised him to call 911, go to an emergency room, or call a suicide hotline. Otherwise, on SAPD’s advice, she did not respond. She sent all of Owens’s emails to police. Additionally, SAPD and Dr. Bira’s attorney sent Owens cease and desist letters. She eventually stopped seeing her patients in person and then moved away from Texas.
When asked whether she felt harassed by the repeated emails or by the emails’ content, Dr. Bira responded that it was both. She “felt abused from the very first email. Highly harassed.”
Throughout the trial, Owens objected to the emails’ admission because they were constitutionally protected speech. The trial court overruled his objections, and the jury found him guilty.
On appeal, Owens raised a host of issues, but our primary concern is his “as applied” challenge to Penal Code §42.07(a)(7). He argued that he had been prosecuted for the content of his messages because it was the messages’ content that caused Dr. Bira to feel harassed. Citing to Ex parte Sanders, the court of appeals reasoned that the First Amendment does not protect speech that is integral to criminal conduct. Thus, Owens’s speech—which he used to harass Dr. Bira—fell outside of its protection.[5]
Kevin Owens appealed to the Court of Criminal Appeals, which reversed the appeals court and remanded the case to the trial court for dismissal of the indictment.
What the judges said
Judge Keel authored the Court of Criminal Appeals’s (CCA) majority opinion, which four other judges joined. She begins by noting that the merits of an “as applied” constitutional challenge—in which the challenger must show that a statute was unconstitutionally applied to him—depends on the evidence. The Court recognized that “speech integral to criminal conduct” is a traditional category of speech for which content-based regulations are allowed. The court also observed that there is no “freewheeling authority to declare new categories of free speech outside the scope of the First Amendment.”[6]
Next, the Court discussed content-based laws that affect speech, which are laws that target speech based on its communicative content. Put another way: Content-based laws distinguish favored speech from disfavored speech based on the ideas or views expressed. Therefore, a law that restricts speech because it offends or causes discomfort is content-based. Dissimilarly, a restriction on the time, place, or manner of speech in a public forum that does not consider its content is content-neutral. However, a content-neutral law becomes content-based if authorities must examine the message’s content to determine whether there was a violation.[7]
The CCA discussed strict and intermediate scrutiny, reminding the reader that courts must apply strict scrutiny to content-based laws, which requires that the government prove the law is narrowly tailored to serve compelling state interests. Conversely, intermediate scrutiny applies to content-neutral laws that regulate the method or manner of speech but not the speech itself. Intermediate scrutiny requires that the law must further an important government interest by means that are substantially related to that interest.[8]
But what if a content-neutral statute is applied in a manner that regulates speech? Citing Holder v. Humanitarian Law Project,[9] the Court held that strict scrutiny applied. Moving on to Tex. Penal Code §42.07(a)(7), the Court recalled that it held the statute constitutional because it prohibits non-speech conduct. The statute’s gravamen—sending repeated electronic communications in a manner reasonable likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another—required no speech. A crime was committed whether a person repeatedly sent communications containing expressive speech or no speech at all.[10]
With all this in mind, the CCA recognized that the government’s ability to regulate speech depends on whether it can show that the speech invades “substantial privacy rights in an essentially intolerable manner.”[11] The Court next identified two examples of when the Unites State Supreme Court had upheld a selective restriction of offensive speech:
1) there is a captive audience, and
2) there is an invasion of unwanted ideas into the home.[12]
The Court went on to acknowledge that “the right of a person to be left alone must be weighed against the right of others to communicate.”[13]
The Court then applied this analysis the facts of the Owens case. In describing the facts, the Court acknowledged that Owens’s harassment conviction stemmed from sending about three dozen electronic messages during a 15-week period. All of these messages, which were mostly emails, were sent to professional—not personal—accounts. At the start of its analysis, the Court immediately distinguished between the act of sending messages and the speech that the messages themselves contain. Here, the Court deduced that the message’s content drove the prosecution, in large part because Dr. Bira called the police after receiving the first message instead of after receiving related messages. The Court determined that Owens would not have been prosecuted if his messages expressed a different tone or idea. For example, Dr. Bira would not have called the police if Owens had just said “good morning,” or had been polite.[14]
Next, the Court identified three reasons why—when weighing Owens’s right to free speech against Dr. Bira’s right to privacy—the scale tips in favor of Owens’s right to free speech.
First, Owens didn’t send his messages to Dr. Bira’s home or personal accounts. All his messages went to professional email addresses, office phone numbers, and public professional social media. Second, Dr. Bira was not a captive audience. She could have avoided Owens’s messages by deleting them without reading them or by blocking him. She did neither. Third, the Court emphasized that speech can be regulated only if there is “an invasion of substantial privacy rights and in an essentially intolerable manner.” And the facts of this case—34 messages sent over more than three months to a willing listener’s public accounts—do not constitute such an invasion.[15]
Because strict scrutiny applied, the State had to prove that it narrowly tailored its application of the statute to the defendant to serve compelling state interests. The State had argued that intermediate scrutiny applied under U.S. v. O’Brien, in which the defendant was prosecuted for burning his draft card. However, the Court distinguished this case from O’Brien because O’Brien could have been prosecuted for burning his draft card regardless of the message that he sent by doing it. Consequently, the Court held that the State failed to show that its application of §47.02(a)(7) survived strict scrutiny.[16]
The Court then cast aside the State’s argument that invalidating Owens’s conviction would invalidate the statute because admitting the messages’ content was necessary to prove 1) Owens’s intent to cause negative feelings and 2) the reasonable likelihood that that the messages would cause these feelings. The Court noted that it did not hold that the messages were inadmissible for any reason and then pointed to the fact that Owens conceded that the messages were admissible to show intent. But the trial court admitted the messages over objection and with no limiting instruction. The Court next focused on the text of the statute, which required the State to show that the manner in which the messages were sent must be reasonably likely to cause negative feelings instead of the messages themselves. Indeed, the messages’ content are irrelevant to the manner of their sending.[17]
In summation, the Court ruled that Owens was not prosecuted for sending messages, but for what the messages said. And the only remedy for the State violating a defendant’s First Amendment rights by its application of a statute is dismissal.
Judge Parker’s concurrence
Judge Parker pointed out that this case’s information had two counts. Count I contained the first three messages, which occurred about one month apart. Count II contained the rest of the messages, many of which were sent after Dr. Bira and SAPD sent letters to Owens. Accordingly, Count I could not be prosecuted without implicating speech. But Count II could be prosecuted without implicating speech. She noted that an “as applied” violation can result from an improper jury charge. She contended that Count II could have been remanded for jury charge error and a harm analysis. She also drew attention to the idea that a complainant like Dr. Bira could have suitable reasons for not blocking Owens’s harassing messages. For example, continuing to read the messages could notify Dr. Bira if he becomes an imminent danger to her.[18]
Judge Yeary’s dissent
According to Judge Yeary, the content of the messages is evidence of an accused’s intent, which will be highly relevant in most prosecutions under §42.07(a)(7). But that doesn’t mean that the accused is being prosecuted for the content of his communications. Judge Yeary criticized the Court’s ruling as a statement that §42.07(a)(7) will infringe on the First Amendment “anytime the electronic communication involves—well, communication.”[19]
The takeaway
Is it still possible to prosecute under §42.07(a)(7) without running afoul of the First Amendment? Almost certainly yes.
Remember—the State did not make a strict scrutiny argument to the Court. As such, this case does not demonstrate what a strict scrutiny analysis might look like when applied specifically to §42.07(a)(7).[20]
The Court’s primary concern was that the method by which Owens was prosecuted implicated what he said more than the method by which he said it. After all, §42.07(a)(7)’s gravamen is the sending of repeated electronic communications in a manner reasonable likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another, which requires no speech. Mounting a successful prosecution under this statute requires the State to focus on the manner in which the messages were sent instead of their content. And this opinion presents the State with meaningful suggestions on how to do just that.
Prosecutors might consider asking for limiting instructions when introducing a defendant’s communications into evidence, especially if the communications’ content is offensive. For example, the State could ask the trial court to instruct the jury that the defendant is not being prosecuted for the offensiveness of his communications, but for the manner by which they were sent. Consequently, the jury cannot consider the communication’s content—offensive or not—in determining whether a defendant sent repeated communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another. However, the jury can consider the communications’ content to determine a defendant’s intent.
Next, prosecutors should put facts into evidence that demonstrate that there was an invasion into the victim’s home. Here, the Court found that there was no home invasion because Owens sent all his messages to Dr. Bira’s professional and public accounts. However, in an era where so many people work from home, prosecutors should endeavor to show facts that blur or eliminate the line between work and home. Does the victim work at home? Does the victim’s office phone forward to her personal phone? Does she have a work cell phone that she takes home? Does she respond to and use professional social media from home? Does the method by which the defendant sends communications to the victim overflow from work and flood into her home life in a substantial way? Is the victim capable of divorcing her professional work from her home life in a way that could eliminate harassing communications from reaching her home?
Moreover, I would focus on what makes a captive audience. Judge Parker’s concurrence pointed out that the ability to block or delete messages without reading them does not necessarily mean an audience is not captive. A defendant can create his own captive audience by, among other things, the sheer volume of messages or by other interactions that could frighten or force the victim to read the messages. Blocking messages does little to prevent a victim from being a captive audience when a defendant constantly circumvents the blocks by using aliases and fake accounts. And the ability to block messages means little to a victim whom a defendant threatens into reading them. Prosecutors should elicit these facts from their witnesses if they exist.
In holding that Owens’s messages did not substantially invade Dr. Bira’s privacy rights in an essentially intolerable manner, the Court made mention that Dr. Bira was a willing listener. Consider showing the jury how a victim was not a willing listener, even if the victim was still listening. At bottom, we know that following police advice to not block a defendant does not make a listener unwilling. What about being afraid? Or the fact that he had compiled so much personal information about Dr. Bira? Or the volume of messages? Or blocking a defendant who then circumvents the block by sending messages in other ways? For example, did the defendant interact with the victim—outside of the communications for which the defendant is charged—in a manner that that frightened the victim into viewing his communications?
Appellate courts will likely evaluate some of these suggestions—and many others—over time. Although this seems dreadfully uncertain, Owens v. State is a gift to prosecutors because it makes clear that simply annoying or offending somebody with words cannot be prosecuted under §42.07(a)(7). While this was a rough result for this victim and it will force the State to have difficult conversations with a number of complainants about whether their situation is prosecutable, it also gives the State clear directions on if it should prosecute individuals under the statute. Ideologically, the line is clear: the State cannot use §42.07(a)(7) to prosecute people for what they say. The Court has eliminated a subset of prosecutions under this statute that were on the line of violating the First Amendment.
But with an ideologically clear line as a guide, attorneys must practically draw the lines through trial work and the appellate process that follows. If that isn’t a gift for prosecutors, then I don’t know what is.
[1] Owens v. State, No. PD-0075-24, 2025 WL 1587690, at *4 (Tex. Crim. App. June 4, 2025), reh’g denied (July 30, 2025).
[2] Id.
[3] Id.
[4] Id. at *4–*6.
[5] Id. at *1.
[6] Id. at *1.–*2
[7] Id. at *2.
[8] In Holder, the plaintiffs sought a declaration that a federal law which prohibited “knowingly providing support or resources to a foreign terrorist organization” was unconstitutional as applied to them because they wanted to provide legal and political aid to two organizations designated as foreign terrorist groups. The United States Supreme Court held that the statute—which regulated conduct—regulated these plaintiffs’ speech as applied to them. Consequently, the Supreme Court analyzed the case using strict scrutiny and upheld the statute as applied to the plaintiffs. Holder v. Humanitarian Law Project, 561 U.S. 1, 28, 130 S.Ct. 2705, 2724, 177 L.Ed.2d 355 (2010).
[9] Owens, 2025 WL 1587690 at *3.
[10] Id. (citing Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971) (“The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections”).
[11] Id. (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975), Hill v. Colorado, 530 U.S. 703, 717, 120 S.Ct. 2480, 2490, 147 L.Ed.2d 597 (2000); Rowan v. U.S. Post Office Dep’t, 397 U.S. 728, 736, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736 (1970)).
[12] Id.
[13] Id. at *7.
[14] Id.
[15] Id. at *7–*8.
[16] Id. at *8.
[17] Id. at *8–*9 (Parker concurring and dissenting).
[18] Id. at *19–*20 (Yeary dissenting).
[19] Having read the record for this case, I’m fairly certain that this particular prosecution would not have survived a strict scrutiny analysis.
[20] See Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014).