Wilson, Elisa Merrill ( 2015 )


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  •                                                                              PD-0623-15
    PD-0623-15                         COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 5/26/2015 3:09:11 PM
    Accepted 5/27/2015 2:00:49 PM
    No. ________________
    ABEL ACOSTA
    CLERK
    In The
    COURT OF CRIMINAL APPEALS OF TEXAS
    Austin, Texas
    Elisa Merrill Wilson, Petitioner
    v.
    State of Texas, Respondent
    On Appeal from County Court at Law No. 2 Fort Bend County, Texas
    and from the First Court of Appeals, Houston, Texas
    Trial Court Case No. 10CCR149142
    Court of Appeals Case No. 01-11-01125-CR
    PETITION FOR DISCRETIONARY REVIEW
    Timothy A. Hootman
    SBN 09965450
    2402 Pease St
    Houston, TX 77003
    713.247.9548
    713.583.9523 (f)
    May 27, 2015                Email: thootman2000@yahoo.com
    ATTORNEY FOR       PETITIONER,       ELISA
    MERRILL WILSON
    Oral argument requested
    1
    Identity Of Judges, Parties, and Counsel
    The following judges, parties, and counsel are associated with this case in
    the trial court and on appeal:
    Trial judge:                     Hon. Jeffrey A. McMeans
    Judge, County Court at Law No. 2
    301 Jackson St
    Richmond, TX 77469
    Justices from the First          Hon. Sherry Radack, Chief Justice
    Court of Appeals:                Hon. Jane Bland, Justice
    Hon. Rebeca A. Huddle, Justice
    301 Fannin St
    Houston, TX 77002-2066
    Defendant/Appellant:             Elisa Merrill Wilson
    Attorney for appellant           David R. Bires
    (in the trial court):            SBN 02335000
    J.P. Borgan Chase Bldg
    712 Main St, Ste 2400
    Houston, TX 77002
    Attorney for appellant           Timothy A. Hootman
    (in the court of appeal          SBN 09965450
    and the Court of Criminal        2402 Pease St
    Appeals):                        Houston, TX 77003
    Appellee:                        The State of Texas
    Attorneys for appellee           John J. Harrity III
    (in the trial court):            District Attorney for Fort Bend County, TX
    Laurel Ellisor
    Assistant District Attorney
    301 Jackson St, Rm 101
    Richmond, TX 77469
    Attorneys for appellee           Abdul Faruki
    (in the court of appeals         Assistant District Attorney
    2
    and the Court of Criminal   301 Jackson St, Rm 101
    Appeals):                   Richmond, TX 77469
    Lisa C. McMinn
    State Prosecuting Attorney
    John R. Messinger
    Assistant State’s Attorney
    P.O. Box 13046
    Austin, TX 78711
    3
    Table Of Contents
    IDENTITY OF JUDGES, PARTIES, AND COUNSEL.…………………………………………… 2
    TABLE OF CONTENTS……………………………………………………………………………… 4
    INDEX OF AUTHORITIES………………………………………………………………………….. 5
    STATEMENT REGARDING ORAL ARGUMENT ……………………………………………….. 6
    STATEMENT OF CASE ………………………………………………………………………………8
    STATEMENT OF PROCEDURAL HISTORY ………………………………………………………9
    QUESTIONS PRESENTED FOR REVIEW…………………………………………………………10
    ARGUMENT ………………………………………………………………………………………….11
    I.   Introduction. ……………………………………………………………….…..11
    II. Texas preservation-of-error rules. ………………………………. 16
    III. Federal due process and the Texas preservation-of-
    error rules. …………………………………………………………………….. 18
    IV. Vagueness and overbreadth.…..……………………………………. 22
    PRAYER …………………………………………………………………………………………….. 33
    CERTIFICATE OF WORD COUNT………………………………………………………………. 35
    CERTIFICATE OF SERVICE ………………………………………………………………………35
    APPENDIX…………………………….. Memorandum Opinion on Remand from the
    First Court of Appeals
    4
    INDEX OF AUTHORITIES
    Texas cases:
    Ex parte Halstead, 
    147 Tex. Crim. 453
    , 
    182 S.W.2d 479
    (1944)……………… 25
    Karenev v. State, 
    281 S.W.3d 428
    (Tex. Crim. App. 2009)……… 10, 14, 16, 17
    Long v. State, 
    931 S.W.2d 285
    (Tex. Crim. App. 1996)…………………….. 27, 32
    May v. State, 
    765 S.W.2d 438
    (Tex. Crim. App. 1989)……………………………25
    Osterberg v. Peca, 
    12 S.W.3d 31
    (Tex. 2000)……………………………………….. 21
    Rodriguez v. State, 
    93 S.W.3d 60
    (Tex. Crim. App. 2002)…………………….. 24
    Scott v. State, 
    322 S.W.3d 662
    (Tex. Crim. App. 2010)……………………passim
    State v. Wilson, 
    448 S.W.3d 418
    (Tex. Crim. App. 2014)……………….. passim
    Wilson v. State, 
    431 S.W.3d 92
    (Tex. App.—Houston [1st Dist.] 2013)……… 11
    U.S. Supreme Court cases:
    Ashcroft v. Free Speech Coalition, 
    535 U.S. 234
    (2002)………………………… 27
    Broadrick v. Oklahoma, 
    413 U.S. 601
    (1973)………………………………….. 27, 28
    Chaplinsky v. New Hampshire, 
    315 U.S. 568
    (1942)……………………………..28
    Curtis Pub. Co. v. Butts, 
    368 U.S. 130
    (1967)……………………………..………….19
    Freytag v. Comm’r, 
    501 U.S. 868
    (1991)……………………………………………….19
    Grayned v. Rockford, 
    408 U.S. 104
    (1972)…………………………………….. 25, 26
    New York v. Ferber, 
    458 U.S. 747
    (1982)…………………………………………….. 27
    Spence v. Washington, 
    418 U.S. 405
    (1974)………………………………………….30
    United States v. Olano, 
    507 U.S. 725
    (1993)…………………………………………. 19
    Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 
    455 U.S. 489
          (1982)……………………………………………………………………………………….25
    Virginia v. Hicks, 
    539 U.S. 113
    (2003)………………………………………………….26
    Federal court of appeals cases:
    5
    Gormley v. Director, Conn. State Dep’t of Prob., 
    632 F.2d 938
    (2nd Cir.
    1980)………………………………………………………………………………………..29
    Kramer v. Price, 
    712 F.2d 174
    (5th Cir. 1983)…………………………………………27
    Thorne v. Bailey, 
    846 F.2d 241
    (4th Cir. 1988)……………………………………… 28
    Out-of-state cases:
    McKillop v. State, 
    857 P.3d 358
    (Alaska Ct. App. 1993)………………………… 30
    State v. Thorne, 
    333 S.E.2d 817
    (W. Va. 1985)……………………………………… 31
    6
    STATEMENT REGARDING ORAL
    ARGUMENT
    Petitioner requests oral argument.     This Court has given
    conflicting messages as to when an argument may be raised for the
    first time on appeal.     Whether or if application of waiver and
    forfeiture rules applies when a subsequent re-interpretation of a
    statute has caused a party to “waive” an argument, or whether in
    those situations such rules violate due process, raise significant
    questions that warrant oral argument, especially in light of the
    complexities of working through these questions under the
    circumstances of this case.
    7
    STATEMENT OF THE CASE
    A jury found appellant guilty of telephone harassment. The
    court of appeals reversed and acquitted. This Court reversed and
    remanded to have the remaining issues addressed that had been
    raised in appellant’s brief in the court of appeals. On remand, the
    court of appeals affirmed the conviction.
    8
    STATEMENT OF PROCEDURAL HISTORY
    On May 9, 2013, the First Court of Appeals acquitted appellant
    in a published opinion. Wilson v. State, 
    431 S.W.3d 92
    (Tex. App.—
    Houston [1st Dist.] 2013). This Court reversed and remanded to have
    the remaining issues that had been raised in appellant’s brief in the
    court of appeals addressed. State v. Wilson, 
    448 S.W.3d 418
    (Tex.
    Crim. App. 2014).
    On March 31, 2015, the First Court of Appeals affirmed
    appellant’s conviction with an unpublished opinion. Wilson v. State,
    No. 01-11-01125-CR (Tex. App.—Houston [1st Dist.] 2015, March 31,
    2015).
    On April 14, 2015, appellant filed a motion for rehearing which
    was denied on April 30, 2015.
    9
    QUESTIONS PRESENTED FOR REVIEW
    Question one:
    Does Karenev v. State, 
    281 S.W.3d 428
    (Tex. Crim. App.
    2009) bar Wilson from arguing for the first time, after the
    court of appeals and this Court have issued opinions, that
    the harassment statute is vague and overbroad in
    violation of the First and Fourteenth Amendment to the
    U.S. Constitution?
    Question two:
    Does application of Texas’s preservation-of-error rules to
    bar Wilson from raising her vagueness and overbreadth
    challenges to the harassment statute after the court of
    appeals and this Court have issued opinions—in a
    supplemental brief on remand—violate federal due
    process under the Fifth and Fourteenth Amendments of
    the U.S. Constitution?
    Question three:
    Is section 42.07(a)(4) of the harassment statute as re-
    interpreted in Wilson v. State, 
    448 S.W.3d 418
    (Tex.
    Crim. App. 2014) vague and overbroad on its face?
    Question four:
    Is section 42.07(a)(4) of the harassment statute as re-
    interpreted in Wilson v. State, 
    448 S.W.3d 418
    (Tex.
    Crim. App. 2014) vague and overbroad as applied to the
    facts developed in the trial court regarding appellant’s
    conviction?
    10
    ARGUMENT
    I.   Introduction.
    Wilson was convicted of the portion of the telephone
    harassment statute that says:
    A person commits an offense if, with intent to
    harass, annoy, alarm, abuse, torment, or
    embarrass another, he … makes repeated
    telephone communications … in a manner
    reasonably likely to harass, annoy, alarm,
    abuse, torment, embarrass, or offend another.
    TEX. PENAL CODE § 42.07(a)(4).
    At the time of Wilson’s conviction, the relevant authority interpreting
    this section was Scott v. State, 
    322 S.W.3d 662
    (Tex. Crim. App.
    2010), which held that “repeated telephone communications” meant
    “more than one telephone call in close enough proximity to properly
    be termed a single episode”. 
    Id. at 669
    n.12. Based on the Scott
    interpretation, Wilson argued in the court of appeals that there was
    legally insufficient evidence to support her conviction because the
    telephone calls in her case were more than thirty days apart. Wilson
    v. State, 
    431 S.W.3d 92
    , 94 (Tex. App.—Houston [1st Dist.] 2013)
    rev’d, State v. Wilson, 
    448 S.W.3d 418
    (Tex. Crim. App. 2014). The
    court of appeals, also relying on the Scott interpretation, agreed with
    Wilson and held that because the calls were not within a thirty-day
    11
    period of each other there was legally insufficient evidence to sustain
    the conviction. 
    Id. at 96
    (citing Scott).
    On the State’s petition for discretionary review, this Court
    reversed the court of appeals’ judgment of acquittal by abrogating
    Scott and re-interpreting the meaning of “repeated telephone
    communications” such that (1) the phrase repeated telephone
    communications no longer requires the communications to occur
    within a certain time frame in relation to one another, and (2) “a
    facially legitimate reason for the communication does not negate per
    se an element of the statute.”      
    Wilson, 448 S.W.3d at 420
    .      On
    rehearing in this Court, Wilson attempted to raise for the first time on
    appeal the vagueness and overbreadth of the portion of the statute
    that she was convicted of violating by arguing:
    Under this Court’s prior interpretation of the
    telephonic harassment statute there was no
    need for Wilson to challenge the vagueness or
    overbreath of the statute because, under Scott,
    there was legally insufficient evidence to
    sustain Wilson’s conviction based on the
    evidence presented at trial. Because of this,
    Wilson pursued her defense in the trial court
    and on appeal on the basis of insufficiency,
    without making the unnecessary and, under
    Scott, unviable argument that the statute was
    vague or subject to an overbreath challenge.
    The court of appeals agreed with Wilson that
    the evidence was insufficient under Scott and
    12
    acquitted. This Court, by reinterpreting the
    language used in the statute, has created a
    vagueness and overbreath problem with the
    statute, which must now be raised by
    appellant—under the Scott interpretation of
    the statute there was no clear vagueness or
    overbreath problem, but under the Wilson
    interpretation there is. Namely, that the
    statute as interpreted by this Court in its
    opinion reversing the court of appeals’
    decision to acquit Wilson does not require the
    telephonic communications to occur within a
    certain time frame in relation to one another
    and that a facially legitimate reason for the
    communications do not negate an element of
    the statute. This interpretation causes the
    statute to be vague and overbroad, according
    to Supreme Court jurisprudence.
    See Aplt. M. Rhr. at 4-5 filed in the Court of Criminal Appeals. The
    majority of the Court denied the motion for rehearing without
    opinion, but Justice Alcala wrote an opinion in dissent (joined by
    Justices Johnson and Cochran) noting that, “Because there had been
    no reason to challenge the vagueness or overbreadth of the telephone
    harassment statute as this Court had interpreted its requirements in
    Scott, appellant had no reason to assert that challenge until this
    Court’s reformulation of the law in this case.” 
    Wilson, 448 S.W.3d at 431
    . Thus, this Court did not reach the merits of Wilson’s vagueness
    and overbreadth argument.
    13
    On remand in the court of appeals, Wilson filed a motion for
    leave to file a supplemental brief, which was granted. In Wilson’s
    supplemental brief she argued that (1) Karenev v. State does not bar
    her from raising for the first time on appeal and after remand that the
    harassment statute as re-interpreted by Wilson is vague or overbroad,
    (2) the statute is vague and overbroad as re-interpreted by Wilson on
    its face, and (3) the statute is vague and overbroad as re-interpreted
    by Wilson as applied.
    The court of appeals affirmed the conviction and wrote in its
    memorandum opinion that “well-established error preservation rules
    requiring that such complaints [e.g., the facial challenge] be made
    both in the trial court and in the initial briefing on appeal preclude
    our consideration of these arguments on remand” and therefore “we
    hold that Wilson waived her facial challenge and thus decline to
    consider it, because it was first raised in supplemental briefing on
    remand.” Memo. Op. at 22, 24. Therefore, Wilson filed a motion for
    rehearing arguing:
    If it is true that Texas law results in a waiver of
    the facial challenge complaint in this case by
    not having raised it before Scott was
    abrogated by Wilson, then those Texas waiver
    rules violate appellant’s right to due process
    under the fifth and fourteenth amendments of
    14
    the federal constitution.      That is, state
    preservation rules that are so harsh as to
    violate federal due process are void under the
    supremacy clause.
    The motion for rehearing was denied without opinion.
    Thus, two procedural and two substantive questions are
    presented: (1) Do Texas preservation-of-error rules bar Wilson from
    raising the vagueness and overbreadth challenges to the Wilson re-
    interpretation of section 42.07(a)(4) of the harassment statute? If so,
    (2) do those rules, under the circumstances of this case, violate
    Wilson’s right to federal due process?      (3) Does the Wilson re-
    interpretation render section 42.07(a)(4) vague and overbroad on its
    face?    And, (4) does the Wilson re-interpretation cause section
    42.07(a)(4) to be vague and overbroad as applied?
    15
    II.   Texas preservation-of-error rules.
    Question one:
    Does Karenev v. State, 
    281 S.W.3d 428
    (Tex. Crim. App.
    2009) bar Wilson from
    arguing for the first time, after
    the court of appeals and this
    Court have issued opinions,
    that the harassment statute is
    vague and overbroad in
    violation of the First and
    Fourteenth Amendment to the
    U.S. Constitution?
    Generally, a vagueness and overbreadth challenge may not be
    raised for the first time on appeal. See Karenev v. State, 
    281 S.W.3d 428
    , 434 (Tex. Crim. App. 2009). This is because the “State and the
    trial court should not be required to anticipate that a statute may later
    be held to be unconstitutional” absent an initial challenge in the trial
    court. 
    Id. This rationale
    applies to Wilson in this case who should
    not be required to have anticipated that section 42.07(a)(4) of the
    harassment statute would be re-interpreted by this Court as a
    prerequisite to challenging the yet-to-exist re-interpretation later on.
    If such a rule were taken seriously by appellate lawyers, anticipatory
    preservation steps inundate appellate records and briefs in a very
    confusing and inefficient way.       This petition should be granted to
    clarify whether that really is the state of Texas preservation-of-error
    16
    law in the context of significant statutory re-interpretations by this
    Court. If is suggested that this is not the law in Texas as evidenced
    by Karenev and Justice Alcala’s dissent regarding denial of rehearing
    in Wilson.
    This same rationale applies to Wilson in this case; namely, she
    should not be required to anticipate that a statute will be re-
    interpreted by this Court barring her from raising the constitutional
    infirmities of the new interpretation because she did not raise the
    challenge for the first time in the trial court. The concurring opinion
    in Karenev by Justice Cochran (joined by Justices Price, Womack and
    Johnson) makes clear that in the appropriate circumstance, a
    vagueness and overbreadth challenges can be raised for the first time
    on appeal. 
    Id. at 435-41.
    This case presents such an appropriate case,
    and therefore, the court of appeals should have addressed the
    vagueness and overbreadth challenges presented in Wilson’s
    supplemental brief on remand. In short, Wilson should be allowed to
    raise the vagueness and overbreadth challenges for the first time on
    appeal, and in the court of appeals, and this Court should grant this
    petition because the court of appeals’ holding on remand that Wilson
    17
    “waived her facial challenge” is in conflict with Karenev and Justice
    Alcala’s statement in her dissenting opinion in Wilson.
    III. Federal due process and the Texas
    preservation-of-error rules.
    Question two:
    Does application of Texas’s
    preservation-of-error rules to
    bar Wilson from raising her
    vagueness and overbreadth
    challenges to the harassment
    statute after the court of
    appeals and this Court have
    issued     opinions—in       a
    supplemental       brief   on
    remand—violate federal due
    process under the Fifth and
    Fourteenth Amendments of
    the U.S. Constitution?
    It would make no sense for Wilson to have argued in her first
    brief on appeal that “under Scott there is insufficient evidence, but
    just in case Scott is overruled by way of a possible future
    reinterpretation of section 42.07(a)(2) by the Court of Criminal
    Appeals different from Scott thus allowing for the record in this case
    to contain sufficient evidence, that reinterpretation gives rise to a
    facial challenge which is being raised now.”         This speculative
    argument is what Wilson would have had to lodge under the court of
    appeals’ failure-to-preserve holding if she wanted to have the merits
    18
    addressed after Scott was abrogated by Wilson—of course it could not
    have been addressed before Scott was abrogated because the facial
    challenge alone arose after Scott was abrogated.          If the court of
    appeals is correct and this truly is the state of Texas preservation
    rules, then they violate federal due process in the procedural context
    of this case.
    Of course, an objection must be raised timely, meaning when
    the opportunity first arises. Timeliness problems are presented when
    a right or rule is first created after trial but before resolution of a case
    on appeal. In these situations, federal due process requires that a
    party be allowed to raise the objection for the first time on appeal.
    See Curtis Pub. Co. v. Butts, 
    368 U.S. 130
    (1967). It is illogical and
    unfair to require an objection before the problem even exists. Texas
    preservation rules to the contrary violate federal due process.
    Whereas waiver involves the “intentional relinquishment of a
    known right,” forfeiture implies the “failure to make the timely
    assertion of a right.”    United States v. Olano, 
    507 U.S. 725
    , 733
    (1993); see also Freytag v. Comm’r, 
    501 U.S. 868
    , 895 n.2 (1991). In
    this case, this distinction is important because, clearly, Wilson did not
    waive the facial challenge complaint. Thus, this court of appeals’
    19
    conclusion that the error was not properly preserved under Texas
    preservation law turns on the timeliness question in the forfeiture
    context.
    Texas preservation of error rules require that an objection be
    made when the opportunity first arises. If the rule in Texas is that a
    party must object to an adverse law that does not even exist as a
    prerequisite to challenging the yet-to-exist law later, then application
    of that Texas rule to this case violates federal due process because it is
    unfair to impose such an impossible burden on a party.            Such a
    burden violates basic notions of rule-of-law—if there is a rule, a party
    is entitled to rely on it without being required to make futuristic
    ascertainments about the rule’s being abrogated. See LON L. FULLER,
    THE MORALITY    OF   LAW 106 (rev. ed. 1969). Perhaps the most basic
    element underlying all of the criteria of the rule of law is that human
    actors can fairly comply with the law. If human actors cannot fairly
    comply with the law, not only does that particular law fail to obey the
    rule of law, but it also calls into question the entire enterprise of law
    as a set of rules that can and should govern human conduct. For
    Texas preservation-of-error rules to be so esoteric and Byzantine to
    require inclusion of predictions of how a statute will be reinterpreted
    20
    violates fundamental notions of rule of law and therefore federal due
    process.
    Federal constitutional law in this regard states that when
    deciding whether a party has waived its federal constitutional claims
    in state court, courts look first to procedural rules that govern when a
    party must raise those claims and then consider whether those
    procedural rules are adequate as a matter of federal substantive
    constitutional law to protect the constitutional interests at stake.
    Osterberg v. Peca, 
    12 S.W.3d 31
    (Tex. 2000). Moreover, regarding
    first amendment issues, as in this case, waiver must be shown by clear
    and compelling circumstances. 
    Id. A court
    has a heightened duty to
    protect fundamental rights, such as those protected by the first
    amendment of the federal constitution.           Application of state
    preservation of error rules so as to avoid reaching the merits of a
    fundamental rights issue can itself be a violation of federal due
    process. Application of forfeiture or waiver to Wilson in this case,
    where she raised the facial challenge to TEX. PENAL CODE ANN. §
    42.07(a)(4) when the opportunity first arose, violates Wilson’s right
    to due process of law as protected by the fifth and fourteenth
    amendment of the federal constitution. Therefore, if it is true that
    21
    Texas law is as the court of appeals held that Wilson did not preserve
    the constitutional issues she seeks to raise, that Texas law violates
    federal due process. These important, and fundamental, questions
    should be addressed by this Court via this petition for discretionary
    review.
    IV.   Vagueness and overbreadth.
    Question three:
    Is section 42.07(a)(4) of the
    harassment statute as re-
    interpreted in Wilson v. State,
    
    448 S.W.3d 418
    (Tex. Crim.
    App.    2014)     vague    and
    overbroad on its face?
    Question four:
    Is section 42.07(a)(4) the
    harassment statute as re-
    interpreted in Wilson v. State,
    
    448 S.W.3d 418
    (Tex. Crim.
    App.    2014)    vague     and
    overbroad as applied to the
    facts developed in the trial
    court regarding appellant’s
    conviction?
    Subsection (a)(4) of the harassment statute, as re-interpreted
    by this Court in Wilson, is void for vagueness and overbreadth in
    violation of the First and Fourteenth Amendments to the United
    States Constitution. That is, the statute is “facially” unconstitutional
    without reference to the particular facts presented in the trial court
    22
    record of this case; the statute is “as applied” unconstitutional
    because, as re-interpreted by this Court in Wilson, it is inherently
    vague in reference to Wilson’s conduct.          More specifically, as
    interpreted, subsection (a)(4)’s phrase “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”
    is unconstitutionally vague because it is impossible for Wilson or any
    other citizen to know what is prohibited. This Court has concluded in
    Wilson that the legislature intended by the statute (1) that the phrase
    repeated   telephone     communications     does    not   require   the
    communications to occur within a certain time frame in relation to
    one another, and (2) that a facially legitimate reason for the
    communication does not negate per se an element of the statute. See
    Wilson. This broadened re-interpretation from what was prohibited
    under the Scott interpretation makes it impossible to know when
    calls beyond one call and what content of a telephone call are
    tantamount to criminal conduct, thereby implicating vagueness and
    overbreadth problems “facially” with respect to all citizens and “as
    23
    applied” with respect to the specific conduct presented in the record
    of this case.
    When reviewing a challenge to the constitutionality of a statute,
    it is presumed that the statute is valid and that the legislature acted
    reasonably in enacting the statute. Rodriguez v. State, 
    93 S.W.3d 60
    ,
    69 (Tex. Crim. App. 2002). Here, it should be kept in mind that the
    in Scott and Wilson this Court was interpreting the legislative intent
    as to what the legislature meant when using the words employed in
    the harassment statute.     That is, the Court was interpreting the
    statute; it was not considering whether the statute violated the federal
    constitution. Interestingly enough, the new and broad Wilson re-
    interpretation gives rise to the question of whether the statute is
    overly vague and overly broad, a question that was not addressed by
    this Court. Now that this Court has clarified what the legislature
    intended by use of the words contained in the statute, the
    constitutional questions are ripe for consideration. And, to repeat, as
    a starting point, it is presumed that the statute is constitutional.
    
    Rodriguez, 93 S.W.3d at 69
    .
    Additionally, if First Amendment freedoms are not implicated,
    Wilson must show that the statute is unconstitutional as applied to
    24
    her conduct. See Village of Hoffman Estates v. Flipside, Hoffman
    Estates, Inc., 
    455 U.S. 489
    , 495 (1982). On the other hand, if the
    statute’s language is capable of reaching protected speech or
    otherwise threatens to inhibit the exercise of constitutional rights, a
    stricter vagueness standard applies than when the statute regulates
    unprotected conduct. 
    Id. at 497.
    That is, when speech is at stake,
    Wilson is allowed to raise a facial vagueness challenge without
    showing the statute is vague as applied to her conduct because the
    otherwise continued existence of the statute in unnarrowed form
    would tend to suppress constitutionally protected rights. 
    Id. A legislative
    enactment is void for vagueness if its prohibitions
    are not clearly defined. Grayned v. City of Rockford, 
    408 U.S. 104
    ,
    108 (1972); May v. State, 
    765 S.W.2d 438
    , 439 (Tex. Crim. App.
    1989); see also Ex parte Halstead, 
    147 Tex. Crim. 453
    , 
    182 S.W.2d 479
    , 482 (1944). Although overbreadth and vagueness challenges
    often appear in tandem, they are distinct concepts. “An overbroad
    statute is one designed to burden or punish activities which are not
    constitutionally protected, but … includes within its scope activities
    which are protected by the First Amendment.” John E. Novak, et. al.,
    Constitutional Law, ch. 18, § III at 868 (2d ed. 1983); see also
    25
    Virginia v. Hicks, 
    539 U.S. 113
    , 
    123 S. Ct. 2191
    , 2196 (2003). In
    contrast, a statute is unconstitutionally vague if it fails to give “a
    person of ordinary intelligence a reasonable opportunity to know
    what is prohibited, so that he may act accordingly” or if it allows for
    arbitrary and discriminatory enforcement by failing to provide an
    objective standard for those who are charged with enforcing or
    applying the law. 
    Grayned, 408 U.S. at 108
    .
    The U.S. Supreme Court’s Grayned opinion elaborates on the
    vagueness problem:
    Vague laws offend several important values.
    First, because we assume that man is free to
    steer between lawful and unlawful conduct, we
    insist that laws give the person or ordinary
    intelligence a reasonable opportunity to know
    what is prohibited, so that he may act
    accordingly.     Vague laws may trap the
    innocent by not providing fair warning.
    Second, if arbitrary and discriminatory
    enforcement is to be prevented, laws must
    provide explicit standards for those who apply
    them. A vague law impermissibly delegates
    basic policy matters to policemen, judges, and
    juries for resolution on an ad hoc and
    subjective basis, with the attendant dangers of
    arbitrary and discriminatory application.
    Third, but related, where a vague statute abuts
    upon sensitive areas of basic First
    Amendment freedoms, it operates to inhibit
    the exercise of those freedoms. Uncertain
    meanings inevitably lead citizens to steer far
    wider of the unlawful zone that if the
    26
    boundaries of the forbidden areas are clearly
    marked.
    
    Id. at 108-09
    (quotations omitted); see also Long v. State, 
    931 S.W.2d 285
    , 287 (Tex. Crim. App. 1996); Kramer v. Price, 
    712 F.2d 174
    , 176-
    77 (5th Cir. 1983) (case striking down pre-1983 version of the Texas
    harassment statute), vacated on reh’g, 
    716 F.2d 284
    (1983), trial
    court aff’d after statute repealed, 
    723 F.2d 1164
    (1984).
    On the other hand, the purpose of the overbreadth doctrine is to
    protect those persons who, although their speech or conduct is
    constitutionally protected, “may well refrain from exercising their
    rights for fear of criminal sanctions susceptible of application to
    protected expression.” New York v. Ferber, 
    458 U.S. 747
    , 768 (1982)
    (quotation omitted).     While the Constitution “gives significant
    protection from overbroad laws that chill speech within the First
    Amendment’s vast and privileged sphere,” Ashcroft v. Free Speech
    Coalition, 
    535 U.S. 234
    , 244 (2002), the application of the
    overbreadth doctrine is “strong medicine” to be employed “only as a
    last resort,” Broadrick v. Oklahoma, 
    413 U.S. 601
    , 613 (1973). Thus,
    “[i]t remains a matter of no little difficulty to determine when a law
    may properly be held void on its face and when such summary action
    is inappropriate.” 
    Broadrick, 413 U.S. at 615
    (quotations omitted).
    27
    The overbreadth of a statute must be real and substantial, judged in
    relation to the statute’s plainly legitimate sweep. See 
    Broadrick, 413 U.S. at 615
    . The criterion of substantial overbreadth precludes a
    court from invalidating a statute on its face simply because of the
    possibility, however slight, that it might be applied in some
    unconstitutional manner.    See Secretary of State of Md. V. J.H.
    Munson Co., 
    467 U.S. 947
    , 964-65 (1984). If a statute is found to be
    substantially overbroad, the statute must be invalidated unless the
    court can supply a limiting construction or partial invalidation that
    narrows the scope of the statute to constitutionally acceptable
    applications. 
    Broadrick, 413 U.S. at 615
    -16.
    It is well established that “[r]esort to epithets or personal abuse
    is not in any proper sense communication of information or opinion
    safeguarded by the Constitution, and its punishment as a criminal act
    … raise[s] no question under that instrument.” Cantwell v.
    Connecticut, 
    310 U.S. 296
    , 309-10 (1940); see also Chaplinsky v.
    New Hampshire, 
    315 U.S. 568
    , 572 (1942). As one federal court has
    stated, “ ‘[p]rohibiting harassment is not prohibiting speech, because
    harassment is not … protected speech.’ ” Thorne v. Bailey, 
    846 F.2d 241
    , 243 (4th Cir. 1988), quoting State v. Thorne, 
    333 S.E.2d 817
    , 819
    28
    (W. Va. 1985) (upholding West Virginia’s telephone harassment
    statute).   Such “speech” is more properly termed conduct and is
    therefore not subject to First Amendment protection. 
    Thorne, 846 F.2d at 243
    (telephone harassment statute “prohibits conduct and not
    protected speech”); Gormley v. Director, Conn. State Dep’t of Prob.,
    
    632 F.2d 938
    , 941-42 (2nd Cir. 1980) (Connecticut’s telephone
    harassment statute “regulates conduct, not mere speech. What is
    proscribed is the making of a telephone call, with the requisite intent
    and in the specified manner.”).
    On the other hand, a telephone call can be, and generally is,
    speech and not conduct, thereby invoking First Amendment
    protection. Whether the communications in this case are protected
    speech versus prohibited conduct is the essential gravamen.        The
    legislative intent as reflected in the statute (according to Wilson)
    moves the line dividing these two concepts significantly, thereby
    implicating the vagueness and overbreadth problems. That is, under
    the Wilson re-interpretation of what the legislature intended by the
    statute (1) the phrase repeated telephone communications does not
    require the communications to occur within a certain time frame in
    29
    relation to one another, and (2) a facially legitimate reason for the
    communication does not negate per se an element of the statute.
    “In deciding whether particular conduct possesses sufficient
    communicative elements to bring the First Amendment into play,
    [the U.S. Supreme Court has] asked whether ‘[a]n intent to convey a
    particularized message was present, and [whether] the likelihood was
    great that the message would be understood by those who viewed it.”
    Texas v. Johnson, 
    491 U.S. 397
    , 404 (1989) (quoting Spence v.
    Washington, 
    418 U.S. 405
    , 410-11 (1974)).
    According to at least one appellate opinion that is in keeping
    with U.S. Supreme Court admonishments, a telephonic harassment
    statute is not vague and overly broad if it is written so as “to prohibit
    telephone calls only when the call has no legitimate communicative
    purpose—when the caller’s speech is devoid of any substantive
    information and the caller’s sole intention is to annoy or harass the
    recipient.” McKillop v. State, 
    857 P.3d 358
    , 364 (Alaska Ct. App.
    1993). The legislative intent regarding the harassment statute (as
    clarified by Wilson) is squarely opposed to this refrain. Under the
    Wilson re-interpretation the “facially legitimate reason for the
    communication does not negate per se an element of the statute.”
    30
    That is, any call after the first harassing call at any time is subject to
    criminal liability, even if the content of the second call contains
    objectively non-harassing substantive content and is made more than
    thirty days after the first call. Given that this is what the legislature
    intended by adopting the harassment statute, the vagueness and
    overbreadth doctrines are violated because from a “facial attack”
    perspective in is impossible to know what calls are criminal—
    apparently any calls beyond one are criminal if they are annoying,
    such as annoying sales calls, political campaign calls, or calls from
    exes.   See Wilson, (Keller, P.J., concurring) and (Cochran, J.,
    concurring).    And from an “as applied” perspective, appellant’s
    conduct as described in the court of appeals’ original opinion was
    neutral in content and spread out of a relatively long period of time
    which would be hard are impossible to know is criminal under the
    statute. First amendment freedoms are implicated because the re-
    interpretation covers not only calls intended to be harassing speech,
    which is not protected, but also non-harassing speech that is intended
    to communicate proper information and ideas.               The statute’s
    amazingly broad attempt to define what annoys and alarms people
    and its failure to specify beyond (1) that the phrase repeated
    31
    telephone communications does not require the communications to
    occur within a certain time frame in relation to one another, and (2)
    that a facially legitimate reason for the communication does not
    negate per se an element of the statute causes it to be
    unconstitutionally vague on its face and as applied to the facts of this
    case. The vagueness of the proscribed conduct described could be
    reduced, for example, by linking it to more specific conduct, such as a
    specific time frame between calls, a specific number of calls beyond
    which is harassing, or facially neutral communications as being
    beyond the reach of the statute. See 
    Long, 931 S.W.2d at 293-94
    (examining the Fifth Circuit analysis of the re-1983 Texas harassment
    statute in Kramer).
    Finally, it should be noted that for this Court to conclude that
    the harassment statute is vague and over broad in violation of the
    First and Fourteenth Amendments to the U.S. Constitution does no
    offense to the Wilson opinion by this Court because there the Court
    was not confronted with the constitutional challenge, was only
    focusing on the statutory construction question of what exactly the
    legislature intended by the words employed in the statute, and
    therefore was deferring to later courts, such as this Court now or the
    32
    court of appeals on remand to take the first bite at determining the
    constitutional infirmities of the statute.
    PRAYER
    Petitioner prays that this petition be granted, that briefing on
    the merits be ordered, and that this case be reversed and the original
    judgment of acquittal be reinstated, or that the case be remanded to
    the court of appeals for further consideration.
    Respectfully submitted,
    /s/Timothy A. Hootman_____
    TIMOTHY A. HOOTMAN
    SBN 09965450
    2402 Pease St
    Houston, TX 77003
    713.247.9548
    713.583.9523 (f)
    E-mail: thootman2000@yahoo.com
    ATTORNEY FOR PETITIONER
    33
    CERTIFICATE OF WORD COUNT
    I hereby certify that, in accordance with Rule 9.4 of the Texas
    Rules of Appellate Procedure, that the number of words contained in
    this document are 4,445 according to the computer program used to
    prepare this document.
    Dated: May 26, 2015.
    /s/Timothy A. Hootman_____
    Timothy A. Hootman
    CERTIFICATE OF SERVICE
    I hereby certify that, in accordance with Rule 9.5 of the Texas
    Rules of Appellate Procedure, I have served the forgoing document
    upon the following attorneys by electronic service:
    John J. Harrity III
    Assistant District Attorney
    Fort Bend County
    301 Jackson St, Rm 101
    Richmond, TX 77469
    Lisa C. McMinn
    John R. Messinger
    P.O. Box 13046
    Austin, TX 78711
    Dated: May 26, 2015.
    /s/Timothy A. Hootman_____
    TIMOTHY A. HOOTMAN
    34
    Opinion issued March 31, 2015
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-11-01125-CR
    ———————————
    ELISA MERRILL WILSON, Appellant
    V.
    STATE OF TEXAS, Appellee
    On Appeal from the County Court at Law No. 2
    Fort Bend County, Texas
    Trial Court Case No. 10CCR149142
    MEMORANDUM OPINION
    In 2011, a Fort Bend County jury found Elisa Wilson guilty of telephone
    harassment, and the trial court assessed punishment of 180 days in jail, probated
    for 12 months. See TEX. PENAL CODE ANN. § 42.07(a)(4) (West Supp. 2014).
    Wilson appealed her conviction, raising four issues: (1) that the evidence was
    insufficient to support the conviction; (2) that the trial court erred in rejecting
    Wilson’s proffered jury instruction; (3) that the trial court abused its discretion in
    overruling Wilson’s objection to the State’s extraneous-offense evidence; and (4)
    that the trial court abused its discretion in excluding proffered defense evidence.
    On original submission to this court, we found the evidence insufficient and, as a
    result, reversed. The Court of Criminal Appeals reversed, holding that evidence
    that Wilson left six telephone messages for Nicole Bailey over a 10-month period
    supported the statutory requirement of “repeated telephone calls” and that the
    benign content, or the facially legitimate purpose, of a telephone call does not
    legally negate the prohibited intent of the call. The Court of Criminal Appeals
    remanded the case to this Court for consideration of Wilson’s jury-charge and
    evidentiary complaints. Also, Wilson seeks to raise both facial and as-applied First
    Amendment challenges to the telephone harassment statute in a supplemental brief
    filed after remand. We affirm.
    Background
    The information against Wilson charged that, “on or about April 6, 2009
    thr[ough] March 3, 2010, [Wilson] did then and there, with intent to harass, annoy,
    alarm, abuse, torment or embarrass Nicole Bailey, make repeated telephone
    communications to Nicole Bailey in a manner reasonably likely to harass or annoy
    or alarm or abuse or torment or embarrass or offend the said Nicole Bailey.” The
    2
    jury heard evidence that Wilson left six telephone messages for Bailey, on April 6,
    2009, June 11, 2009, August 31, 2009, September 5, 2009, December 23, 2009,
    and February 5, 2010. In these messages, Wilson:
    •    said that she saw a dog in her yard that looked like another
    neighbor’s dog and asked Bailey to let them know that the
    neighbor could come pick it up if they were missing their dog;
    •    told Bailey that she did not want Bailey to talk to her or
    approach her in public ever again;
    •    referred to an incident that occurred on August 30, 2009, in
    which Wilson followed Bailey through a grocery store
    screaming at her; Wilson said that she was caught off guard
    and thought “it was an attack,” and stated that she was calling
    to say she was sorry;
    •    complained that the work Bailey was having done on her
    driveway was against the deed restrictions;
    •    told Bailey that she saw what looked like cement debris from
    the driveway job that needed to be cleaned up, and that she
    was asking her “nicely this time”; and
    •    reminded Bailey that Wilson had surveillance cameras, told
    Bailey that she could “come pick up her newspaper,” and
    warned Bailey to leave her alone and not “accost” or “harass”
    her any more.
    The content of Wilson’s calls was not overtly harassing. For this reason, the
    State sought to admit evidence of Wilson’s various interactions with Bailey and
    other neighbors over the course of several years.
    3
    Bailey moved into a Fort Bend County subdivision in 2000. She became
    acquainted with her neighbors, the Wilsons. After Stephanie Ballard and her
    husband moved into the neighborhood, they all became friends and socialized
    frequently. Bailey and Wilson developed a close friendship, which they likened to
    a “mother-daughter” relationship. Ballard and Bailey, who were nearer each other
    in age, also became close friends.
    The first witness to testify at trial was Stephanie Ballard. In December
    2004, the Ballards held a Christmas party, which Bailey and the Wilsons attended.
    The party took on a celebratory tone until the conversation turned to politics.
    Ballard’s husband said something that upset Wilson. She raised her voice, and,
    using profanity, left abruptly.
    The Ballards’ relationship with Wilson became strained. When Wilson set
    off fireworks in early 2005, Ballard, upset that the noise had awakened her toddler,
    went outside and confronted Wilson. The next day, she went to Wilson’s home to
    discuss the situation, Wilson invited her into her dining room, went into the
    kitchen, and returned holding a revolver, which she placed on the table pointing
    toward Ballard. Then, Wilson told Ballard, “If you would like to talk, let’s go
    ahead and talk.” Wilson explained to Ballard her understanding of her legal right
    to set off fireworks.
    4
    After that incident, Wilson set off fireworks with greater frequency,
    beginning early in the morning and sometimes hourly. Ballard filed a lawsuit in
    the justice court seeking a “peace bond” to prevent Wilson from setting off
    fireworks.    Bailey agreed to appear at the hearing on Ballard’s behalf.        The
    proceeding was unsuccessful; the justice court decided that Wilson was acting
    within her rights to set off the fireworks.
    After the hearing, Wilson became even more hostile to Ballard and turned
    against Bailey for siding with Ballard. She continued discharging fireworks and
    made other loud noises with an air horn and her car horn. According to Ballard,
    Wilson reported child abuse to Children’s Protective Services, alleging that Ballard
    was mentally unstable and that she “was involved in a pornographic pedophile
    website, that [her] children were being used for a pornographic website of some
    sort.”
    In December 2005, the Ballards went to Bailey’s home to greet her during
    the holidays and encountered Wilson, who had also been invited. Wilson leaned
    toward Ballard’s husband to greet him, and he backed away from her. Shortly
    thereafter, the Ballards received a letter from Wilson’s lawyer alleging that Ballard
    had assaulted Wilson during the incident. Around the same time, the Ballards
    found nails in their car tires, which they attributed to Wilson. Ballard testified to
    various other incidents involving Wilson, including the following:
    5
    • When Ballard returned home from the hospital with her second child,
    she noticed a sign in Wilson’s window stating: “Never mind the gun.
    Beware of the neighbor”;
    • Wilson took pictures of her and her children when they were out in
    the front yard;
    • Wilson filed a false report with Animal Control that the Ballards
    allowed their dog to run loose in a rabid state.
    Ballard explained that she and her family moved from the neighborhood
    specifically because of Wilson’s behavior toward them. After they moved, Ballard
    testified, Wilson
    • came to Ballard’s workplace and told Ballard to stop sending her
    letters, which Ballard had not sent in the first place;
    • told Ballard’s boss, “Do you know . . . what kind of person you have
    working for you?,” after which she was dismissed from the premises;
    • called Ballard twice on her cell phone in January 2010 and talked
    about incidents with her (and Ballard’s former) neighbors, which
    Ballard found harassing; and
    • came up to the Ballards in a restaurant and told them how much she
    liked their new house, which unnerved Ballard because she had taken
    lengths to keep Wilson from knowing her new home’s location and
    Wilson’s description indicated that she knew where they lived.
    The second witness to testify at trial was Tim Simmons, the neighborhood’s
    representative to the homeowner’s association. Simmons related his experience in
    dealing with Wilson in 2001, when the HOA sought easements from residents to
    build a community fence around the perimeter. Simmons testified that Wilson
    6
    agreed to allow the fence to be on her property, but that she resisted signing an
    easement to the HOA. Simmons also testified to many neighborhood complaints
    he received about Wilson, including a 2006 complaint from Ballard about Wilson’s
    use of firecrackers, and that the association had received fewer complaints about
    Ballard and none about Bailey. Simmons recalled that Wilson began screaming at
    him and his wife at an HOA meeting. In a 2007 election, Wilson’s husband ran
    against Simmons for the neighborhood representative position and lost.       The
    following Halloween, Wilson decorated her fence with a ghoulish figure and put a
    sign on it with the name “Sam” referring to Simmons’s wife.
    The third witness was Lisa Decoster, another of Wilson’s neighbors.
    Decoster testified that in 2005 and 2006, she took care of the Wilsons’ dog when
    they were away. She described the Wilson’s home as “unusual,” because it had pet
    feces on the floor and multiple law books on the dining room table. Decoster
    corroborated Simmons’s testimony that Wilson was argumentative at HOA
    meetings. Decoster also testified Wilson taped a letter on neighborhood doors in
    November 2007 that talked about Stephanie Ballard in a “negative” and
    “derogatory” way and had nothing to do with the ongoing HOA election.
    According to Decoster, Wilson pointed out Bailey’s home to her and told her that
    that Bailey made pornography videos and was a drug dealer.
    7
    The first day of trial closed with testimony from Joan Hendricks, another
    neighbor. Like Ballard and Bailey, Hendricks had been friends with Wilson but
    was no longer. Hendricks buttressed previous testimony concerning Wilson’s
    behavior, including her propensity to set off fireworks and make other loud noises,
    her animosity toward Simmons’s wife, problems with Wilson’s behavior raised at
    HOA meetings, and Wilson’s false assault allegations against Ballard’s husband.
    Hendricks recounted that her friendship with Wilson ended in late 2008.
    Hendricks had watched the Wilsons’ home when they were out of town, and, when
    the Wilsons returned, Wilson made a police report falsely alleging that Hendricks’s
    daughter had taken Wilson’s car for a joyride. Hendricks told the jury that Wilson
    would throw firecrackers at her husband when he was out or at their cars in the
    driveway. She also described an incident where she saw Wilson walking in the
    street with a large kitchen knife, which, Wilson told her, was to protect herself
    against loose dogs.
    Enrique Ozuna, who married Nicole Bailey in 2011, testified the following
    morning. He explained that he first encountered Wilson while at the grocery store
    with Bailey and that Wilson had screamed at them and accused them of being
    involved in prostitution.
    Bailey testified next. She described her circumstances when she moved into
    the neighborhood and how she became friends with Wilson. She recounted a trip
    8
    that she took with Wilson to California following the death of Wilson’s father, and
    that Bailey was taken aback at Wilson’s confrontations with her former
    stepmother, whom Wilson accused of having murdered him, and area law
    enforcement.
    Bailey explained that her friendship with Wilson ended when she testified on
    behalf of the Ballards at the peace bond proceeding. Wilson sued Bailey for
    negligence under her homeowner’s insurance policy based on the December 2005
    incident involving Ballard’s husband.
    Bailey testified that she sent letters to Wilson and her lawyer in April 2006
    asking Wilson to stop calling her. According to Bailey, three CPS complaints were
    made concerning Ballard’s children and included allegations that Bailey was using
    the children for internet pornography.       Bailey also described Wilson’s 2008
    Halloween decorations and the reference to Simmons’s wife. According to Bailey,
    Wilson also harassed her by calling the police and feigning concern that Bailey
    was suicidal, which caused the police to visit Bailey’s home. Bailey explained the
    situation to the police, and the police instructed Wilson to stop communicating
    with Bailey. Wilson retaliated by throwing dog feces into Bailey’s yard and
    throwing fireworks at her car.
    9
    Bailey testified to the details of the messages that Bailey left on her
    telephone answering machine on six occasions—April 6, 2009; June 11, 2009;
    August 31, 2009; September 5, 2009; December 23, 2009; and February 5, 2010.
    Officer Stevenson with the Fort Bend County Sheriff’s Department testified
    about his investigation of the harassment complaint made by Ballard. He learned
    of Wilson’s treatment of Bailey in the course of that investigation, and he recorded
    Bailey’s statement to serve as the basis for her harassment complaint.
    Discussion
    I.    Charge Error
    During the charge conference, Wilson asked the trial court to include her
    proposed definition for “repeated telephone communications” to mean “more than
    one telephone call in close enough proximity to properly be termed a single
    episode.” The trial court refused the instruction which, Wilson claims, was error.
    The trial court must give the jury a written charge that sets forth the law
    applicable to the case. TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). We
    review a claim of jury-charge error using the procedure set out in Almanza v. State,
    
    686 S.W.2d 157
    (Tex. Crim. App. 1985), which first requires us to determine
    whether there is error in the charge. Ngo v. State, 
    175 S.W.3d 738
    , 743 (Tex.
    Crim. App. 2005) (citing Middleton v. State, 
    125 S.W.3d 450
    , 453 (Tex. Crim.
    App. 2003)). Where, as here, the appellant has properly preserved a claim of
    10
    charge error by an objection or request for instruction, we must reverse if the error
    is calculated to injure the defendant’s rights, that is, if there was “some harm.”
    Treviño v. State, 
    100 S.W.3d 232
    , 242 (Tex. Crim. App. 2003).
    The Court of Criminal Appeals disavowed our reliance on the proffered
    instruction in overruling Wilson’s legal sufficiency challenge. See State v. Wilson,
    
    448 S.W.3d 418
    , 422–23 (Tex. Crim. App. 2014). In the context of Wilson’s
    charge complaint, we look to whether the instruction properly set forth the law
    applicable to the case.
    The Court of Criminal Appeals held that the trial court erred in submitting
    an instruction purporting to define a statutorily undefined term in Kirsch v. State,
    
    357 S.W.3d 645
    (Tex. Crim. App. 2012). The defendant was charged with DWI
    under section 49.04 of the Texas Penal Code, which provides that “[a] person
    commits an offense if the person is intoxicated while operating a motor vehicle in a
    public place.” TEX. PENAL CODE ANN. § 49.04(a), quoted in 
    Kirsch, 357 S.W.3d at 649
    –50. In that case, the defendant objected to the inclusion in the charge of the
    definition of “operate” as “to exert personal effort to cause the vehicle to function.”
    The Court looked to the Code Construction Act for guidance, which
    provides that statutorily undefined words and phrases shall be “construed
    according to the rules of grammar and common usage.” 
    Kirsch, 357 S.W.3d at 650
    (quoting TEX. GOV’T CODE ANN. § 311.011). Words that have a technical or
    11
    particular legal meaning may require definition in the charge, but common terms
    that have not acquired a technical meaning and may be interpreted according to
    their common usage need not be defined. Id.; see Medford v. State, 
    13 S.W.3d 769
    , 772 (Tex. Crim. App. 2000) (explaining that jurors should be provided
    uniform definition of statutorily undefined terms like “arrest,” which have acquired
    precise legal meaning).
    The Court classified “operate” as a common term subject to interpretation
    according to its common usage, observing that “nothing in our case law suggests
    that a risk exists that jurors may arbitrarily apply an inaccurate definition to the
    term ‘operate’ or that an express definition is required to assure a fair
    understanding of the evidence.” 
    Kirsch, 357 S.W.3d at 650
    . It concluded that,
    “[a]lthough the definition set forth in the charge is an appropriate definition for an
    appellate court to apply in assessing the sufficiency of the evidence to support the
    ‘operate’ element, instructing the jurors as to that definition in this case
    impermissibly guided their understanding of the term” and improperly focused the
    jury on certain evidence, making it an improper comment on its weight. See 
    id. at 652.
    In this case, the Court of Criminal Appeals abrogated earlier caselaw and
    held that the term “repeated” in the telephone harassment statute “simply speaks in
    terms of the number of telephone communications, it does not attempt to define the
    12
    required frequency of the communications or temporal proximity of one
    communication to another.” 
    Wilson, 448 S.W.3d at 424
    . As a common term, the
    jury was entitled to rely on its understanding of “repeated.” See 
    id. Thus, similar
    to the challenged definition in Kirsch, the proffered definition would have
    impermissibly confined the jury’s understanding of the term and improperly
    focused them on the frequency of the calls and the length of time between them,
    constituting an improper comment on the weight of the evidence. Accordingly, we
    hold that the trial court correctly rejected the proffered definition. See 
    Kirsch, 357 S.W.3d at 652
    .
    II.   Evidentiary Complaints
    A.     Standard of review
    We review the trial court’s evidentiary rulings for abuse of discretion. See
    Layton v. State, 
    280 S.W.3d 235
    , 240 (Tex. Crim. App. 2009); Montgomery v.
    State, 
    810 S.W.2d 372
    , 380, 391 (Tex. Crim. App. 1990). A trial court abuses its
    discretion if its decision is outside the zone of reasonable disagreement or if it acts
    without reference to guiding rules or principles. Burden v. State, 
    55 S.W.3d 608
    ,
    615 (Tex. Crim. App. 2001); 
    Montgomery, 810 S.W.2d at 391
    . If the ruling was
    correct under any theory of law applicable to the case, we must uphold the
    judgment. Martin v. State, 
    173 S.W.3d 463
    , 467 (Tex. Crim. App. 2005).
    13
    B.    Admission of extraneous-act evidence
    Wilson challenges the trial court’s admission of evidence of many incidents
    demonstrating her problematic and deteriorating behavior in the neighborhood
    toward various neighbors over a span of several years. Wilson objected to the
    evidence under Texas Rules of Evidence 403 and 404(b) before and during trial
    and received running objections to the State’s use of the evidence throughout the
    trial, preserving her challenge for appellate review. See Clark v. State, 
    365 S.W.3d 333
    , 339 (Tex. Crim. App. 2012) (citing TEX. R. APP. P. 33.1(a)(1)(A)).
    Rule 404(b) provides that “[e]vidence of other crimes, wrongs or acts is not
    admissible to prove the character of a person in order to show action in conformity
    therewith.” TEX. R. EVID. 404(b). The Supreme Court of the United States has
    explained that
    Rule 404(b) is rooted in the common-law tradition of disallowing the
    prosecution for using any evidence of a defendant’s evil character to
    establish probability of his guilt. . . . The state may not show
    defendant’s prior trouble with the law, specific criminal acts, or ill
    name among his neighbors, even though such facts might logically be
    persuasive that he is by propensity a probable perpetrator of the crime.
    The inquiry is not rejected because character is irrelevant; on the
    contrary, it is said to weigh too much with the jury and to so over
    persuade them as to prejudge one with a bad general record and deny
    him a fair opportunity to defend against a particular charge.”
    Michelson v. United States, 
    335 U.S. 469
    , 475–76, 
    69 S. Ct. 213
    , 218 (1948),
    quoted in Old Chief v. United States, 
    519 U.S. 172
    , 182, 
    117 S. Ct. 644
    , 650–51
    14
    (1997). Rule 404(b) further provides that evidence may be admissible for other
    purposes, “such as proof of motive, opportunity, intent, preparation, plan,
    knowledge, identity, or absence of mistake or accident.” TEX. R. EVID. 404(b); see
    Old 
    Chief, 519 U.S. at 187
    , 117 S. Ct. at 653. For purposes of justifying the
    admission of extraneous-offense evidence, intent is a contested issue if the required
    intent for the primary offense cannot be inferred from the act itself or if the
    defendant presents evidence to rebut the inference that the required intent existed.
    Caro v. State, 
    771 S.W.2d 610
    , 617 (Tex. App.—Dallas 1989, no pet.); McGee v.
    State, 
    725 S.W.2d 362
    , 364 (Tex. App.—Houston [14th Dist.] 1987, no pet.).
    Wilson complains that the extraneous-offense evidence was inadmissible
    character-conformity    evidence   that   labeled   Wilson    as   a   neighborhood
    troublemaker who should be convicted for her other bad behavior even if the
    telephone calls themselves were not harassing in nature. The State, on the other
    hand, argues that the extraneous-offense evidence was relevant to prove Wilson’s
    intent to harass—an essential element of the offense—even if the calls otherwise
    seemed infrequent and innocuous.
    In the first appeal, the Court of Criminal Appeals observed that the
    surrounding facts and circumstances are relevant to the issue of intent. In her
    concurring opinion in this case, Justice Cochran explained that
    A telephone harassment common plan or scheme might take the form
    of numerous telephone calls within a short period of time, all relating
    15
    to a single objective, or they might be calls that are repeated over a
    long period of time, but still relating to a single objective or goal.
    For example, a person might make various unwanted telephone calls,
    in-person harassing statements, derogatory social-media posts, false
    reports to the police, animal control, or CPS, and perhaps play
    practical jokes on the victim—all interspersed over a year or more—
    with the ultimate goal of publicly humiliating the victim, making that
    person lose her job, making her move, or literally driving her crazy.
    The telephone calls might be repeated only three or four times, but,
    coupled with the evidence of other types of harassment, they are
    sufficient to prove the person’s scheme or plan and his intent to harass
    the victim.
    
    Wilson, 448 S.W.3d at 429
    (Cochran, J., joined by Johnson and Alcala, JJ.,
    concurring). Although Wilson’s multiple disparate acts were not similar to the
    telephone calls on their face, the calls were part of a common scheme or plan to
    harass.   The circumstances surrounding the 2006 peace bond hearing showed
    Wilson’s motive for turning on Bailey, and, in many of the incidents in which
    Wilson exhibited animosity toward Ballard, it was directed to some extent at
    Bailey as well. The evidence of Wilson’s harassing conduct toward Bailey and
    Ballard also tends to prove intent.
    Even if evidence is admissible under Rule 404(b), it may be inadmissible
    under Rule 403 if its probative value is substantially outweighed by the danger of
    unfair prejudice, confusion of the issues, misleading the jury, considerations of
    undue delay, or needless presentation of cumulative evidence. Casey v. State, 
    215 S.W.3d 870
    , 879 (Tex. Crim. App. 2007); see TEX. R. EVID. 403. We accord the
    16
    trial court substantial discretion in balancing the Rule 403 factors, mindful that
    “the mere fact that a trial judge may decide a matter within his discretionary
    authority in a different manner than an appellate judge in a similar circumstance
    does not demonstrate that an abuse of discretion has occurred.” 
    Montgomery, 810 S.W.2d at 380
    .
    Rule 403 favors admissibility of relevant evidence, and the presumption is
    that generally, relevant evidence will be more probative than unfairly prejudicial.
    
    Id. Unfair prejudice
    does not mean the evidence injures the opponent’s case—“the
    central point of offering evidence.” Rogers v. State, 
    991 S.W.2d 263
    , 266 (Tex.
    Crim. App. 1999). “Rather[,] it refers to ‘an undue tendency to suggest decision
    on an improper basis, commonly, though not necessarily, an emotional one.’” 
    Id. (quoting Cohn
    v. State, 
    849 S.W.2d 817
    , 820 (Tex. Crim. App. 1993)).
    Although not limited to the following enumerated factors, courts should
    balance the following factors under a Rule 403 analysis: (1) the probative value of
    the evidence; (2) the potential of the evidence to impress the jury in some
    irrational, yet indelible, way; (3) the time needed to develop the evidence; and
    (4) the proponent’s need for the evidence. Prible v. State, 
    175 S.W.3d 724
    , 733
    (Tex. Crim. App. 2005). The trial court is presumed to have conducted the proper
    balancing test if it overrules a 403 objection, regardless of whether it conducted the
    17
    test on the record. See Williams v. State, 
    958 S.W.2d 186
    , 195–96 (Tex. Crim.
    App. 1997).
    The evidence of Bailey’s friendship with Wilson, and its ending—due, in
    substantial part, to Bailey’s participation in the Ballards’ peace bond hearing,
    coupled with evidence of Wilson’s bad conduct toward Bailey for the years
    following the hearing—led to their interactions at the time Wilson made the
    telephone calls. After the peace bond hearing, Wilson perceived Bailey as being
    aligned with Ballard and against Wilson. As a result, this evidence is probative of
    Wilson’s intent to harass Bailey.
    We do not reach the question of whether the trial court erred in admitting the
    remaining extraneous-acts evidence—involving Wilson’s conduct toward the HOA
    representative and his wife and in HOA meetings, the signs outside of her home,
    and her bad behavior toward other neighbors—because, even assuming it did, it
    did not affect her substantial rights. See TEX. R. APP. P. 44.2(b) (stating that non-
    constitutional error “that does not affect substantial rights must be disregarded.”).
    The erroneous admission of evidence does not affect substantial rights “if the
    appellate court, after examining the record as a whole, has fair assurance that the
    error did not influence the jury, or had but a slight effect.” Solomon v. State, 
    49 S.W.3d 356
    , 365 Tex. Crim. App. 2001), quoted in Motilla v. State, 
    78 S.W.3d 352
    , 355 (Tex. Crim. App. 2002); Martinez v. State, No. 01–10–00622–CR, 2011
    
    18 WL 5026457
    , at *4 (Tex. App.—Houston Oct. 20, 2011, pet. ref’d) (mem. op., not
    designated for publication).     In determining the extent to which the error
    influenced the jury, we consider the entire record, the nature of the evidence
    supporting the verdict, the character of the alleged error and its connection with
    other evidence in the case, and whether the State emphasized the error. 
    Motilla, 78 S.W.3d at 355
    –56.      The remaining extraneous-acts evidence was not highly
    inflammatory and did not take a substantial amount of time for the State to present,
    and was in many ways repetitive of the un-neighborly conduct that Wilson had
    engaged in toward Bailey and Ballard.
    At Wilson’s request, the trial court gave the jury a limiting instruction,
    informing the jurors about the purpose of the evidence and warning that they
    should not consider it for any purpose unless from the evidence presented it found
    beyond a reasonable doubt that Wilson had committed the extraneous acts. This
    instruction minimized the prejudice associated with the extraneous-acts evidence.
    See Miller v. State, 
    196 S.W.3d 256
    , 268 (Tex. App.—Fort Worth 2006, pet. ref d);
    Simpson v. State, 
    886 S.W.2d 449
    , 452 (Tex. App.—Houston [1st Dist.] 2003, pet.
    ref’d); see also Robinson v. State, 
    701 S.W.2d 895
    , 899 (Tex. Crim. App. 1985)
    (“A proper instruction on the limited use of an extraneous offense will also lessen
    the prejudice.”). We must presume that the jury followed the trial court’s
    19
    instruction. See Gamez v. State, 
    737 S.W.2d 315
    , 324 (Tex. Crim. App. 1987).
    We thus reject Wilson’s extraneous-offense evidentiary challenge.
    C.     Exclusion of interview recording
    Relying on the rule of optional completeness, Wilson proffered the audio
    recording of Officer Stevenson’s interview with Nicole Bailey in connection with
    her cross-examination of the officer. Wilson contends that the trial court erred in
    excluding the tape because it would have shown that Bailey was not as upset and
    traumatized by Wilson’s actions closer in time to their occurrence as she seemed
    during her trial testimony.
    The rule of optional completeness “is designed to reduce the possibility of
    the jury receiving a false impression from hearing only a part of some act,
    conversation, or writing.” Walters v. State, 
    247 S.W.3d 204
    , 218 (Tex. Crim. App.
    2007), quoted in Peña v. State, 
    353 S.W.3d 797
    , 814 (Tex. Crim. App. 2011).
    Wilson did not seek to impeach Bailey with the recording, and the State did not
    offer any part of the recording during Officer Stevenson’s direct testimony.
    Stevenson testified that, during the interview, Bailey “exhibited an array of
    emotions from laughing to crying to telling me she is scared.” This is a reasonably
    accurate description of the recorded interview. We hold that the trial court acted
    within its discretion in determining that the evidence presented by the State did not
    create a false impression that admission of the recording would have corrected.
    20
    III.   First Amendment Challenges
    In a supplemental brief after remand, Wilson brings both facial and as-
    applied First Amendment challenges to the telephone harassment statute, claiming
    that it is void for vagueness and overbreadth.1         Wilson acknowledges that,
    generally, a defendant may not raise a facial challenge based on constitutional
    vagueness or overbreadth for the first time on appeal. See Karenev v. State, 
    281 S.W.3d 428
    , 434 (Tex. Crim. App. 2009). Wilson did not raise her facial challenge
    in the trial court or in this court on direct appeal. But, relying on an opinion
    dissenting from the denial of her motion for rehearing in the Court of Criminal
    Appeals, in which the dissenting justices raised the potential for constitutional
    infirmity in connection with the statute, she requests that we allow supplemental
    briefing on the issue on remand. See 
    Wilson, 448 S.W.3d at 430
    (Alcala, J., joined
    by Johnson and Cochran, JJ., dissenting from denial of rehearing).
    Generally, an appellant must raise an issue in her principal brief to have it
    reviewed on appeal. See TEX. R. APP. P. 38.3; Barrios v. State, 
    27 S.W.3d 313
    ,
    322 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). If an issue is raised later in
    the appellate proceedings, Rule 38.7 provides that a “brief may be amended or
    1
    Wilson attempted to raise her First Amendment challenges in a motion for
    rehearing in the Court of Criminal Appeals. A majority of the Court denied the
    motion without opinion. See Wilson v. State, 
    448 S.W.3d 418
    , 430 (Tex. Crim.
    App. 2014) (denial of rehearing, followed by dissent from denial by Alcala, J.,
    joined by Johnson and Cochran, JJ.).
    21
    supplemented whenever justice requires, on whatever reasonable terms the court
    may prescribe.” TEX. R. APP. P. 38.7. We therefore consider whether justice
    requires us to address the constitutional claims in Wilson’s supplemental briefing
    even though she did not raise them until the case was on rehearing in the Court of
    Criminal Appeals. We conclude that well-established error preservation rules
    requiring that such complaints be made both in the trial court and in the initial
    briefing on appeal preclude our consideration of these arguments on remand.
    A.     Facial challenge
    First, the Texas Court of Criminal Appeals has held that an appellant may
    not raise a facial challenge to the constitutionality of a statute for the first time on
    appeal. 
    Karenev, 281 S.W.3d at 434
    . The Court of Criminal Appeals premised its
    holding in Karenev on the doctrine that “[s]tatutes are presumed to be
    constitutional until it is determined otherwise” and “[t]he State and the trial court
    should not be required to anticipate that a statute may later be held to be
    unconstitutional.” 
    Id. Wilson concedes
    that she did not assert her facial First Amendment
    challenge in the trial court. But she contends that the rationale that Karenev
    applies to the State and the trial court should also apply to her—namely, that she
    should not be required to have anticipated that the Court of Criminal Appeals
    would re-interpret the telephone harassment statute in a way that arguably gives
    22
    rise to the constitutional infirmity that she asserts. She claims that, as a result of
    the Court’s disavowal of its opinion in Scott, in which it had offered a definition
    for the statute’s use of the term “repeated,” it is now impossible to know what
    timing, frequency, and content of calls will make the caller subject to criminal
    prosecution.
    But any constitutional infirmity would lie with the statute as written at the
    time of Wilson’s offense, and the members of the high court disagreed as to the
    importance of the disavowed definition from Scott, with the majority concluding
    that it did not shed light on the statutory elements of criminal telephone
    harassment. Compare 
    Wilson, 448 S.W.3d at 422
    (majority opinion) (finding Scott
    “neither controlling nor persuasive” and describing its definition of “repeated” as
    ambiguous, inartful, and confusing) with 
    id. at 427
    (Cochran, J., joined by Johnson
    and Alcala, JJ., concurring) (taking issue with majority’s rejection of discussion
    “repeated in Scott” and opining that majority’s “new definition clearly invites a
    vagueness and overbreadth challenge to the statute”).
    Further, Wilson declined to advance a facial challenge to the telephone
    harassment statute’s constitutionality in the trial court because, she contends, it
    would have been futile. Futility does not excuse the requirement that a party must
    raise a constitutional challenge to a statute in the trial court to preserve it for
    appellate review. See Sanchez v. State, 
    120 S.W.3d 359
    , 365–67 (Tex. Crim. App.
    23
    2003); Schuster v. State, 
    435 S.W.3d 362
    , 364–65 (Tex. App.—Houston [1st Dist.]
    2014, no pet.). Accordingly, we hold that Wilson waived her facial challenge and
    thus decline to consider it, because it was first raised in supplemental briefing on
    remand.
    B.     As-applied challenge
    Second, with respect to her as-applied challenge, Wilson could have
    presented her claim on direct appeal to this court. After the State presented its case
    in the trial court, Wilson moved to dismiss the charge against her, contending that
    the statute, as applied in the case against her, violated her First Amendment rights.
    The trial court denied the motion. Wilson did not address this preserved challenge
    in her principal brief to this Court. As a result, we have no basis for finding that
    justice requires consideration of this argument now and decline to consider it.
    Conclusion
    We affirm the judgment of the trial court.
    Jane Bland
    Justice
    Panel consists of Chief Justice Radack and Justices Bland and Huddle.
    Do not publish. TEX. R. APP. P. 47.2(b).
    24