How To Beat A Harassment Charge In Texas: A Former Prosecutor Explains How! (2022)


If you have been arrested, charged or are facing criminal investigation for the crime of harassment in Fort Worth or a surrounding city in Tarrant County, Texas, you should call The Hampton Criminal Defense Attorneys, PLLC now to determine what your legal rights and options are under Texas law.

Upon first glance, it may appear that the crime of harassment is not a serious concern. However, because it is an arrestable offense under Texas law, facing allegations of harassment will lead to a criminal arrest, bonding out of jail and a series of court dates to determine if you will receive a conviction that will remain permanently on your criminal record.

If you are a first-time offender, receiving a conviction for harassment can have serious and long-term consequences on your future. For instance, many employers view a harassment conviction as a sign that you are unstable and untrustworthy. In fact, having a criminal conviction on your record for anything more than a traffic violation will limit future employment opportunities. As such, it is critical that your Fort Worth criminal defense attorney has a proven track record of resolving harassment cases in a favorable manner that provides you an opportunity to have your criminal record cleared.

What Qualifies As A Harassment Charge In Texas?

Harassment charges usually arise when an alleged victim receives some form of communication from the accused (in-person, phone, email, text) that annoys or alarms them to the point of calling the police. The biggest challenge for the police will involve proving that you were the person that made the communication and that you acted with criminal intent.

For example: many times criminal intent can be inferred based upon the nature of the contact. We have seen harassment cases where the accused has made hundreds of calls repeatedly to the alleged victim over a period of a few days. The more times the accused calls someone, the easier it is for the prosecution to infer criminal intent to annoy, alarm or abuse the alleged victim. Alternatively, if a call is made by the accused threatening the alleged victim with bodily injury or against a family member, the police can take this conduct and proceed forward with a harassment charge (if the call was made to harass or annoy), or a terroristic threat charge (if it placed the alleged victim in fear of the action).

Some of the more common examples of how citizens of Fort Worth, Texas and Tarrant County, Texas receive a criminal harassment charge are as follows: communicating with someone with intent of annoying, scaring or embarrassing them, requesting or describing sex acts with intent to annoy, threatening the alleged victim or their family, making false reports of death, calling repeatedly, etc.

Under Texas Penal Code, Section 42.07, the Tarrant County District Attorney’s Office must prove the following elements of harassment beyond a reasonable doubt:

A person commits an offense of harassment if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he:

  • Initiates communication by telephone, in writing, or by electronic communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene;
  • Threatens, by telephone, in writing, or by electronic communication, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of his family or household, or his property;
  • Conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury;
  • 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;
  • Makes a telephone call and intentionally fails to hang up or disengage the connection;
  • Knowingly permits a telephone under the person’s control to be used by another to commit an offense under this section; or
    sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

Texas law is specific in defining whether a communication is obscene.

According to Texas Penal Code, Section 42.07(b)(3), “Obscene” means containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function.

One of the most common scenarios where a citizen of Tarrant County is charged with harassment is when someone claims they are being harassed by text messages.

Can Electronic Communications Be Considered Harassment In Texas?

Due to the increased use of smart phones, electronic devices and internet messaging apps, harassment charges have become a common criminal charge in Tarrant County, Texas. However, there if have been some recent changes to how the Texas criminal courts and appellate courts treat electronic communications compared to other communications.

The most common form of electronic communications that have been used to establish harassment charges have been social media messages, posts, messaging through applications or text messages. Until recently, sending an alleged victim repeated messages through an electronic communication method could be used as probable cause for an arrest – IF it can be shown that the messages were sent with the criminal intent to annoy or alarm the alleged victim.

However, recent Texas Court of Appeals decisions have limited the use of electronic communications for use as a basis for a harassment or stalking charge. In fact, recent Texas Appellate Court decisions have determined that electronic communication are protected speech under the Constitution. The United States Constitution has First Amendment provisions protecting the limitation of free speech.

The court seemed to focus on the fact that speech received from electronic means can be limited by the recipient. If you are receiving text messages, you can block the sender; if you are receiving messages through an application or an email message, you can block their email, unfriend them or cancel the application. Specifically, the court stated that electronic messages are protected speech under the First Amendment UNLESS they are threatening messages.

How Does Texas Harassment Law Define “Threatening” Communication?

First, it is critical to remember that the State of Texas always maintains the burden to prove beyond a reasonable doubt that any communication was “threatening.” Failure to meet this burden of proof by the government, will result in not guilty verdict at a criminal jury trial.

In order for the prosecution to meet their burden, they would have to look at the context of the messages to determine if they are overtly threatening. A message that is vague and ambiguous as to its threat, will pose a challenge for the prosecutor to prove their case. Most threats, in order to be proven in trial, will need to be specific to the alleged victim and specific enough to make it clear the threat was credible as to time and place.

This is precisely why you need the best team of Fort Worth harassment lawyers analyzing each electronic communication to determine if the State of Texas can meet its burden of proof against you in trial.

It is important to understand that the decision to arrest someone for harassment can be based upon the subjective opinion of the alleged victim. It is critical that the facts of your case be investigated by an experienced and aggressive criminal attorney so that an objective determination as to whether the elements of harassment can be proven beyond a reasonable doubt.

Can You Go To Jail For Harassment In Texas?

If you are a first-time offender, the crime of harassment is classified as a Class B misdemeanor, punishable by a term in the Tarrant County jail of up to 180 days and up to a $2,000 fine.

If the State of Texas can prove beyond a reasonable doubt that you have a previous conviction for harassment, the charge will be classified as a Class A misdemeanor, punishable by a term in the Tarrant County jail of up to 1 year and up to a $4,000 fine.

Legal Defenses To Harassment In Texas?

Facing a charge of harassment is a serious matter that requires you to take some immediate steps to protect yourself. First, you need to find a team of criminal defense attorneys that have a proven track record of successfully defending citizens charged with harassment. Secondly, you must educate yourself on Texas harassment law and the possible defenses available to you in court.

The Conduct Was 1st Amendment Protected Speech

As mentioned earlier, if your detective is relying primarily on communication that was sent electronically by emails, text messages, Facebook messages or other messaging apps, there is a strong argument that this communication is protected speech under court precedent. Amazingly, there are many detectives who do not keep up with current Texas law and make arrest decisions based upon old law.

However, it is imperative that your criminal attorney be aware of this defense and if you have not yet been arrested, your lawyer can educate the detective on the status of the law to see if a warrant can be stopped or recalled. If you have already been arrested and charged with the crime of harassment, an experienced and aggressive criminal defense lawyer can take this change in the law and demand that a dismissal of all charges be provided.

Lack of Criminal Intent

What if communication was sent to someone that was reasonably annoying or alarming but there was no criminal intent? In other words, what if the communication took place for some other purpose other than the intent to annoy or alarm?

We have seen this situation arise very frequently with divorced parents communicating over kids. We have had clients charged with harassment for text messages sent to their wife regarding their kids. For example, we had a client that had been told by his ex-wife that their son had been seriously injured and taken to the hospital. All communications then stopped for a period of 8 hours. The client was worried about his son and began calling and messaging and doing all that he could do determine what the status of his son was medically. His ex-wife used these frantic messages as a basis to claim to the investigator that her ex-husband was harassing her. We later learned that the alleged injury to the child never occurred and it used as a pretext to get our client into legal trouble.

If the prosecutor is unable to prove beyond a reasonable doubt that the communication was sent with INTENT to annoy or alarm, your harassment charge will result in a not guilty at a jury trial.

The Communication Was Not Reasonably Annoying Or Alarming

In order of the State of Texas to be successful in convicting you of harassment, they must show that the communication was actually “annoying” or “alarming.” The very nature of the question shows that it is a very opinionated conclusion that reasonable minds can differ upon. If the communication being analyzed appears arguably benign and lacks aggression, the prosecutor will have more doubt regarding the strength of their case.

Every doubt that can be established by your criminal attorney provides a foothold for further negotiations for a possible dismissal of the case.

At The Hampton Criminal Defense Attorneys, PLLC, we offer a team of former prosecutors with over 85 years of criminal law experience and over 550 criminal jury trials in Tarrant County and other North Texas Courts. In addition to ensuring you spend no time in jail, the number one priority of your criminal lawyer should be to fight to ensure this allegation does not remain on your criminal record. The Hampton Criminal Defense Attorneys, PLLC is committed to fighting to protect your freedom and your future.

Call The Hampton Criminal Defense Attorneys, PLLC now for a free consultation and an opportunity to speak to me about the facts of your case and the options you have under Texas law. Call Jeff Hampton at The Hampton Criminal Defense Attorneys, PLLC at 817-826-9885.