LAURA BOWLIN DAVIDSON v. THE STATE OF TEXAS (2026)

CONCURRING OPINION

Appellant was convicted of stalking. See Tex. Penal Code § 42.072. Relying heavily on this Court's decision in Owens v. State, 728 S.W.3d 155 (Tex. Crim. App. 2025), Appellant argued that the stalking statute was unconstitutional as applied to her. The court of appeals rejected Appellant's contention and affirmed her conviction. Davidson v. State, No. 12-24-00360-CR, 2025 WL 3550581, at *14 (Tex. App.—Tyler Dec. 10, 2025). The Court today correctly refuses Appellant's petition for discretionary review because Owens is readily distinguishable from the facts of Appellant's case.

With that said, Owens was wrong from the get-go. In the appropriate case, I would grant review to consider whether Owens was correctly decided. For the following reasons, I join the Court's decision to refuse review.

I. Applicable Law

The First Amendment prohibits “abridging the freedom of speech.” U.S. Const. amend. I. It applies to the states via the Fourteenth Amendment. See Ex parte Thompson, 442 S.W.3d 325, 334 (Tex. Crim. App. 2014). Under the First Amendment, the government “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). But “[a] statute or regulation proscribing non-speech conduct does not suddenly become subject to First Amendment scrutiny because the actor accompanies his non-speech conduct with speech.” Ex parte Sanders, 663 S.W.3d 197, 215 (Tex. Crim. App. 2022); see also Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. (FAIR), 547 U.S. 47, 65–68 (2006) (concluding that a law regulating conduct that is not inherently expressive did not abridge the First Amendment). “[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Cox v. Louisiana, 379 U.S. 559, 563 (1965). The First Amendment is implicated when conduct that is not inherently expressive “possesses sufficient communicative elements to bring the First Amendment into play.” Texas v. Johnson, 491 U.S. 397, 404 (1989). Under that test, conduct implicates the First Amendment if (1) there was an intent to convey a particularized message, and (2) the likelihood was great that the message would be understood by those who viewed it. Id.; see also Thompson, 442 S.W.3d at 334.

For a First Amendment challenge, a law that does not implicate the First Amendment is upheld as constitutional if it satisfies rational basis review. Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 358–62 (2009) (as-applied challenge); see also Ex parte Barton, 662 S.W.3d 876, 884 (Tex. Crim. App. 2022) (facial challenge). “The default, general rule or standard is that state action is presumed to be valid and will be upheld if it is but rationally related to a legitimate state interest.” Estes v. State, 546 S.W.3d 691, 697 (Tex. Crim. App. 2018) (cleaned up).

If the First Amendment applies, then we must determine “[w]hether the provision is content-neutral or content-based.” Martinez v. State, 323 S.W.3d 493, 504–05 (Tex. Crim. App. 2010). That determination “dictates the level of scrutiny” applied. Id. The “most exacting scrutiny”—strict scrutiny—applies “to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.” Turner Broad. Sys. v. FCC, 512 U.S. 622, 642 (1994). “To satisfy strict scrutiny, a law that regulates speech must be (1) necessary to serve a (2) compelling state interest and (3) narrowly drawn.” Ex parte Lo, 424 S.W.3d 10, 15 (Tex. Crim. App. 2013) (citing Sable Commc'ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989)).

On the other hand, content-neutral restrictions are subject to intermediate scrutiny and need only be “narrowly tailored to serve a significant governmental interest.” McCullen v. Coakley, 573 U.S. 464, 486 (2014) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 796 (1989)). “The requirement of narrow tailoring is satisfied if the regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation.” Thompson, 442 S.W.3d at 345. “The regulation is considered ‘narrowly tailored’ for intermediate-scrutiny purposes, ‘[s]o long as the means chosen are not substantially broader than necessary to achieve the government's interest.’ ” Id. (quoting Ward, 491 U.S. at 800).

A law is ordinarily content-based if it distinguishes “favored speech from disfavored speech on the basis of the ideas or views expressed.” City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 596 U.S. 61, 69 (2022). When “it is necessary to look at the content of the speech in question to decide if the speaker violated the law, then the regulation is content-based.” Lo, 424 S.W.3d at 15 n.12. “For example, a statute that prohibits an adult from communicating with a minor via the internet is content-neutral, but a statute that prohibits an adult from communicating with a minor via the internet in a sexually explicit manner is content-based.” Thompson, 442 S.W.3d at 345.

II. Owens v. State

a. Factual Background

For eleven weeks in 2016, Dr. Lindsay Bira was Owens's psychologist as he sought therapy following a divorce. Owens then terminated their therapist–client relationship. Nearly a year-and-a-half later, in May 2018, Owens e-mailed Bira. The e-mail's subject line was: “My life is just as hopeless as ever.” That e-mail was just the beginning of what would follow. Over the next three months, Owens would send an additional thirty-three communications to Bira.

The communications Owens sent included statements disparaging Bira's personal life and confirming that he knew intimate details about her (including her birthday, phone number, and home address), accusations of sexual assault, threats to report her to the Texas Board of Examiners of Psychologists, and demands for a refund of $1,785. Many of the communications were sent and received after Owens was informed that his communications were being forwarded to law enforcement. Several communications were made after Bira took steps to try to avoid Owens's communications, including blocking social media accounts under his name, sending him cease and desist letters, and filtering her e-mail. Owens circumvented one of these measures by creating a Facebook account under an alias. Bira testified that Owens's communications made her feel harassed, abused, and worried about her safety. She eventually left Texas because of the communications.

Owens was charged with and convicted of violating the electronic harassment statute codified in Section 42.07 of the Texas Penal Code. The court of appeals affirmed. Owens v. State, No. 07-23-00115-CR, 2024 WL 81583, at *7 (Tex. App.—Amarillo Jan. 5, 2024) (mem. op., not designated for publication). This Court granted review on its own motion of the following ground: “Was Texas Penal Code section 42.07(a)(7) unconstitutional as applied to [Owens]?”

A majority of this Court reversed. Owens v. State, 728 S.W.3d 155, 169 (Tex. Crim. App. 2025). This Court concluded:

The court of appeals erred in categorizing [Owens]’s messages as speech integral to criminal conduct outside the protections of the First Amendment. As applied to [Owens]’s case, the electronic harassment statute was a content-based restriction on his speech, and the State failed to show that the statute was narrowly tailored to serve a compelling State interest. The statute's application to [Owens]’s case was unconstitutional.

Id.

III. Owens was wrongly decided

Owens was flawed for three reasons. First, Owens was punished for conduct, not his speech. Second, Owens did not intend to convey a message over the course of sending thirty-four electronic communications, so his conduct was not inherently expressive. See FAIR, 547 U.S. at 65–66; cf. id. at 66 (“If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into ‘speech’ simply by talking about it.”). Third, even if Owens's conduct was expressive conduct, the State's case against Owens survived the intermediate-scrutiny standard.

a. Owens was punished his conduct, not his speech

To start, the Court erred by concluding that the State prosecuted Owens for the content of his speech rather than his conduct. Owens's prosecution was driven by the number of communications Owens sent to Bira, not by the substance of those communications or that he communicated at all. The State charged Owens by criminal information after he sent Bira thirty-four communications over the course of three months. If the content of the thirty-four communications drove Owens's prosecution, then it is curious why the State would have waited, and let Bira be inundated with disturbing communications, before it charged Owens and put a stop to his electronic harassment. Had the State focused on the content of what Owens said, it could have charged him after he sent the second communication. See Appendix A, infra (for example, referring to Bira as a “prostitute” who worked as “eye candy” in the “VIP” section of a club). Or the State could have charged Owens after he sent e-mails in which he claimed that Bira abused, raped, and exploited him. In one e-mail, Owens said, “You abused me, but I don't have enough evidence to convince your peers, who obviously are on your side unless it is something that reflects badly on the profession as a whole. You raped me, and I will get no justice.” But the State waited. The State's decision to delay charging Owens evidenced an intent to punish him for what he did, not for what he said.

It was immaterial whether Owens harassed Bira by sending thirty-four love letters or thirty-four haikus—the mere act of sending numerous communications allowed the State to prosecute him for harassing her. The Court concluded, with insufficient analysis, that Owens was prosecuted because of the content of the communications he sent. See Owens, 728 S.W.3d at 167. The Court asserted that Owens “would have avoided prosecution if he had said ‘good morning’ instead of accusing [Bira] of raping him.” Id. This conclusion was not grounded in the record and also overlooked the thirty-three other communications that Owens sent. What Owens said within the communications was probative of whether he sent them with an intent to harass, annoy, alarm, abuse, torment, or embarrass Bira, see Tex. Penal Code § 42.07(a)(2), and it is permissible to view the content of the communications to determine whether Owens's conduct fell within the purview of Texas's electronic harassment statute, Hill v. Colorado, 530 U.S. 703, 720–22 (2000). The State neither discriminated against nor distinguished among the content of the different communications sent by Owens. No single communication anchored the State's case. The State sought to convict Owens for electronically harassing Bira because of his conduct, independent of what he said within any of the thirty-four communications. The State punished Owens for his conduct, which does not abridge his First Amendment rights. Cf. Cox, 379 U.S. at 563.

b. Even if Owens was not punished for his conduct, the First Amendment did not apply

Assuming that the Court was correct—it was not—in concluding that Owens was punished for his speech, Owens's conduct did not implicate the First Amendment. The Supreme Court has consistently rejected the invitation to label conduct as speech “whenever the person engaging in conduct intends thereby to express an idea.” U. S. v. O'Brien, 391 U.S. 367, 376 (1968); see also Spence v. Washington, 418 U.S. 405, 409 (1974) (same). To determine whether a person's conduct “possesses sufficient communicative elements to bring the First Amendment into play,” Johnson, 491 U.S. at 404, we consider “the nature of [A]ppellant's activity, combined with the factual context and environment in which it was undertaken,” Spence, 418 U.S. at 409–10. Two inquiries are particularly helpful in determining whether the First Amendment is implicated: “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.’ ” Johnson, 491 U.S. at 404 (quoting Spence, 418 U.S. at 410–11). For the particularized message inquiry, the Supreme Court has clarified that “a narrow, succinctly articulable message is not” required. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995). The First Amendment does not require “an exact message as the exclusive subject matter of the speech.” Id. at 569–70. But even under the most liberal of standards, the speaker must intend to communicate something. See id. at 569 (stating that if the “particularized message” wording is interpreted too narrowly, then expressive protections “would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll”). In Johnson, the Supreme Court provided two questions to guide this analysis: (1) did the actor “inten[d] to convey a particularized message”; and (2) did the circumstances present a “great” likelihood “that the message would be understood by those who viewed it.” Id. (quoting Spence, 418 U.S. at 410–11). The answers to both inquiries indicated that Owens's conduct fell outside the First Amendment's protections.

First, it was puzzling to conclude that Owens intended to convey some type of message by sending the thirty-four electronic communications. Owens first emailed Bira about one-and-a-half years after he terminated their therapist–client relationship. The e-mail said:

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.

Owens's first communication concerned their therapist–client relationship and his mental health. But the next thirty-three communications did not repeat that theme. By the second e-mail, Owens expressed his opinion that he “wouldn't be surprised if [Bira] w[as] an actual prostitute.” Owens also expressed his belief that Bira “gave up” on him “within the first 10 minutes of [their] second to last appointment.” On multiple occasions, Owens demanded money from Bira that he believed she owed him in relation to their therapy sessions. And throughout the thirty-four communications, Owens repeatedly accused Bira of exploiting, abusing, and raping him.

It is unclear what message, if any, Owens intended to convey in the thirty-four communications he sent Bira. Contrary to defense counsel's closing argument, Owens was not reaching out due to him being upset or wanting a refund. Owens accused Bira of committing professional misconduct by violating confidentiality and sexually assaulting him during therapy. Even if we liberally applied Hurley such that Owens's conduct could communicate some message, the message in his campaign of harassment was unlike the “unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.” 515 U.S. at 569. Similarly, Owens's conduct was unlike symbolically “burn[ing] an American flag as part ․ of a political demonstration.” Johnson, 491 U.S. at 406. This is so because Owens's conduct did not exhibit an intent to convey a particularized message.

Second, assuming that Owens intended to convey a message, it is unlikely that Bira would have understood it. At the time Owens sent all thirty-four “statements,” it would have been difficult for anyone, let alone Bira, to interpret the message as anything “more than bizarre behavior.” See Spence, 418 U.S. at 410. Owens's bizarre behavior was not protected as symbolic speech. See id. Such harassing conduct did not convey an understandable message. Bira, the recipient of Owens's communications, had no way to discern his intended message based solely on his conduct. Thus, Owens's conduct lacked the minimum sufficient communicative elements to warrant protection under the First Amendment.

Because the State sought to punish Owens for non-expressive conduct, Owens's conviction stood unless it failed rational basis review. Under the rational basis test, a law is upheld if it is “rationally related to a legitimate state interest.” Estes, 546 S.W.3d at 697. The State's decision to prosecute Owens served a legitimate governmental interest—to punish Owens for violating Bira's privacy interest. Barton, 662 S.W.3d at 885. Using the appropriate standard of review—rational basis—Section 42.07(a)(7) was not unconstitutionally applied to Owens. On that basis, this Court should have affirmed Owens's conviction.

c. Even if intermediate scrutiny applied, the State met the standard

Assuming, for argument's sake, that one or more of Owens's communications to Bira were “protected speech,” then intermediate scrutiny, instead of strict scrutiny, would have applied. The electronic harassment statute, as applied to Owens, was a content-neutral restriction on his speech. At best, Section 47.07(a)(7) incidentally restricted Owens's speech. A content-neutral restriction is subject to intermediate scrutiny and need only be “narrowly tailored to serve a significant governmental interest.” McCullen, 573 U.S. at 486. The Supreme Court's test articulated in O'Brien allows these types of regulations when the regulation in question: (1) “is within the constitutional power of the Government;” (2) “furthers an important or substantial government interest;” (3) “the governmental interest is unrelated to the suppression of free expression;” and (4) “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” 391 U.S. at 376–77 (holding that this test applies “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct”); see Turner Broad. Sys., 512 U.S. at 661–68 (applying O'Brien); see also Thompson, 442 S.W.3d at 344–45 (concluding that O'Brien did not apply because the “activity proscribed by the statutory provision at issue is inherently expressive”).

First, the Legislature is vested with the power “to define as criminal conduct whatever acts it sees fit, so long as such acts bear some reasonable relation to the needs of society and the safety and general welfare of the public.” Crawley v. State, 513 S.W.2d 62, 66 (Tex. Crim. App. 1974). This power, however, is limited “by the Due Process Clause of the federal constitution and the Due Course of Law provision of the Texas Constitution.” Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008). There is no evidence that the Legislature exceeded its power by enacting or punishing Owens for violating Section 42.07(a)(7). Consequently, the State was entitled to punish Owens for committing this criminal offense.

Second, Section 42.07(a)(7) furthers an important and substantial government interest. The State has an interest in protecting its citizens from the abuse or torment of repeated communications independent of the content of those communications. Section 42.07(a)(7) achieves this purpose by punishing persons who send such communications. That punishment also serves as a deterrent, which may successfully stop others from sending such communications. Moreover, Owens “impose[d] his ideas upon a captive audience,” Spence, 418 U.S. at 412, and Bira could not easily avoid receiving the thirty-four communications. While the record is unclear about whether Owens received them, Bira, through her own attorney and the San Antonio Police Department, sent two cease and desist letters to Owens. By advising victims like Bira to “delete the messages without reading them or block[ ] [the harasser's] email address, phone number, and social media accounts,” Owens, 728 S.W.3d at 167, the Court hindered the State's ability to prosecute future electronic harassment cases and forced victims to be captives of harassing conduct inside the confines of their personal sanctuary. Cohen v. California, 403 U.S. 15, 21 (1971) (“While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue, we have at the same time consistently stressed that ‘we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech.’ ” (citations omitted)).

Third, the government interest previously discussed is unrelated to the suppression of free expression. The State did not prosecute Owens for what he said within the thirty-four communications. The State used the content of those communications to demonstrate Owens's mens rea. But that limited relevance does not transform the State's case against Owens into one that violates the First Amendment.

Fourth, the incidental restrictions on the First Amendment are no greater than needed to further the government's interest. Owens was convicted for repeatedly sending communications. Section 42.07(a)(7), as applied to Owens, restricted no more speech than necessary to further the government's interest in stopping persons who harass others. And Section 42.07(a)(7) requires the State to prove the culpable mental state of “intent,” which “reduces the prospect of chilling fully protected expression.” Cf. Counterman v. Colorado, 600 U.S. 66, 75 (2023).

As applied to Owens, Section 42.07(a)(7) did not violate the First Amendment: The Legislature crafted a statute that criminalizes repeated communications and fashioned a specific intent requirement, which decreases the likelihood that protected speech will be chilled. Owens's conviction was valid under an intermediate scrutiny analysis. This Court erred to hold otherwise.

d. Conclusion

For all those reasons, the Court's decision in Owens was misguided and wrong from the outset. In the appropriate case, I would grant review to abandon that decision.

IV. Appellant's case is readily distinguishable

All of that prior discussion is important because without Owens, Appellant lacks support for her “as applied” constitutional challenge. With that said, even if Owens was correctly decided—it was not—Owens is distinguishable from the facts of Appellant's case.

a. The facts of Appellant's case

Appellant, a locally known animal activist, believed that Corey Hicks's treatment of his dogs—keeping them in his yard all year round—was inhumane. During the summer of 2020, Hicks and his wife became aware that their dogs were the subject of Facebook posts by Appellant. They learned that Appellant was circling their house, parking and taking photos and videos, posting their address, calling the police to complain, and encouraging others on Facebook to do all of the same.

In February 2021, during a winter storm, police received about twenty calls, some by Appellant, about Hicks's dogs being outside without adequate shelter. Police Chief Clayton Smith visited Hicks's residence around seven times between February 14 and 19 and concluded that the dogs had adequate shelter and were not freezing or in distress. Hicks testified that on one occasion, eight to ten officers were present and surrounded his home. Smith discussed the issue with the D.A.’s office who advised him that criminal charges against Hicks were not warranted. Smith advised Appellant of the same. Nonetheless, Appellant's complaints about the dogs continued.

Hicks eventually complained to police about being harassed by Appellant. Police investigated and learned that Appellant was driving by Hicks's home and taking pictures and that Appellant had made multiple public posts on Facebook about Hicks's dogs, including photos of Hicks's home and dogs, posted Hicks's address, and encouraged people to share her posts and to call police and complain.

On February 19, 2021, Hicks's dogs were stolen. Police arrested the perpetrator. Appellant denied involvement but later posted a photo of one of Hicks's dogs and stated that the dog and its companions had been “rescued” by someone during the storm and that she was proud of whomever it was. Smith repeatedly told Appellant that no laws were being broken and to leave Hicks alone. Hicks acquired new dogs in early 2022 and soon after became aware of Facebook posts about those dogs.

Appellant's pattern of behavior resumed: she continued to share her opinion about Hicks and to encourage others to check on the dogs and to report Hicks to police. She also sent multiple direct messages to individual Facebook users about Hicks. There was evidence that Appellant's posts about Hicks were shared thousands of times. At one point, Hicks became aware of a Halloween display in Appellant's yard with “RIP Hicks rots here” on a tombstone next to what appeared to be a body wrapped in burlap.¹

Hicks testified that he was employed as county extension agent. He testified that various people called his bosses regarding his dogs, which jeopardized his job. Hicks also testified that he and his family feared for their lives. Hicks's wife testified that she felt scared, threatened, and harassed.

Appellant was charged with stalking for engaging in conduct between February 2021 and February 2022, including posting and sending repeated public and private messages on Facebook about Hicks and “driving by his house and taking pictures and/or video of his house and encouraging others to drive by his house, calling law enforcement and making repeated complaints about Corey Hicks and encouraging others to make repeated calls to law enforcement and make repeated complaints.”

b. Analysis

Assuming, arguendo, Owens’s continued viability, that case is readily distinguishable from Appellant's. Even after she was warned by Smith to leave Hicks alone, Appellant continued to “(1) drive by Hicks's home while recording video and taking photographs, (2) disseminate Hicks's home address to others, (3) encourage others to drive by Hicks's home, (4) contact law enforcement regarding Hicks's dogs, and (5) encourage others to contact law enforcement.” Davidson, 2025 WL 3550581, at *14. Moreover, the conduct in this case was a “substantial” invasion into Hicks's privacy rights “in an essentially intolerable manner.” Owens, 728 S.W.3d at 167 (citing Cohen, 403 U.S. at 21). And that is all before the tombstone. Appellant's conduct here—and the persistent and repeated nature of the conduct over time—plus the fact that it was targeted at Hicks's home, personal property, and livelihood and sought to increase the amount of interactions by recruiting and involving others, distinguishes the overwhelmingly conduct-based prosecution in this case from the closer-call conduct that this Court found in Owens. For those reasons, the court of appeals correctly concluded that the stalking statute was not unconstitutional “as applied” to Appellant.

V. Conclusion

With these thoughts, I join the Court's decision to refuse review.

Appendix A

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Appendix B

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FOOTNOTES

1.   See Appendix B, infra.

Finley, J., filed a concurring opinion.