Effrin Jermon Smith v. State

• Court: Court of Appeals of Texas
• Decided: April 17, 2007
• Docket: 06-06-00188-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-06-00188-CR

EFFRIN JERMON SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th Judicial District Court

Lamar County, Texas

Trial Court No. 21441

Before Morriss, C.J., Carter and Moseley, JJ.

Opinion by Justice Moseley

Dissenting Opinion by Justice Carter

O P I N I O N

Effrin Jermon Smith pled guilty in this case to a charge of delivery of a controlled substance, less than one gram, in a drug-free zone, with a deadly-weapon finding and was tried simultaneously with and in the same hearings with a charge of possessing more than four, but less than 200 grams of a controlled substance. ⁽¹⁾ The case was tried to the trial court on punishment, and the court sentenced Smith to ten years' imprisonment.

On appeal, Smith contends that we should reverse for a new punishment hearing because he did not adequately waive his right to a jury trial on punishment. Counsel points out that the Federal Constitution as interpreted by the United States Supreme Court requires an affirmative intentional relinquishment of the right to a jury trial and that Texas statutory law also requires the right to a jury trial to be waived in writing--and the section of the written admonishments that would have provided such waiver was struck through. Counsel also argues that no adequate verbal waiver of the right to a jury on punishment was made.

Constitutional Underpinning

The initial problem with this position is that the federal constitutional right of trial by jury does not encompass the right to have a jury assess the punishment. Martin v. State, 452 S.W.2d 481, 482 (Tex. Crim. App. 1970); Baylor v. State, 195 S.W.3d 157, 159 (Tex. App.--San Antonio 2006, no pet.). ⁽²⁾ Accordingly, Smith's suggestion that constitutional rights are implicated in this instance is without merit. ⁽³⁾ In Texas, the right of the accused for a jury to assess punishment is purely statutory in nature.

Factual Basis for the Claim

The factual basis for the argument is this: in the omnibus admonishment and waiver and approval document filed with and approved by the court, the specific portion of the document containing the waiver of the right to have a jury determine punishment has been stricken. The pertinent portion of the document reads as follows:

15. I give up and waive my right to a jury, both as to my guilt and assessment of my punishment. I give up and waive the right to appearance, confrontation, and cross-examination of witnesses. I consent to oral and written stipulation of evidence.

In this appeal, under the document mentioned, Smith signed an instrument by which he expressly waived his right to a jury trial as to the issue of guilt, but did not make a similar waiver of his right to have a jury assess his punishment. ⁽⁴⁾ Article 26.14 of the Texas Code of Criminal Procedure states that,

[W]here a defendant in a case of felony persists in pleading guilty or in entering a plea of nolo contendere, if the punishment is not absolutely fixed by law, a jury shall be impaneled to assess the punishment and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 or 37.07 shall have waived his right to trial by jury.

Tex. Code Crim. Proc. Ann. art. 26.14 (Vernon 1989); see Scott v. State, 173 S.W.3d 856, 869 (Tex. App.--Texarkana 2005, no pet.).

Article 37.07 provides that, if a finding of guilty is returned, the defendant may, with the consent of the attorney for the State, change his or her election of whether the judge or jury assesses the punishment. Tex. Code Crim. Proc. Ann. art. 37.07, § 2(b). That section is inapplicable.

Article 1.13 provides that a defendant may, upon entering a plea, waive the right of trial by jury but specifies that the waiver must be in writing, be in open court, and be made with the consent and approval of the court and the attorney representing the State. Tex. Code Crim. Proc. Ann. art 1.13.

Is waiver of jury trial at guilt/innocence phase enough to waive at punishment phase as well?

The State has directed us to the case of Johnson v. State, 72 S.W.3d 346 (Tex. Crim. App. 2002), as its primary authority to support the court's action. In Johnson, the court held that the lack of a written jury waiver is not harmful when the record reflects that the defendant was aware of his right to a jury trial and waived that right. Id. at 348-49. Based on the recital in the judgment stating that Johnson "waived trial by jury," the court determined that Johnson knew about his right to a jury trial and that he waived that right. Id. at 349. The court noted that a recital in a judgment is presumptively correct unless there is direct proof to its falsity. Id. n.10 (citing Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (op. on reh'g)). Because the court found nothing in the record directly proving the recital was false, the court held that Johnson had not been harmed because he consciously waived his right to a jury trial--even though the record also did not support the recital. Id.

That case is informative, but does not directly control this situation. It is clear from the authorities cited above that the right to a jury trial on guilt/innocence and the right to have a jury assess punishment are two entirely different creatures. There is no authority suggesting that to waive one is to waive both, and the forms typically used (as in this case) directly reflect that fact. There was no written waiver of the statutory right to have a jury assess punishment in this case and, more importantly, the part of the form waiver which would have effected that result was stricken through. Likewise, there was no explicit oral waiver at the guilt/innocence phase hearing.

The judgment in this case does state that Smith waived "the right of trial by jury." It does not state that he waived the right to have punishment decided by a jury; even more to the point, the document shows an effort to specifically strike out the preprinted waiver concerning the waiver of a right to have a jury assess punishment. Again, though the punishment proceeding is part of the overall trial, the cases uniformly hold that the right is not based on the right to a jury trial on guilt/innocence, but instead is based on statutory fiat.

There was only one brief exchange at the guilt/innocence phase hearing that mentioned jury trial: the court asked Smith, "Do you want a jury trial?" to which Smith answered, "No, sir." The plea of guilty was entered some eight days before the trial before the court on the issue of punishment.

We conclude that this is insufficient to act as a waiver, either oral or written, sufficient to meet the requirements of the Code.

Preservation of Error

The next question is whether the issue now raised was adequately preserved for our review. As previously stated, the right to a jury trial on punishment is not constitutionally based. There are three different types of waiver analyses.

A systemic (or absolute) requirement is one of the "three distinct kinds" of rules that our judicial system may be thought to contain. Brumit v. State, 206 S.W.3d 639, 644 (Tex. Crim. App. 2006); Mendez v. State, 138 S.W.3d 334, 340-41 (Tex. Crim. App. 2004); Marin v. State, 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993), rev'd on other grounds, 891 S.W.2d 267 (Tex. Crim. App. 1994). Those requirements are not waivable.

A second kind is the "waivable right," that is, "rights of litigants which must be implemented by the system unless expressly waived." Marin, 851 S.W.2d at 279-80; Garcia v. State, 149 S.W.3d 135, 144 (Tex. Crim. App. 2004).

The third kind is the "forfeitable right"; in this class are "rights of litigants which are to be implemented upon request." Marin, 851 S.W.2d at 279; Garcia, 149 S.W.3d at 144. "A cursory examination of the myriad evidentiary and procedural rules compris[ed by] our system reveals that most of them are of this [forfeitable] type. . . . In short, the rights of litigants in our system are usually forfeited by a failure to exercise them." The requirements for presenting a complaint for appellate review are not the same for all these kinds of rules. Mendez, 138 S.W.3d at 340-41.

In this case, there is authority that there is no constitutional right to a jury for punishment. It is not a systemic requirement. We thus look to see if the right is one described as being waivable. Smith argues that it is a waivable right, one that must be implemented by the system unless expressly waived; he further takes the position that no express waiver is shown by this record. Waivable-only rights are those rights that must be recognized unless affirmatively waived on the record. Id. They include the right to assistance of counsel and to a jury trial. See Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003); Deener v. State, No. 05-05-00703-CR, 2006 WL 3479941 (Tex. App.--Dallas Dec. 4, 2006, no pet. h.).

One question is whether the constitutionally based right to a jury trial should be treated differently for preservation purposes than a statutory right to a jury trial at punishment. Arguably, it should not. Marin, the underlying case which drew these distinctions, was itself an analysis of a statutory right to ten days to prepare for trial. As assessed recently by the Texas Court of Criminal Appeals,

[t]he issue in Marin was "whether the failure of the trial judge to allow appointed counsel ten days of trial preparation in violation of article 1.051(e), Texas Code of Criminal Procedure, may be raised for the first time on appeal." We found that the right protected by this statute was waivable-only because the Legislature said so:

"the Court of Appeals rightly determined that article 1.051(e) is waivable only, inasmuch as the Legislature said so expressly by providing that appointed counsel 'may waive the [10 days of] preparation time with the consent of the defendant in writing or on the record in open court.' We agree with the lower court that this language clearly does not contemplate a forfeiture of the statutory right from a mere failure to object at trial."

Saldano, 70 S.W.3d at 888 (quoting Marin, 851 S.W.2d at 280) (footnotes omitted).

Thus, under Marin, where the Legislature has provided a specific method that is to be utilized in order to waive the right, then it is "waivable only," and a trial objection need not be raised.

In summary, the right to jury trial is "waivable only." The right to have a jury determine punishment is likewise waivable--as provided explicitly by statute, and thus is "waivable only."

The issue is properly before us for review.

On the Merits

We have previously recognized from our review of the record that there is no written waiver and that the judgment does not contain language elsewhere which might be glossed to serve as a waiver of this separate right. We have also recognized that Smith did not orally waive this right.

As a nonconstitutional error, we will find harm resulted if Smith's substantial rights were affected. Johnson, 72 S.W.3d at 348; see also Tex. R. App. P. 44.2(b). We can glean from this record that Smith was aware of his right to a trial by jury and was also aware of his right to a jury at punishment. See Johnson, 72 S.W.3d at 349 (holding that, even where there is a violation of Article 1.13, there is no harm if the record reflects that the defendant was aware of his right to a jury trial); accord Ybarra v. State, 93 S.W.3d 922, 925-26 (Tex. App.--Corpus Christi 2002, no pet.). We also recognize that the violation of a mandatory statute does not, by itself, call for the reversal of a conviction. Ford v. State, 73 S.W.3d 923, 925 (Tex. Crim. App. 2002). To assess nonconstitutional errors, we examine whether the purpose of the statute or rule violated was thwarted by the error. See id. at 925-26; Roethel v. State, 80 S.W.3d 276, 281 (Tex. App.--Austin 2002, no pet.).

We conclude that the purpose of this statute is to ensure that a defendant is fully aware of his right to have a jury determine his fate at the punishment phase of his trial. We believe that from this record we can reasonably conclude that Smith was aware of that right, as he was fully informed of its existence, and it is certainly apparent from the record that he expected the trial court to determine his sentence in both cases.

We also recognize that the two appeals before us were tried simultaneously on punishment by the trial court. While in this appeal Smith struck out the portion of his waiver that would have waived his right to a jury trial on punishment, he did not strike out that portion in the other case. After being found guilty by the trial court on both charges, the court stated that it would hear punishment (presumably in both cases) at a later date. Then, both cases were called for hearing on punishment some eight days later, and evidence for both was presented and heard by the court. There was never any direct or implied suggestion (at either the guilt/innocence hearing or the punishment phase hearing) by anyone that the court should have been engaged in considering the punishment issue in only one of these two cases.

We do not suggest that this inaction constitutes a waiver because that would fly in the face of the requirement of an express waiver of the right to a jury determination on punishment. However, it is relevant to the necessary harm analysis.

We reiterate: Smith was aware of his right, as shown by his action of expressly waiving the right in one case, while striking through the waiver language in the second. The cases were tried together, and the clear assumption and behavior of all parties, including counsel, court, and defendant, reflects that they expected punishment to be determined by the trial court rather than by a jury.

Pursuant to the reasoning used by the Texas Court of Criminal Appeals in Johnson, which we are obligated to follow, we likewise find in this case that Smith was fully aware of his right to a jury trial on the issue of punishment in this case; thus, no harm has been shown.

We conclude that, under these facts, Smith's substantial rights were not violated by the error. The contention is overruled.

Reformation

Smith also contends that the conviction in this appeal, trial cause number 21441, contains an error: it incorrectly reflects a conviction for delivery of cocaine of four to 200 grams, when it should have stated "less than one gram." The indictment alleges delivery of cocaine in an amount less than one gram.

During the plea proceeding, the two cases were entangled by court and counsel. The court admonished Smith that the range of punishment for the possession case (which was the four to 200 gram case) was two to ten years and that the range of punishment for the delivery (less than one gram) was five to ninety-nine years or life in prison. The correct range was five to ninety-nine years or life for the possession case (a first-degree felony), and two to ten years for the delivery (a third-degree felony). When Smith was ultimately sentenced by the court, the proper ranges were utilized for the correct offenses. However, the judgment itself is incorrect, as is acknowledged by the State.

We have the authority to correct and reform a judgment to make the record speak the truth. See French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992). Accordingly, we reform the judgment in this case to delete the language stating that Smith was convicted for delivery of a controlled substance between four and 200 grams in a drug-free zone, and reform the judgment to state that he was convicted of delivery of a controlled substance, less than one gram, in a drug-free zone.

As reformed, we affirm the judgment.

Bailey C. Moseley

Justice

DISSENTING OPINION

The Texas Court of Criminal Appeals in Johnson held that the failure of the defendant to sign a written waiver of jury trial is not harmful error when the record shows the defendant was aware of such right and waived it. Johnson v. State, 72 S.W.3d 346, 349 (Tex. Crim. App. 2002). The effect of the Johnson opinion is that a written document is not the exclusive way to evidence waiver of a jury trial. In this case, the record shows that Smith knew of his jury trial rights because he signed a form in which it appears he waived such right as to the guilt/innocence trial. However, the fact that he knew of the right does not supply evidence that he waived that right. In fact, the record shows that he specifically refused to waive his jury trial right as to punishment by affirmatively marking out that part of the printed form. Further, the fact that he signed a written waiver of jury trial as to both guilt and punishment in another case weighs against a finding of waiver in this case. If anything, it shows that he intended to waive a jury trial in both guilt and punishment stages of the first trial, but here he specifically preserved his right to a jury trial for punishment.

In Johnson, the Texas Court of Criminal Appeals noted that the judgment recited a waiver of jury trial and declared that such a recitation was binding in the absence of direct proof to the contrary. Id. Here, such a recitation is in the judgment, but direct contrary proof is in the record--the waiver of jury trial as to punishment has been marked out. We simply do not have evidence that Smith waived his statutory right to a jury trial on punishment. The error cannot be considered harmless. I would reverse the case for a new punishment trial.

I respectfully dissent from the majority opinion.

Jack Carter

Date Submitted: February 26, 2007

Date Decided: April 17, 2007

Publish

1. The companion case is also being appealed and bears this Court's case number 06-06-00187-CR.

2. Texas also has both a constitutional right to a jury trial and a statutory right to a jury trial. Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. arts. 1.12, 1.13, 1.14, 1.15 (Vernon 2005), art. 37.07 (Vernon 2006). However, the Texas constitutional right to a jury trial does not include the right to have the jury assess punishment. Martin v. State, 753 S.W.2d 384, 389 (Tex. Crim. App. 1988); Martinez v. State, 66 S.W.3d 467, 471 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd).

3. We recognize that a sentencing scheme is proscribed by the United States Constitution based upon the right to trial by jury if it allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. See Cunningham v. California, ___ U.S. ___, 166 L.Ed.2d 856, 864 (2007). Those considerations are not before us.

4. It is noted that the portions of the document containing the waivers of the right to confront and cross-examine witnesses, as well as the consent to stipulation of evidence, are stricken through.

n; mso-para-margin-bottom:10.0pt; mso-para-margin-left:0in; line-height:115%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin;}

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                             No. 06-10-00176-CR

                               ANGELA CHEATWOOD LEE, Appellant

                                       On Appeal from the County Court at Law No. 2

                                                           Angelina County, Texas

                                                           Trial Court No. 09-1822

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                            Memorandum Opinion by Justice Moseley

                                                     MEMORANDUM  OPINION

            Angela Cheatwood Lee appeals her conviction for the misdemeanor offense of harassment.^[1]  After a trial to the court, she was found guilty of harassment for repeatedly sending telephonic messages to her former boyfriend, William Chunn.  The trial court sentenced Lee to three months’ incarceration and a fine of $250.00, but suspended the jail term, placing Lee on community supervision for six months.  On appeal,^[2] Lee claims:  (1) the statute penalizing harassment is unconstitutionally vague as it is applied to Lee; and (2) the evidence is insufficient to support the judgment of the trial court.  After reviewing the applicable law, the evidence, and Lee’s brief, we overrule her points of error and affirm the trial court’s judgment and sentence.  

I.          A Woman Scorned

            For a period ending about two years before trial (which occurred in late spring of 2010),  Lee and Chunn had engaged in an intermittent relationship for about six or seven years, a relationship which Chunn described as both “emotional” and “[m]iserable.”  In the middle to latter part of 2009, Chunn established a romantic relationship with another woman, Teresa Bobbitt (to whom reference is made hereafter as Teresa).  In August and September 2009, Lee made a number of telephone calls to Chunn’s telephone number and left multiple voice messages.  Chunn testified Lee began to call more frequently around September 26, 2009, when Lee discovered that Chunn was seeing Teresa.  In addition, Lee telephoned Chunn frequently at his work places, the unwanted calls causing Chunn to lose one job.  Chunn married Teresa in January 2010.

            Teresa testified that the calls and messages from Lee became much more frequent when Lee discovered Teresa and Chunn were dating.  Teresa said the calls “[n]ever stopped” since May 2009.  Like Chunn, she said the unwanted and repeated contact from Lee strained the Chunns’ relationship.  Teresa related that because she and Chunn shared a cell phone, she was aware of the multiple text messages sent by Lee to Chunn; oftentimes, Teresa would answer calls to discover that the caller was Lee, who would then demand to speak to Chunn.  Teresa testified she took the cell phone, which bore several messages recorded in August and September 2009, to the police and the police recorded the messages which had been left.  Teresa testified there were many more messages than those she shared with police, but that she provided the police with only those few, due to the limited number of messages the cell phone could retain.  Teresa further testified she had on many occasions told Lee to cease the calls, calls which she related were often placed in the late night or early morning hours.  Teresa also testified that she found the calls placed about 2:00 a.m. to be particularly annoying.  

            Lee was interviewed by Lufkin Police Detective Ron Stubblefield.  The State introduced a compact disc, which contained a recording of that interview along with recordings of five messages left by Lee on Chunn’s cell phone.  Some of these messages are very brief and consisted of requests by Lee for Chunn to return the call.  In contrast to those short messages, another of the calls lasts about a minute and twenty seconds and is a rambling soliloquy by Lee wherein she declares her love for Chunn and bemoans problems in their past relationship.  The following and final message consumes a little more than half a minute; in that message, Lee makes reference to the prior call, saying both that she did not mean and did mean things she had said in the previous message and again wishing she could talk with Chunn about their relationship.^[3]  In the recorded interview, Lee told Stubblefield that her repeated efforts to contact Chunn were due to her concern for his lifestyle choices (such as alleged drug use) and that the purpose of her calls was to encourage him “to straighten up” and “live right.”  Also mentioned was an instance in which Lee came to a bowling alley to see Chunn and another incident about a year prior to the interview when an argument between Lee and Chunn’s sister occurred. 

II.        No Unconstitutional Vagueness of the Harassment Statute as Applied

            A.        Who Possessed the Phone?

            In her first point of error, Lee complains the statute is unconstitutionally vague as applied to her under these circumstances. 

            A claim that a statute is unconstitutional “as applied” is a claim that the statute, although generally constitutional, operates unconstitutionally as to the claimant because of his particular circumstances.  Gillenwaters v. State, 205 S.W.3d 534, 536 n.3 (Tex. Crim. App. 2006); Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 461 n.5 (Tex. 1997).^[4]  Lee raises three areas where she believes the statute is vague.  

            Lee claims the statute is vague because it allows a conviction where the “evidence offered does not show that the phone which received the voice messages was in the possession of William Chunn as opposed to Teresa Chunn.”  Lee provides no explanation how this situation renders the statute vague as applied to her.  Teresa testified that when she and Chunn began dating, they got a single cell phone and Teresa usually kept that telephone with her.  She said many calls came to that telephone from Lee, during which Lee asked or demanded to speak with Chunn.  Teresa also said that she found text messages from Lee to Chunn which had been directed to the telephone.  Chunn also testified that he received multiple calls and messages from Lee on the cell phone within the span of time named in the information and for months after that time span.  All of this is evidence of voice messages directed to Chunn (irrespective of whether the phone or phones upon which the messages were received were in the possession of Chunn, of Teresa, or in their joint possession).  

            Whether the telephone upon which the offending voice messages were received was in the possession of the victim (Chunn) named in the complaint and information, or Chunn’s wife, Teresa, is not relevant.  The statute criminalizes conduct where one, “with intent to harass, annoy, alarm, abuse, torment, or embarrass another,” makes repeated telephone calls to another, causing that person’s “telephone . . . to ring repeatedly or makes repeated telephone communications” either anonymously or in a “manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.”  Tex. Penal Code Ann. § 42.07(a)(4).  There is nothing in the proscribed behavior criminalized by this statute which requires the accused to know which or whose telephone actually received the offending calls or (also in this case) messages.  In this age of ubiquitous communication devices, it is certainly possible and is not inconceivable that more than one telephone could be caused to ring repeatedly or made to receive communications or messages.  Lee was not required to know the identity of the person who actually possessed the telephone to which she was making the proscribed communications at the time she placed the calls or sent the messages so long as the State could prove, under the terms of Section 42.07(a)(4), that Lee intended to direct those communications to Chunn, the victim.  If the State could prove that Lee engaged in the prohibited conduct by intending to make the communications to Chunn, it would not exculpate her if the telephone which Lee contacted was actually in the possession of Chunn’s wife at the time of the transmission.  Had Lee not been satisfied with the sufficiency of the notice provided by the complaint concerning the nature of the State’s allegations and how she was alleged to have violated the law, her remedy was to file a motion to quash the complaint prior to trial.  See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005).  

            B.        Intent

            In the same point of error, Lee contends that the statute under which she was charged and convicted was vague as applied to her “in failing to define if one such as the appellant can be convicted without any offer that she had a specific intent to violate the statute[’]s provisions of intending to harass, annoy, alarm, abuse, torment, embarrass, or offend another.”  We disagree with Lee’s argument.  Section 42.07(a)(4) requires proof that the actor engages in one of the various forms of prohibited conduct “with intent to harass, annoy, alarm, abuse, torment, or embarrass another.”  Tex. Penal Code Ann. § 42.07(a).  The statute appears to be quite specific in its wording and fits the circumstances described here.^[5]  

            In support of her claim that the statute is vague for not requiring “specific intent,” Lee’s brief claims that Chunn “believe[d] [Lee’s] intent [was] otherwise.”  We find nothing at the location in the reporter’s record to which Lee cites to support this assertion, unless she is referring to Chunn’s statement that Lee’s harassing calls started when Lee found out Chunn was seeing another woman.  This neither negates an inference of intent on Lee’s part, nor does Lee offer any support for her claim that Chunn did “not indicate he believed [Lee] had a specific intent to harass, annoy, alarm, abuse, torment, embarrass, or offend him.”  Lee’s appellate argument in this regard would seemingly apply more appropriately to an attack on the sufficiency of the evidence than to an argument or explanation of Lee’s contention that the statute is vague as applied to her.  

            In her complaint that Section 42.07 is vague as applied to Lee’s circumstances, she complains of the statute’s use of the terms “repeatedly” and “repeated.”  Interpreting this statute, the Texas Court of Criminal Appeals came to the following conclusion on the meaning of “repeated” in this context:

The term “repeated” is commonly understood to mean “reiterated,” “recurring,” or “frequent.”  Webster’s Ninth New Collegiate Dictionary 998 (1988); 2 Oxford English Dictionary 2494 (1971).  Here, we believe that the Legislature intended the phrase “repeated telephone communications” to mean “more than one telephone call in close enough proximity to properly be termed a single episode,” because it is the frequent repetition of harassing telephone calls that makes them intolerable and justifies their criminal prohibition.  See M. Royall, Constitutionally Regulating Telephone Harassment:  An Exercise in Statutory Precision, 56 U. Chi. L. Rev. 1403, 1430 (1989) (“Prudence may justify a hands-off policy for single calls made with the intent to harass, but as harassing calls are repeated the state interest in intervening to protect the recipient becomes more compelling.”).

Scott, 322 S.W.3d at 669 n.12.  In her brief, Lee argues “the assumption that simple repeated repetition [sic] can be construed on its face is vague as applied to the four non specific voice messages were are [sic] produced.”  We take this fairly convoluted statement to mean that Lee does not believe that four of the five recordings of telephone messages introduced into evidence were sufficient to constitute the “repeated telephone communications” prohibited by the statute.  Tex. Penal Code Ann. § 42.07(a)(4).  The testimony is not perfectly clear, but Teresa testified to two telephone calls placed on the morning of September 9, 2009, three such calls about 6:00 a.m. September 25, 2009, while there were three calls placed about 2:00 a.m and another two about 1:00 p.m. on September 26, 2009.  Of these calls, Teresa said, “Those were the only ones . . .  that I got recorded.  If I would have kept up with it, there would have been more.”  From these rounds of telephone calls came the voice messages, which the Chunns presented to police and which were introduced into evidence.  

            We find in the instant situation, the telephone calls and voice messages described by the Chunns, as well as the few actually recorded and introduced into evidence, could qualify as “repeated” as that term is used in the statute.^[6]  Lee has failed to establish the statute is vague as applied to her situation.  We overrule Lee’s first point of error. 

III.       Sufficiency of the Evidence

            In her second point of error, Lee claims the evidence is legally insufficient to support the trial court’s verdict.  In reviewing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the jury’s verdict to determine whether any rational jury could have found the essential elements of the charged offense.  Brooks v. State, 323 S.W.3d 893, 902 n.19 (Tex. Crim. App. 2010) (4-1-4 decision) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.––Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).  Our rigorous legal sufficiency review focuses on the quality of the evidence presented.  Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring).  We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”  Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19).

            Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically-correct jury charge.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).^[7]  As charged in the information, the State was required to prove that (1) on or about September 26, 2009, (2) Lee, with intent to harass, annoy, alarm, abuse, torment, or embarrass Chunn, (3) sent repeated voice message communications to Chunn, (4) in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another person.  Tex. Penal Code Ann. § 42.07(a)(4).  

            Lee argues that the evidence is legally insufficient to prove that she had the specific intent to harass, annoy, alarm, abuse, torment, or embarrass Chunn.  Intent may be inferred from circumstantial evidence such as acts, words, and the conduct of the appellant.  Guevara, 152 S.W.3d at 50.  While it is true that only five of the messages were introduced into evidence to prove the information’s charge that Lee harassed Chunn by leaving voice messages, there was also testimony that Lee left many more messages than were preserved and presented to Detective Stubblefield.  Teresa said she only preserved the five messages she presented to Stubblefield, but there were more.  Although Chunn said that Lee had left fifteen to fifty messages, he did not specify a time period.  Also, Chunn and Teresa both said there were a high number of calls, with Chunn estimating fifty to a hundred.  The testimony heard by the court was that Lee had made multiple calls to Chunn at work and Chunn said he had lost one job due to Lee’s calls.  Lee told Stubblefield that she contacted one of Chunn’s employers to tell the employer Chunn had falsified a drug test.  This allegation, in addition to the number of calls and messages over time, support an inference that the messages Lee left on or about September 26 were made with the intent to harass, annoy, alarm, abuse, torment, or embarrass Chunn.  

            Both of the Chunns used the word “annoy” to describe their feelings about Lee’s conduct in making the calls and leaving the messages.  Chunn said the calls were “very annoying”; and Teresa said she was annoyed by Lee and her conduct.  Chunn and Teresa both said they told Lee not to call “several times” because Chunn did not want to speak to Lee.  Listening to the recordings of the messages admitted into evidence could further yield an inference they were made with the intent to harass, annoy, abuse, torment, or embarrass Chunn.  Two of the messages are rambling professions of Lee’s love for Chunn and her regret that their relationship had terminated.  Both Chunns testified that Lee’s repeated calls and messages placed a strain on their relationship, and both said the calls did not begin or at least achieve the high number until Lee became aware of the relationship which existed between Chunn and Teresa.  There was evidence the Chunns contacted Lee and asked her to cease her calls.  Lufkin Police Officer Stephen Dickens testified he told Lee on June 19, 2009, that Chunn wanted her contacts to cease, and Dickens asked Lee not to call Chunn any more.  Likewise, Detective Stubblefield also said that he had told Lee to stop contacting Chunn.  Although Stubblefield did not say exactly when he told Lee to stop, he said that he told her before the interview with her which occurred on October 5, 2009, and “prior to the last set of phone calls that were made.”  

            Viewed in totality, a rational finder of fact could conclude that Lee had the intent to harass, annoy, alarm, torment, or embarrass Chunn (even if the content of the calls, when contact was made, consisted of professions of love and pleas for forgiveness), and that she made repeated telephone communications^[8] reasonably likely to harass, alarm, annoy, abuse, torment, embarrass, or offend Chunn.  The evidence is sufficient to support the trial court’s judgment.  Lee’s second point of error is overruled.

            We affirm the trial court’s judgment.  

                                                                        Bailey C. Moseley

Date Submitted:          December 30, 2010

Date Decided:             January 14, 2011

Do Not Publish

---

^[1]Tex. Penal Code Ann. § 42.07 (Vernon 2003).

^[2]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005).  We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue.  See Tex. R. App. P. 41.3.

^[3]The record does not indicate when these messages were left.  The five messages appear in two files on the compact disc.  The first file is a single message; at the beginning of this message, an automated voice states the length of the message and reads a time and date of 11:07 a.m., on August 11, 2009.  The other file contains five messages which play one after another.  At the beginning of the messages, the automated voice says 3:20 p.m., September 29, 2009.  From witness testimony, it seems that William or Teresa Chunn brought their cell phone to Detective Stubblefield, who transferred those messages to his computer or recorded them as the messages were played for him. 

^[4]Earlier this year, the Texas Court of Criminal Appeals found Section 42.07(a)(4) did not implicate the free speech guarantees of the First Amendment, and the statute was not unconstitutionally vague on its face.  Scott v. State, 322 S.W.3d 662, 669–70 (Tex. Crim. App. 2010).

^[5]If Lee is complaining about the sufficiency of the evidence to prove intent, it is an oft-cited tenet of criminal law that intent may be inferred from one’s acts or words.  Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).  Based on the number of calls and messages and the span of time over which they occurred, and evidence Lee was told on many occasions by the Chunns and police to cease her attempts to contact Chunn, there was ample evidence from which the trier of fact could find evidence of Lee’s intent.  This contention is addressed in Lee’s second point of error. 

^[6]Lee then goes on to claim there is insufficient evidence to support a finding the voice messages were meant to annoy, alarm, abuse, torment, embarrass, or offend the recipient, as those terms were discussed in Scott.  See Scott, 322 S.W.3d at 669 n.13.  A challenge to the sufficiency of the evidence is different from a claim the statute is vague as applied to Lee.  Regardless of how we construe what is arguably a multifarious point of error, Lee has not explained how, much less demonstrated, that Section 42.07 of the Texas Penal Code is vague as applied to her. 

^[7]This test is used for bench trials as well as jury trials.  Malik, 953 S.W.2d at 240.

^[8]The Texas Court of Criminal Appeals in Scott concluded text of Section 42.07(a)(4) “suggests that it covers ordinary voice (and therefore voice mail) communication involving an ordinary telephone.”  Scott, 322 S.W.3d at 668.  Lee does not question whether the use of “voice messages” in the charging instruments alleges an offense under Section 42.07(a)(4).