Opinion issued March 31, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-01125-CR ——————————— ELISA MERRILL WILSON, Appellant V. STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2 Fort Bend County, Texas Trial Court Case No. 10CCR149142
MEMORANDUM OPINION In 2011, a Fort Bend County jury found Elisa Wilson guilty of telephone
harassment, and the trial court assessed punishment of 180 days in jail, probated
for 12 months. See TEX. PENAL CODE ANN. § 42.07(a)(4) (West Supp. 2014).
Wilson appealed her conviction, raising four issues: (1) that the evidence was insufficient to support the conviction; (2) that the trial court erred in rejecting
Wilson’s proffered jury instruction; (3) that the trial court abused its discretion in
overruling Wilson’s objection to the State’s extraneous-offense evidence; and (4)
that the trial court abused its discretion in excluding proffered defense evidence.
On original submission to this court, we found the evidence insufficient and, as a
result, reversed. The Court of Criminal Appeals reversed, holding that evidence
that Wilson left six telephone messages for Nicole Bailey over a 10-month period
supported the statutory requirement of “repeated telephone calls” and that the
benign content, or the facially legitimate purpose, of a telephone call does not
legally negate the prohibited intent of the call. The Court of Criminal Appeals
remanded the case to this Court for consideration of Wilson’s jury-charge and
evidentiary complaints. Also, Wilson seeks to raise both facial and as-applied First
Amendment challenges to the telephone harassment statute in a supplemental brief
filed after remand. We affirm.
Background
The information against Wilson charged that, “on or about April 6, 2009
thr[ough] March 3, 2010, [Wilson] did then and there, with intent to harass, annoy,
alarm, abuse, torment or embarrass Nicole Bailey, make repeated telephone
communications to Nicole Bailey in a manner reasonably likely to harass or annoy
or alarm or abuse or torment or embarrass or offend the said Nicole Bailey.” The
2 jury heard evidence that Wilson left six telephone messages for Bailey, on April 6,
2009, June 11, 2009, August 31, 2009, September 5, 2009, December 23, 2009,
and February 5, 2010. In these messages, Wilson:
• said that she saw a dog in her yard that looked like another neighbor’s dog and asked Bailey to let them know that the neighbor could come pick it up if they were missing their dog;
• told Bailey that she did not want Bailey to talk to her or approach her in public ever again;
• referred to an incident that occurred on August 30, 2009, in which Wilson followed Bailey through a grocery store screaming at her; Wilson said that she was caught off guard and thought “it was an attack,” and stated that she was calling to say she was sorry;
• complained that the work Bailey was having done on her driveway was against the deed restrictions;
• told Bailey that she saw what looked like cement debris from the driveway job that needed to be cleaned up, and that she was asking her “nicely this time”; and
• reminded Bailey that Wilson had surveillance cameras, told Bailey that she could “come pick up her newspaper,” and warned Bailey to leave her alone and not “accost” or “harass” her any more.
The content of Wilson’s calls was not overtly harassing. For this reason, the
State sought to admit evidence of Wilson’s various interactions with Bailey and
other neighbors over the course of several years.
3 Bailey moved into a Fort Bend County subdivision in 2000. She became
acquainted with her neighbors, the Wilsons. After Stephanie Ballard and her
husband moved into the neighborhood, they all became friends and socialized
frequently. Bailey and Wilson developed a close friendship, which they likened to
a “mother-daughter” relationship. Ballard and Bailey, who were nearer each other
in age, also became close friends.
The first witness to testify at trial was Stephanie Ballard. In December
2004, the Ballards held a Christmas party, which Bailey and the Wilsons attended.
The party took on a celebratory tone until the conversation turned to politics.
Ballard’s husband said something that upset Wilson. She raised her voice, and,
using profanity, left abruptly.
The Ballards’ relationship with Wilson became strained. When Wilson set
off fireworks in early 2005, Ballard, upset that the noise had awakened her toddler,
went outside and confronted Wilson. The next day, she went to Wilson’s home to
discuss the situation, Wilson invited her into her dining room, went into the
kitchen, and returned holding a revolver, which she placed on the table pointing
toward Ballard. Then, Wilson told Ballard, “If you would like to talk, let’s go
ahead and talk.” Wilson explained to Ballard her understanding of her legal right
to set off fireworks.
4 After that incident, Wilson set off fireworks with greater frequency,
beginning early in the morning and sometimes hourly. Ballard filed a lawsuit in
the justice court seeking a “peace bond” to prevent Wilson from setting off
fireworks. Bailey agreed to appear at the hearing on Ballard’s behalf. The
proceeding was unsuccessful; the justice court decided that Wilson was acting
within her rights to set off the fireworks.
After the hearing, Wilson became even more hostile to Ballard and turned
against Bailey for siding with Ballard. She continued discharging fireworks and
made other loud noises with an air horn and her car horn. According to Ballard,
Wilson reported child abuse to Children’s Protective Services, alleging that Ballard
was mentally unstable and that she “was involved in a pornographic pedophile
website, that [her] children were being used for a pornographic website of some
sort.”
In December 2005, the Ballards went to Bailey’s home to greet her during
the holidays and encountered Wilson, who had also been invited. Wilson leaned
toward Ballard’s husband to greet him, and he backed away from her. Shortly
thereafter, the Ballards received a letter from Wilson’s lawyer alleging that Ballard
had assaulted Wilson during the incident. Around the same time, the Ballards
found nails in their car tires, which they attributed to Wilson. Ballard testified to
various other incidents involving Wilson, including the following:
5 • When Ballard returned home from the hospital with her second child, she noticed a sign in Wilson’s window stating: “Never mind the gun. Beware of the neighbor”;
• Wilson took pictures of her and her children when they were out in the front yard;
• Wilson filed a false report with Animal Control that the Ballards allowed their dog to run loose in a rabid state.
Ballard explained that she and her family moved from the neighborhood
specifically because of Wilson’s behavior toward them. After they moved, Ballard
testified, Wilson
• came to Ballard’s workplace and told Ballard to stop sending her letters, which Ballard had not sent in the first place;
• told Ballard’s boss, “Do you know . . . what kind of person you have working for you?,” after which she was dismissed from the premises;
• called Ballard twice on her cell phone in January 2010 and talked about incidents with her (and Ballard’s former) neighbors, which Ballard found harassing; and
• came up to the Ballards in a restaurant and told them how much she liked their new house, which unnerved Ballard because she had taken lengths to keep Wilson from knowing her new home’s location and Wilson’s description indicated that she knew where they lived.
The second witness to testify at trial was Tim Simmons, the neighborhood’s
representative to the homeowner’s association. Simmons related his experience in
dealing with Wilson in 2001, when the HOA sought easements from residents to
build a community fence around the perimeter. Simmons testified that Wilson
6 agreed to allow the fence to be on her property, but that she resisted signing an
easement to the HOA. Simmons also testified to many neighborhood complaints
he received about Wilson, including a 2006 complaint from Ballard about Wilson’s
use of firecrackers, and that the association had received fewer complaints about
Ballard and none about Bailey. Simmons recalled that Wilson began screaming at
him and his wife at an HOA meeting. In a 2007 election, Wilson’s husband ran
against Simmons for the neighborhood representative position and lost. The
following Halloween, Wilson decorated her fence with a ghoulish figure and put a
sign on it with the name “Sam” referring to Simmons’s wife.
The third witness was Lisa Decoster, another of Wilson’s neighbors.
Decoster testified that in 2005 and 2006, she took care of the Wilsons’ dog when
they were away. She described the Wilson’s home as “unusual,” because it had pet
feces on the floor and multiple law books on the dining room table. Decoster
corroborated Simmons’s testimony that Wilson was argumentative at HOA
meetings. Decoster also testified Wilson taped a letter on neighborhood doors in
November 2007 that talked about Stephanie Ballard in a “negative” and
“derogatory” way and had nothing to do with the ongoing HOA election.
According to Decoster, Wilson pointed out Bailey’s home to her and told her that
that Bailey made pornography videos and was a drug dealer.
7 The first day of trial closed with testimony from Joan Hendricks, another
neighbor. Like Ballard and Bailey, Hendricks had been friends with Wilson but
was no longer. Hendricks buttressed previous testimony concerning Wilson’s
behavior, including her propensity to set off fireworks and make other loud noises,
her animosity toward Simmons’s wife, problems with Wilson’s behavior raised at
HOA meetings, and Wilson’s false assault allegations against Ballard’s husband.
Hendricks recounted that her friendship with Wilson ended in late 2008.
Hendricks had watched the Wilsons’ home when they were out of town, and, when
the Wilsons returned, Wilson made a police report falsely alleging that Hendricks’s
daughter had taken Wilson’s car for a joyride. Hendricks told the jury that Wilson
would throw firecrackers at her husband when he was out or at their cars in the
driveway. She also described an incident where she saw Wilson walking in the
street with a large kitchen knife, which, Wilson told her, was to protect herself
against loose dogs.
Enrique Ozuna, who married Nicole Bailey in 2011, testified the following
morning. He explained that he first encountered Wilson while at the grocery store
with Bailey and that Wilson had screamed at them and accused them of being
involved in prostitution.
Bailey testified next. She described her circumstances when she moved into
the neighborhood and how she became friends with Wilson. She recounted a trip
8 that she took with Wilson to California following the death of Wilson’s father, and
that Bailey was taken aback at Wilson’s confrontations with her former
stepmother, whom Wilson accused of having murdered him, and area law
enforcement.
Bailey explained that her friendship with Wilson ended when she testified on
behalf of the Ballards at the peace bond proceeding. Wilson sued Bailey for
negligence under her homeowner’s insurance policy based on the December 2005
incident involving Ballard’s husband.
Bailey testified that she sent letters to Wilson and her lawyer in April 2006
asking Wilson to stop calling her. According to Bailey, three CPS complaints were
made concerning Ballard’s children and included allegations that Bailey was using
the children for internet pornography. Bailey also described Wilson’s 2008
Halloween decorations and the reference to Simmons’s wife. According to Bailey,
Wilson also harassed her by calling the police and feigning concern that Bailey
was suicidal, which caused the police to visit Bailey’s home. Bailey explained the
situation to the police, and the police instructed Wilson to stop communicating
with Bailey. Wilson retaliated by throwing dog feces into Bailey’s yard and
throwing fireworks at her car.
9 Bailey testified to the details of the messages that Bailey left on her
telephone answering machine on six occasions—April 6, 2009; June 11, 2009;
August 31, 2009; September 5, 2009; December 23, 2009; and February 5, 2010.
Officer Stevenson with the Fort Bend County Sheriff’s Department testified
about his investigation of the harassment complaint made by Ballard. He learned
of Wilson’s treatment of Bailey in the course of that investigation, and he recorded
Bailey’s statement to serve as the basis for her harassment complaint.
Discussion
I. Charge Error
During the charge conference, Wilson asked the trial court to include her
proposed definition for “repeated telephone communications” to mean “more than
one telephone call in close enough proximity to properly be termed a single
episode.” The trial court refused the instruction which, Wilson claims, was error.
The trial court must give the jury a written charge that sets forth the law
applicable to the case. TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). We
review a claim of jury-charge error using the procedure set out in Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1985), which first requires us to determine
whether there is error in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex.
Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim.
App. 2003)). Where, as here, the appellant has properly preserved a claim of
10 charge error by an objection or request for instruction, we must reverse if the error
is calculated to injure the defendant’s rights, that is, if there was “some harm.”
Treviño v. State, 100 S.W.3d 232, 242 (Tex. Crim. App. 2003).
The Court of Criminal Appeals disavowed our reliance on the proffered
instruction in overruling Wilson’s legal sufficiency challenge. See State v. Wilson,
448 S.W.3d 418, 422–23 (Tex. Crim. App. 2014). In the context of Wilson’s
charge complaint, we look to whether the instruction properly set forth the law
applicable to the case.
The Court of Criminal Appeals held that the trial court erred in submitting
an instruction purporting to define a statutorily undefined term in Kirsch v. State,
357 S.W.3d 645 (Tex. Crim. App. 2012). The defendant was charged with DWI
under section 49.04 of the Texas Penal Code, which provides that “[a] person
commits an offense if the person is intoxicated while operating a motor vehicle in a
public place.” TEX. PENAL CODE ANN. § 49.04(a), quoted in Kirsch, 357 S.W.3d at
649–50. In that case, the defendant objected to the inclusion in the charge of the
definition of “operate” as “to exert personal effort to cause the vehicle to function.”
The Court looked to the Code Construction Act for guidance, which
provides that statutorily undefined words and phrases shall be “construed
according to the rules of grammar and common usage.” Kirsch, 357 S.W.3d at 650
(quoting TEX. GOV’T CODE ANN. § 311.011). Words that have a technical or
11 particular legal meaning may require definition in the charge, but common terms
that have not acquired a technical meaning and may be interpreted according to
their common usage need not be defined. Id.; see Medford v. State, 13 S.W.3d
769, 772 (Tex. Crim. App. 2000) (explaining that jurors should be provided
uniform definition of statutorily undefined terms like “arrest,” which have acquired
precise legal meaning).
The Court classified “operate” as a common term subject to interpretation
according to its common usage, observing that “nothing in our case law suggests
that a risk exists that jurors may arbitrarily apply an inaccurate definition to the
term ‘operate’ or that an express definition is required to assure a fair
understanding of the evidence.” Kirsch, 357 S.W.3d at 650. It concluded that,
“[a]lthough the definition set forth in the charge is an appropriate definition for an
appellate court to apply in assessing the sufficiency of the evidence to support the
‘operate’ element, instructing the jurors as to that definition in this case
impermissibly guided their understanding of the term” and improperly focused the
jury on certain evidence, making it an improper comment on its weight. See id. at
652.
In this case, the Court of Criminal Appeals abrogated earlier caselaw and
held that the term “repeated” in the telephone harassment statute “simply speaks in
terms of the number of telephone communications, it does not attempt to define the
12 required frequency of the communications or temporal proximity of one
communication to another.” Wilson, 448 S.W.3d at 424. As a common term, the
jury was entitled to rely on its understanding of “repeated.” See id. Thus, similar
to the challenged definition in Kirsch, the proffered definition would have
impermissibly confined the jury’s understanding of the term and improperly
focused them on the frequency of the calls and the length of time between them,
constituting an improper comment on the weight of the evidence. Accordingly, we
hold that the trial court correctly rejected the proffered definition. See Kirsch, 357
S.W.3d at 652.
II. Evidentiary Complaints
A. Standard of review
We review the trial court’s evidentiary rulings for abuse of discretion. See
Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009); Montgomery v.
State, 810 S.W.2d 372, 380, 391 (Tex. Crim. App. 1990). A trial court abuses its
discretion if its decision is outside the zone of reasonable disagreement or if it acts
without reference to guiding rules or principles. Burden v. State, 55 S.W.3d 608,
615 (Tex. Crim. App. 2001); Montgomery, 810 S.W.2d at 391. If the ruling was
correct under any theory of law applicable to the case, we must uphold the
judgment. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005).
13 B. Admission of extraneous-act evidence
Wilson challenges the trial court’s admission of evidence of many incidents
demonstrating her problematic and deteriorating behavior in the neighborhood
toward various neighbors over a span of several years. Wilson objected to the
evidence under Texas Rules of Evidence 403 and 404(b) before and during trial
and received running objections to the State’s use of the evidence throughout the
trial, preserving her challenge for appellate review. See Clark v. State, 365 S.W.3d
333, 339 (Tex. Crim. App. 2012) (citing TEX. R. APP. P. 33.1(a)(1)(A)).
Rule 404(b) provides that “[e]vidence of other crimes, wrongs or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” TEX. R. EVID. 404(b). The Supreme Court of the United States has
explained that
Rule 404(b) is rooted in the common-law tradition of disallowing the prosecution for using any evidence of a defendant’s evil character to establish probability of his guilt. . . . The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so over persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.”
Michelson v. United States, 335 U.S. 469, 475–76, 69 S. Ct. 213, 218 (1948),
quoted in Old Chief v. United States, 519 U.S. 172, 182, 117 S. Ct. 644, 650–51
14 (1997). Rule 404(b) further provides that evidence may be admissible for other
purposes, “such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” TEX. R. EVID. 404(b); see
Old Chief, 519 U.S. at 187, 117 S. Ct. at 653. For purposes of justifying the
admission of extraneous-offense evidence, intent is a contested issue if the required
intent for the primary offense cannot be inferred from the act itself or if the
defendant presents evidence to rebut the inference that the required intent existed.
Caro v. State, 771 S.W.2d 610, 617 (Tex. App.—Dallas 1989, no pet.); McGee v.
State, 725 S.W.2d 362, 364 (Tex. App.—Houston [14th Dist.] 1987, no pet.).
Wilson complains that the extraneous-offense evidence was inadmissible
character-conformity evidence that labeled Wilson as a neighborhood
troublemaker who should be convicted for her other bad behavior even if the
telephone calls themselves were not harassing in nature. The State, on the other
hand, argues that the extraneous-offense evidence was relevant to prove Wilson’s
intent to harass—an essential element of the offense—even if the calls otherwise
seemed infrequent and innocuous.
In the first appeal, the Court of Criminal Appeals observed that the
surrounding facts and circumstances are relevant to the issue of intent. In her
concurring opinion in this case, Justice Cochran explained that
A telephone harassment common plan or scheme might take the form of numerous telephone calls within a short period of time, all relating
15 to a single objective, or they might be calls that are repeated over a long period of time, but still relating to a single objective or goal.
For example, a person might make various unwanted telephone calls, in-person harassing statements, derogatory social-media posts, false reports to the police, animal control, or CPS, and perhaps play practical jokes on the victim—all interspersed over a year or more— with the ultimate goal of publicly humiliating the victim, making that person lose her job, making her move, or literally driving her crazy. The telephone calls might be repeated only three or four times, but, coupled with the evidence of other types of harassment, they are sufficient to prove the person’s scheme or plan and his intent to harass the victim.
Wilson, 448 S.W.3d at 429 (Cochran, J., joined by Johnson and Alcala, JJ.,
concurring). Although Wilson’s multiple disparate acts were not similar to the
telephone calls on their face, the calls were part of a common scheme or plan to
harass. The circumstances surrounding the 2006 peace bond hearing showed
Wilson’s motive for turning on Bailey, and, in many of the incidents in which
Wilson exhibited animosity toward Ballard, it was directed to some extent at
Bailey as well. The evidence of Wilson’s harassing conduct toward Bailey and
Ballard also tends to prove intent.
Even if evidence is admissible under Rule 404(b), it may be inadmissible
under Rule 403 if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, misleading the jury, considerations of
undue delay, or needless presentation of cumulative evidence. Casey v. State, 215
S.W.3d 870, 879 (Tex. Crim. App. 2007); see TEX. R. EVID. 403. We accord the
16 trial court substantial discretion in balancing the Rule 403 factors, mindful that
“the mere fact that a trial judge may decide a matter within his discretionary
authority in a different manner than an appellate judge in a similar circumstance
does not demonstrate that an abuse of discretion has occurred.” Montgomery, 810
S.W.2d at 380.
Rule 403 favors admissibility of relevant evidence, and the presumption is
that generally, relevant evidence will be more probative than unfairly prejudicial.
Id. Unfair prejudice does not mean the evidence injures the opponent’s case—“the
central point of offering evidence.” Rogers v. State, 991 S.W.2d 263, 266 (Tex.
Crim. App. 1999). “Rather[,] it refers to ‘an undue tendency to suggest decision
on an improper basis, commonly, though not necessarily, an emotional one.’” Id.
(quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)).
Although not limited to the following enumerated factors, courts should
balance the following factors under a Rule 403 analysis: (1) the probative value of
the evidence; (2) the potential of the evidence to impress the jury in some
irrational, yet indelible, way; (3) the time needed to develop the evidence; and
(4) the proponent’s need for the evidence. Prible v. State, 175 S.W.3d 724, 733
(Tex. Crim. App. 2005). The trial court is presumed to have conducted the proper
balancing test if it overrules a 403 objection, regardless of whether it conducted the
17 test on the record. See Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim.
App. 1997).
The evidence of Bailey’s friendship with Wilson, and its ending—due, in
substantial part, to Bailey’s participation in the Ballards’ peace bond hearing,
coupled with evidence of Wilson’s bad conduct toward Bailey for the years
following the hearing—led to their interactions at the time Wilson made the
telephone calls. After the peace bond hearing, Wilson perceived Bailey as being
aligned with Ballard and against Wilson. As a result, this evidence is probative of
Wilson’s intent to harass Bailey.
We do not reach the question of whether the trial court erred in admitting the
remaining extraneous-acts evidence—involving Wilson’s conduct toward the HOA
representative and his wife and in HOA meetings, the signs outside of her home,
and her bad behavior toward other neighbors—because, even assuming it did, it
did not affect her substantial rights. See TEX. R. APP. P. 44.2(b) (stating that non-
constitutional error “that does not affect substantial rights must be disregarded.”).
The erroneous admission of evidence does not affect substantial rights “if the
appellate court, after examining the record as a whole, has fair assurance that the
error did not influence the jury, or had but a slight effect.” Solomon v. State, 49
S.W.3d 356, 365 Tex. Crim. App. 2001), quoted in Motilla v. State, 78 S.W.3d
352, 355 (Tex. Crim. App. 2002); Martinez v. State, No. 01–10–00622–CR, 2011
18 WL 5026457, at *4 (Tex. App.—Houston Oct. 20, 2011, pet. ref’d) (mem. op., not
designated for publication). In determining the extent to which the error
influenced the jury, we consider the entire record, the nature of the evidence
supporting the verdict, the character of the alleged error and its connection with
other evidence in the case, and whether the State emphasized the error. Motilla, 78
S.W.3d at 355–56. The remaining extraneous-acts evidence was not highly
inflammatory and did not take a substantial amount of time for the State to present,
and was in many ways repetitive of the un-neighborly conduct that Wilson had
engaged in toward Bailey and Ballard.
At Wilson’s request, the trial court gave the jury a limiting instruction,
informing the jurors about the purpose of the evidence and warning that they
should not consider it for any purpose unless from the evidence presented it found
beyond a reasonable doubt that Wilson had committed the extraneous acts. This
instruction minimized the prejudice associated with the extraneous-acts evidence.
See Miller v. State, 196 S.W.3d 256, 268 (Tex. App.—Fort Worth 2006, pet. ref d);
Simpson v. State, 886 S.W.2d 449, 452 (Tex. App.—Houston [1st Dist.] 2003, pet.
ref’d); see also Robinson v. State, 701 S.W.2d 895, 899 (Tex. Crim. App. 1985)
(“A proper instruction on the limited use of an extraneous offense will also lessen
the prejudice.”). We must presume that the jury followed the trial court’s
19 instruction. See Gamez v. State, 737 S. W.2d 315, 324 (Tex. Crim. App. 1987).
We thus reject Wilson’s extraneous-offense evidentiary challenge.
C. Exclusion of interview recording
Relying on the rule of optional completeness, Wilson proffered the audio
recording of Officer Stevenson’s interview with Nicole Bailey in connection with
her cross-examination of the officer. Wilson contends that the trial court erred in
excluding the tape because it would have shown that Bailey was not as upset and
traumatized by Wilson’s actions closer in time to their occurrence as she seemed
during her trial testimony.
The rule of optional completeness “is designed to reduce the possibility of
the jury receiving a false impression from hearing only a part of some act,
conversation, or writing.” Walters v. State, 247 S.W.3d 204, 218 (Tex. Crim. App.
2007), quoted in Peña v. State, 353 S.W.3d 797, 814 (Tex. Crim. App. 2011).
Wilson did not seek to impeach Bailey with the recording, and the State did not
offer any part of the recording during Officer Stevenson’s direct testimony.
Stevenson testified that, during the interview, Bailey “exhibited an array of
emotions from laughing to crying to telling me she is scared.” This is a reasonably
accurate description of the recorded interview. We hold that the trial court acted
within its discretion in determining that the evidence presented by the State did not
create a false impression that admission of the recording would have corrected.
20 III. First Amendment Challenges
In a supplemental brief after remand, Wilson brings both facial and as-
applied First Amendment challenges to the telephone harassment statute, claiming
that it is void for vagueness and overbreadth.1 Wilson acknowledges that,
generally, a defendant may not raise a facial challenge based on constitutional
vagueness or overbreadth for the first time on appeal. See Karenev v. State, 281
S.W.3d 428, 434 (Tex. Crim. App. 2009). Wilson did not raise her facial challenge
in the trial court or in this court on direct appeal. But, relying on an opinion
dissenting from the denial of her motion for rehearing in the Court of Criminal
Appeals, in which the dissenting justices raised the potential for constitutional
infirmity in connection with the statute, she requests that we allow supplemental
briefing on the issue on remand. See Wilson, 448 S.W.3d at 430 (Alcala, J., joined
by Johnson and Cochran, JJ., dissenting from denial of rehearing).
Generally, an appellant must raise an issue in her principal brief to have it
reviewed on appeal. See TEX. R. APP. P. 38.3; Barrios v. State, 27 S.W.3d 313,
322 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). If an issue is raised later in
the appellate proceedings, Rule 38.7 provides that a “brief may be amended or
1 Wilson attempted to raise her First Amendment challenges in a motion for rehearing in the Court of Criminal Appeals. A majority of the Court denied the motion without opinion. See Wilson v. State, 448 S.W.3d 418, 430 (Tex. Crim. App. 2014) (denial of rehearing, followed by dissent from denial by Alcala, J., joined by Johnson and Cochran, JJ.).
21 supplemented whenever justice requires, on whatever reasonable terms the court
may prescribe.” TEX. R. APP. P. 38.7. We therefore consider whether justice
requires us to address the constitutional claims in Wilson’s supplemental briefing
even though she did not raise them until the case was on rehearing in the Court of
Criminal Appeals. We conclude that well-established error preservation rules
requiring that such complaints be made both in the trial court and in the initial
briefing on appeal preclude our consideration of these arguments on remand.
A. Facial challenge
First, the Texas Court of Criminal Appeals has held that an appellant may
not raise a facial challenge to the constitutionality of a statute for the first time on
appeal. Karenev, 281 S.W.3d at 434. The Court of Criminal Appeals premised its
holding in Karenev on the doctrine that “[s]tatutes are presumed to be
constitutional until it is determined otherwise” and “[t]he State and the trial court
should not be required to anticipate that a statute may later be held to be
unconstitutional.” Id.
Wilson concedes that she did not assert her facial First Amendment
challenge in the trial court. But she contends that the rationale that Karenev
applies to the State and the trial court should also apply to her—namely, that she
should not be required to have anticipated that the Court of Criminal Appeals
would re-interpret the telephone harassment statute in a way that arguably gives
22 rise to the constitutional infirmity that she asserts. She claims that, as a result of
the Court’s disavowal of its opinion in Scott, in which it had offered a definition
for the statute’s use of the term “repeated,” it is now impossible to know what
timing, frequency, and content of calls will make the caller subject to criminal
prosecution.
But any constitutional infirmity would lie with the statute as written at the
time of Wilson’s offense, and the members of the high court disagreed as to the
importance of the disavowed definition from Scott, with the majority concluding
that it did not shed light on the statutory elements of criminal telephone
harassment. Compare Wilson, 448 S.W.3d at 422 (majority opinion) (finding Scott
“neither controlling nor persuasive” and describing its definition of “repeated” as
ambiguous, inartful, and confusing) with id. at 427 (Cochran, J., joined by Johnson
and Alcala, JJ., concurring) (taking issue with majority’s rejection of discussion
“repeated in Scott” and opining that majority’s “new definition clearly invites a
vagueness and overbreadth challenge to the statute”).
Further, Wilson declined to advance a facial challenge to the telephone
harassment statute’s constitutionality in the trial court because, she contends, it
would have been futile. Futility does not excuse the requirement that a party must
raise a constitutional challenge to a statute in the trial court to preserve it for
appellate review. See Sanchez v. State, 120 S.W.3d 359, 365–67 (Tex. Crim. App.
23 2003); Schuster v. State, 435 S.W.3d 362, 364–65 (Tex. App.—Houston [1st Dist.]
2014, no pet.). Accordingly, we hold that Wilson waived her facial challenge and
thus decline to consider it, because it was first raised in supplemental briefing on
remand.
B. As-applied challenge
Second, with respect to her as-applied challenge, Wilson could have
presented her claim on direct appeal to this court. After the State presented its case
in the trial court, Wilson moved to dismiss the charge against her, contending that
the statute, as applied in the case against her, violated her First Amendment rights.
The trial court denied the motion. Wilson did not address this preserved challenge
in her principal brief to this Court. As a result, we have no basis for finding that
justice requires consideration of this argument now and decline to consider it.
Conclusion
We affirm the judgment of the trial court.
Jane Bland Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).