Ex parte Leonardo Nuncio (original by judge walker)
Annotate this CaseAppellant Leonardo Nuncio was charged with violating Texas Penal Code section 42.07(a)(1), the obscene harassment statute. Appellant filed a pre-trial application for writ of habeas corpus on the basis that the statute was unconstitutionally vague and overbroad under the First Amendment. The trial court denied Appellant’s habeas corpus application, and the court of appeals affirmed. The court of appeals, accepting the State’s appellate argument that section 42.07(a)(1) restricted obscenity proscribable under the First Amendment, held that the statute was not overbroad. The Texas Court of Criminal Appeals found that section 42.07(a)(1) was a content-based regulation of speech implicating the First Amendment. The Court further found that section 42.07(a)(1) was potentially overbroad by its incorporation of the definition of “obscene” under section 42.07(b)(3). However, the Court concluded Appellant’s overbreadth challenge failed because he did not attempt to make the required showing that a substantial amount of protected speech was affected by the statute, beyond its plainly legitimate sweep. Finally, the Court held that section 42.07(a)(1) was not unconstitutionally vague under the First Amendment. Accordingly, the Court affirmed the court of appeals.
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