White, Michael Alan v. State

Opinion issued May 25, 2006 In The Court of Appeals For The First District of Texas NO. 01-05-00514-CR MICHAEL ALAN WHITE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Court at Law No. 2 Fort Bend County, Texas Trial Court Cause No. 110,178-A MEMORANDUM OPINION Michael Alan White, appellant, was charged by information with the misdemeanor offense of telephone harassment. A jury found appellant guilty, and the State and appellant agreed on a punishment of 180 days’ confinement, whereby the trial court suspended the sentence and placed appellant on community supervision for 15 months, with a $300.00 fine. In two points of error, appellant asserts that the evidence is legally and factually insufficient to support his conviction. We affirm. Background Appellant married Romona Douglas in September 2000 and divorced her in October 2001. The divorce decree granted appellant standard visitation rights for the only child of the marriage, by allowing appellant to visit the child every Wednesday and on the first, third, and fifth weekend of every month. Because appellant served in the military and did not always have the first, third or fifth weekend available, appellant and Douglas attempted to work visitation around appellant’s military schedule by allowing visitation on unscheduled weekends. If appellant had a free weekend, he would call Douglas to schedule a visitation. Douglas first began experiencing problems with appellant’s multiple phone calls on December 23 and 24, 2003. During this time, appellant had custody of the child and was visiting his ailing father. Although the reasons for appellant’s calling Douglas are disputed, phone records indicate that he called Douglas 54 times on the 23rd from 10:08 pm to 11:59 pm and that he called 117 times on the 24th. Douglas did not contact police until January 13, 2004, however, when appellant called her approximately 20 times. After Douglas spoke with appellant 3-4 times that day and asked him not to call, she blocked his telephone number. But, appellant continued to call her by using either a calling card or an 800 service which was not blocked. When Douglas eventually contacted police to report appellant’s behavior, she was told that because the two had a child together she would have to resort to family court to solve the problem. On February 6th, from 12:22 pm to 12:45 pm, appellant called Douglas on her work or cell phone 10 times. Later that night, appellant started calling at 9:55 pm and called 42 times over the next hour. Appellant testified that he had called to arrange visitation with his child because it was his weekend under the divorce decree. On February 12th, when appellant called Douglas 18 more times, Douglas contacted the police again and explained that appellant’s phone calls were annoying. When the officer who responded to the call phoned appellant, appellant hung up on him. Additional dates of significance include January 30th and 31st and February 23rd, when appellant called Douglas 37 times, 15 times, and 16 times respectively. Legal Sufficiency In his first point of error, appellant contends the evidence was legally insufficient to support his conviction. Appellant argues that he did not have the intent to harass, annoy, or alarm Douglas. Appellate courts review a legal sufficiency challenge by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the criminal offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Although our analysis considers all evidence presented at trial, we may not reweigh the evidence and substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562. The jury, as trier of fact, is the sole judge of the credibility of the witnesses and may believe or disbelieve all or any part of a witness’s testimony. Reece v. State, 878 S.W.2d 320, 325 (Tex. App.—Houston [1st Dist.] 1994, no pet.). A person commits the offense of harassment “if, with the intent to harass, annoy, alarm, abuse, torment, or embarrass another, he: . . . (4) 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.” Tex. Pen. Code Ann. § 42.07(a)(4) (Vernon 2003). A person intends his conduct when it is his conscious objective or desire to cause the result. Id. § 6.03(a). Appellant argues that section 42.07(a)(4) of the Penal Code was primarily designed to criminalize obscene or vulgar phone calls, and that this case does not involve such phone calls. Appellant relies on Campbell v. State which states that “the gravamen of the offense of harassment under Sec. 42.07 . . . is the communication to a victim in vulgar, profane, obscene or indecent language or in a coarse manner with the intent to annoy and alarm the victim.” 653 S.W.2d 23, 26 (Tex. Crim. App. 1983). Appellant’s reliance is misplaced. In Campbell, the court addressed whether the charging instrument sufficiently charged the offense of harassment and discussed the portion of Section 42.07 that criminalizes the actual communication of vulgar, profane, or obscene language. Id. at 24–25. The court did not address the portion of Section 42.07 that criminalizes the act of placing multiple phone calls with the intent to harass or annoy. In the present case, because appellant was charged with harassment by causing another’s phone to ring repeatedly and not with harassment for making vulgar, profane, or obscene phone calls, Campbell’s construction is not controlling. Section 42.07(a)(4), at issue here, requires only repeated phone calls made with the intent to harass, annoy, alarm, abuse, torment, or embarrass another; it does not require vulgar, obscene or profane communications. Tex. Pen. Code Ann. § 42.07(a)(4) (Vernon 2003). This Court has stated that the act of making repeated telephone calls is not, by its nature, criminal. Blount v. State, 961 S.W.2d 282, 284 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (citing Ford v. State, 870 S.W.2d 155, 160 (Tex. App.—San Antonio 1993, pet. ref’d)). The act is criminalized because the actor wants to cause the result of harassing or annoying the victim. Id. Based on the statutory language, a defendant is criminally responsible for telephone harassment only when he intends the result of his actions. Id. A defendant’s intent may be inferred from circumstantial evidence, such as his words, actions, and conduct. Id. Appellant contends his intent was to arrange visitation with his child, not to harass or annoy Douglas. Although appellant’s intent for some of the phone calls may have been to arrange visitation, the evidence shows that, in so desiring to arrange visitation, he incessantly called Douglas on February 6th, sometimes at a rate of two to three calls per minute. Of the 43 phone calls from 9:55 pm to 10:55 pm, Douglas testified that she spoke with appellant at least 4-5 times and asked him not to call, but he persisted. The substance of appellant’s calls also suggests that he intended to harass or annoy Douglas. She testified that appellant’s calls did not concern the child, but were about her personal character. Even assuming that appellant called only about picking up the child because February 6th was appellant’s scheduled visitation day, Douglas testified that 9:55 pm was not an appropriate time to call about picking up their child because he was already sleeping at that time. Finally, the sheer number of times appellant called Douglas is evidence that appellant intended to harass or annoy her. Over the course of eight nonconsecutive days, appellant called Douglas at least 329 times. Appellant admits in his brief that the “repeated calls were made because [Douglas] refused to answer the phone or return his phone calls.” The jury could have found that appellant’s strategy was to call persistently until Douglas could no longer endure the ringing phone and would have to answer. Viewing the evidence in the light most favorable to the verdict, we conclude that appellant’s incessant calling provided sufficient circumstantial evidence from which a rational fact finder could have found beyond a reasonable doubt that appellant intended to harass, annoy, alarm, abuse, torment, or embarrass Douglas. See King, 29 S.W.3d at 562. We overrule appellant’s first point of error. Factual Sufficiency In his second point of error, appellant contends the evidence is factually insufficient because the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. In a factual-sufficiency review, we view all of the evidence in a neutral light, both for and against the finding, and set aside the verdict if proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim. App. 2005). In conducting our review, we consider all of the evidence weighed by the jury, comparing the evidence which tends to prove the existence of the elemental fact in dispute to the evidence which tends to disprove it. Id. We are authorized to disagree with the jury’s determination even if probative evidence exists that supports the verdict, but we must avoid substituting our judgment for that of the fact-finder. Id. We must also be mindful that the fact finder is the sole judge of the credibility of the witnesses and may choose to believe all, some, or none of the testimony presented. Cain v. State, 958 S.W.2d 404, 407 n.4–5 (Tex. Crim. App. 1997). The fact-finder is the judge of the weight to give contradictory testimonial evidence because it turns on an evaluation of credibility and demeanor. Id. at 408-09. Appellant argues that, because (1) Douglas testified to answering only 4-5 phone calls, (2) no call was obscene or vulgar, (3) Douglas turned off her ringer, and (4) he called to schedule a visitation with his son, the evidence is factually insufficient. We disagree and conclude there is factually sufficient evidence that appellant repeatedly called Douglas with the intent to harass her. Section 42.07(a)(4) of the Penal Code requires only that the phone ring repeatedly and does not require that the repeated phone calls be answered. Tex. Pen. Code Ann. § 42.07(a)(4) (Vernon 2003). Here, the record shows that appellant called Douglas 52 times on February 6th, and that 42 of those calls occurred within one hour. Even if we were limited to the 4-5 answered phone calls, the number is of no consequence because this Court noted that two phone calls in one day are enough to meet the “repeated” element of Section 42.07. Blount, 961 S.W.2d at 285. It is likewise of no consequence that Douglas turned the ringers on her phone off, because she testified she did so only after the phone rang repeatedly. Finally, Douglas also testified that she asked appellant not to call, that he persisted, and that the telephone calls related to her personal character and not their child. Based on the evidence before it, the jury was entitled to reconcile the contradictory testimony in favor of the State. Reece, 878 S.W.2d at 325 (stating that the jury is the sole judge of the credibility of the witnesses). Because our evaluation should not intrude upon the fact finder’s role as the sole judge of the weight and credibility given to any witness’s testimony, when we view the evidence in a neutral light, we conclude that the evidence supporting appellant’s conviction is not so obviously weak as to undermine confidence in the jury’s determination; similarly, the proof of guilt is not greatly outweighed by contrary proof. Vodochodsky, 158 S.W.3d at 510. We overrule appellant’s second point of error. Conclusion We affirm the judgment of the trial court. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Jennings and Alcala. Do not publish. Tex. R. App. P. 47.2(b).