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Click here for the full text of this decision FACTS:In March 2003, appellant was charged by information with the offense of telephone harassment under Texas Penal Code �42.07(a)(4). The information alleged that on Oct. 22, 2002, in Williamson County, appellant, “with intent to harass, annoy, alarm, abuse, torment, and embarrass [the complainant], [had] made repeated telephone communications to [her] in a manner reasonabl[y] likely to harass, alarm, abuse, torment, embarrass, and offend [her].” Appellant filed a pretrial motion to quash the information. In his motion, appellant, citing the due process and due course of law clauses of the United States and Texas constitutions, argued that �42.07(a)(4) was “unconstitutionally vague on its face.” In December 2003, the state brought appellant to trial before a petit jury on his plea of not guilty. At the start of the trial, before any evidence had been adduced, appellant urged his motion to quash and argued to the trial court that “the vagueness” of �42.07(a)(4) was “readily apparent.” The trial court denied appellant’s motion to quash. Later, during the course of the guilt stage once during the complainant’s testimony and once after both sides had rested appellant objected again that the language of �42.07(a)(4) was “unconstitutionally vague.” Each time appellant objected, the trial court overruled his objection. The jury subsequently found appellant guilty as charged in the information, and the trial court assessed his punishment at confinement for 10 days and a $250 fine. Appellant’s motion for new trial, in which he again challenged the statute’s unconstitutionality, was later overruled by operation of law. In his motion, appellant, again citing the due process and due course of law clauses of the United States and Texas constitutions, argued that �42.07(a)(4) was “unconstitutional as applied to him in his case.” Although appellant did not use the word “vague” or “vagueness” in his motion for new trial, he did argue that “[n]ow that the evidence has been adduced,” the trial court could “more readily discern the unconstitutionality of the statute” as it had been applied against him. On direct appeal, appellant brought four points of error. In his fourth point, appellant argued that �42.07 was unconstitutionally vague and overbroad. The 3rd Court of Appeals overruled all of appellant’s points of error and affirmed the trial court’s judgment. With respect to appellant’s fourth point of error, the court of appeals held that it “need not consider” whether �42.07(a)(4) had been unconstitutionally applied to appellant because he had “failed to preserve this objection for appellate consideration by raising the issue at trial.” Appellant later filed a petition for discretionary review, which we granted. In his petition, appellant argues that his “as applied” challenges to � 42.07(a)(4) were in fact preserved for appellate review because he “filed and obtained a ruling on his motion for new trial, which specified that he was complaining about the application of the statute under which he [had been] convicted.” HOLDING:The Court of Criminal Appeals (CCA) vacated the court of appeals’ judgment and remanded the case back to the court of appeals, so it could consider appellant’s challenge of the statute as unconstitutionally vague. The CCA first looked at appellant’s motion for new trial to see if it was adequately specific. Although the word “vague” or “vagueness” appeared nowhere in appellant’s motion, the court found that a reasonable trial judge probably would have understood the motion, in context, to be asserting an “unconstitutionally vague as applied” challenge to the statute, since appellant’s consistent complaint throughout trial was that the statute was too vague to be enforceable. The court therefore concluded that appellant’s motion for new trial was specific enough to put the trial court on notice of his “unconstitutionally vague as applied” challenge to �42.07(a)(4). But the court did not find that a reasonable trial judge would have understood appellant’s motion for new trial, even in context, to also be asserting an “unconstitutionally overbroad as applied” challenge to the statute. Neither the word “overbroad” nor the word “overbreadth” appeared in the motion for new trial, and at no point during the trial did appellant make an overbreadth challenge to the statute under which he was being tried. The court therefore concluded that appellant’s motion for new trial was not specific enough to put the trial court on notice of his “unconstitutionally overbroad as applied” challenge to �42.07(a)(4). OPINION:Holcomb, J., delivered the opinion of the court, in which Keller, P.J., and Meyers, Price, Womack, Johnson and Cochran, J.J., joined. Keasler and Hervey, J.J., concurred in the result.

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