Wilson, Elisa Merrill

Opinion

PD-0623-15 PD-0623-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 5/26/2015 3:09:11 PM Accepted 5/27/2015 2:00:49 PM

No. ________________ ABEL ACOSTA CLERK

In The COURT OF CRIMINAL APPEALS OF TEXAS Austin, Texas

Elisa Merrill Wilson, Petitioner v. State of Texas, Respondent

On Appeal from County Court at Law No. 2 Fort Bend County, Texas and from the First Court of Appeals, Houston, Texas Trial Court Case No. 10CCR149142 Court of Appeals Case No. 01-11-01125-CR

PETITION FOR DISCRETIONARY REVIEW

Timothy A. Hootman SBN 09965450 2402 Pease St Houston, TX 77003 713.247.9548 713.583.9523 (f) May 27, 2015 Email: thootman2000@yahoo.com ATTORNEY FOR PETITIONER, ELISA MERRILL WILSON

Oral argument requested 1 Identity Of Judges, Parties, and Counsel The following judges, parties, and counsel are associated with this case in

the trial court and on appeal:

Trial judge: Hon. Jeffrey A. McMeans Judge, County Court at Law No. 2 301 Jackson St Richmond, TX 77469 Justices from the First Hon. Sherry Radack, Chief Justice Court of Appeals: Hon. Jane Bland, Justice Hon. Rebeca A. Huddle, Justice 301 Fannin St Houston, TX 77002-2066

Defendant/Appellant: Elisa Merrill Wilson Attorney for appellant David R. Bires (in the trial court): SBN 02335000 J.P. Borgan Chase Bldg 712 Main St, Ste 2400 Houston, TX 77002 Attorney for appellant Timothy A. Hootman (in the court of appeal SBN 09965450 and the Court of Criminal 2402 Pease St Appeals): Houston, TX 77003

Appellee: The State of Texas Attorneys for appellee John J. Harrity III (in the trial court): District Attorney for Fort Bend County, TX Laurel Ellisor Assistant District Attorney 301 Jackson St, Rm 101 Richmond, TX 77469

Attorneys for appellee Abdul Faruki (in the court of appeals Assistant District Attorney 2 and the Court of Criminal 301 Jackson St, Rm 101 Appeals): Richmond, TX 77469 Lisa C. McMinn State Prosecuting Attorney John R. Messinger Assistant State’s Attorney P.O. Box 13046 Austin, TX 78711

3 Table Of Contents IDENTITY OF JUDGES, PARTIES, AND COUNSEL.…………………………………………… 2 TABLE OF CONTENTS……………………………………………………………………………… 4 INDEX OF AUTHORITIES………………………………………………………………………….. 5 STATEMENT REGARDING ORAL ARGUMENT ……………………………………………….. 6 STATEMENT OF CASE ………………………………………………………………………………8 STATEMENT OF PROCEDURAL HISTORY ………………………………………………………9 QUESTIONS PRESENTED FOR REVIEW…………………………………………………………10 ARGUMENT ………………………………………………………………………………………….11 I. Introduction. ……………………………………………………………….…..11 II. Texas preservation-of-error rules. ………………………………. 16 III. Federal due process and the Texas preservation-of- error rules. …………………………………………………………………….. 18 IV. Vagueness and overbreadth.…..……………………………………. 22 PRAYER …………………………………………………………………………………………….. 33 CERTIFICATE OF WORD COUNT………………………………………………………………. 35 CERTIFICATE OF SERVICE ………………………………………………………………………35 APPENDIX…………………………….. Memorandum Opinion on Remand from the First Court of Appeals

4 INDEX OF AUTHORITIES Texas cases: Ex parte Halstead, 147 Tex. Crim. 453, 182 S.W.2d 479 (1944)……………… 25 Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009)……… 10, 14, 16, 17 Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996)…………………….. 27, 32 May v. State, 765 S.W.2d 438 (Tex. Crim. App. 1989)……………………………25 Osterberg v. Peca, 12 S.W.3d 31 (Tex. 2000)……………………………………….. 21 Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002)…………………….. 24 Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010)……………………passim State v. Wilson, 448 S.W.3d 418 (Tex. Crim. App. 2014)……………….. passim Wilson v. State, 431 S.W.3d 92 (Tex. App.—Houston [1st Dist.] 2013)……… 11 U.S. Supreme Court cases: Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)………………………… 27 Broadrick v. Oklahoma, 413 U.S. 601 (1973)………………………………….. 27, 28 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)……………………………..28 Curtis Pub. Co. v. Butts, 368 U.S. 130 (1967)……………………………..………….19 Freytag v. Comm’r, 501 U.S. 868 (1991)……………………………………………….19 Grayned v. Rockford, 408 U.S. 104 (1972)…………………………………….. 25, 26 New York v. Ferber, 458 U.S. 747 (1982)…………………………………………….. 27 Spence v. Washington, 418 U.S. 405 (1974)………………………………………….30 United States v. Olano, 507 U.S. 725 (1993)…………………………………………. 19 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)……………………………………………………………………………………….25 Virginia v. Hicks, 539 U.S. 113 (2003)………………………………………………….26 Federal court of appeals cases:

5 Gormley v. Director, Conn. State Dep’t of Prob., 632 F.2d 938 (2nd Cir. 1980)………………………………………………………………………………………..29 Kramer v. Price, 712 F.2d 174 (5th Cir. 1983)…………………………………………27 Thorne v. Bailey, 846 F.2d 241 (4th Cir. 1988)……………………………………… 28 Out-of-state cases: McKillop v. State, 857 P.3d 358 (Alaska Ct. App. 1993)………………………… 30 State v. Thorne, 333 S.E.2d 817 (W. Va. 1985)……………………………………… 31

6 STATEMENT REGARDING ORAL ARGUMENT Petitioner requests oral argument. This Court has given

conflicting messages as to when an argument may be raised for the

first time on appeal. Whether or if application of waiver and

forfeiture rules applies when a subsequent re-interpretation of a

statute has caused a party to “waive” an argument, or whether in

those situations such rules violate due process, raise significant

questions that warrant oral argument, especially in light of the

complexities of working through these questions under the

circumstances of this case.

7 STATEMENT OF THE CASE A jury found appellant guilty of telephone harassment. The

court of appeals reversed and acquitted. This Court reversed and

remanded to have the remaining issues addressed that had been

raised in appellant’s brief in the court of appeals. On remand, the

court of appeals affirmed the conviction.

8 STATEMENT OF PROCEDURAL HISTORY On May 9, 2013, the First Court of Appeals acquitted appellant

in a published opinion. Wilson v. State, 431 S.W.3d 92 (Tex. App.—

Houston [1st Dist.] 2013). This Court reversed and remanded to have

the remaining issues that had been raised in appellant’s brief in the

court of appeals addressed. State v. Wilson, 448 S.W.3d 418 (Tex.

Crim. App. 2014).

On March 31, 2015, the First Court of Appeals affirmed

appellant’s conviction with an unpublished opinion. Wilson v. State,

No. 01-11-01125-CR (Tex. App.—Houston [1st Dist.] 2015, March 31,

2015).

On April 14, 2015, appellant filed a motion for rehearing which

was denied on April 30, 2015.

9 QUESTIONS PRESENTED FOR REVIEW

Question one: Does Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009) bar Wilson from arguing for the first time, after the court of appeals and this Court have issued opinions, that the harassment statute is vague and overbroad in violation of the First and Fourteenth Amendment to the U.S. Constitution?

Question two: Does application of Texas’s preservation-of-error rules to bar Wilson from raising her vagueness and overbreadth challenges to the harassment statute after the court of appeals and this Court have issued opinions—in a supplemental brief on remand—violate federal due process under the Fifth and Fourteenth Amendments of the U.S. Constitution?

Question three: Is section 42.07(a)(4) of the harassment statute as re- interpreted in Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014) vague and overbroad on its face?

Question four: Is section 42.07(a)(4) of the harassment statute as re- interpreted in Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014) vague and overbroad as applied to the facts developed in the trial court regarding appellant’s conviction?

10 ARGUMENT I. Introduction.

Wilson was convicted of the portion of the telephone

harassment statute that says:

A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he … makes repeated telephone communications … in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another. TEX. PENAL CODE § 42.07(a)(4). At the time of Wilson’s conviction, the relevant authority interpreting

this section was Scott v. State, 322 S.W.3d 662 (Tex. Crim. App.

2010), which held that “repeated telephone communications” meant

“more than one telephone call in close enough proximity to properly

be termed a single episode”. Id. at 669 n.12. Based on the Scott

interpretation, Wilson argued in the court of appeals that there was

legally insufficient evidence to support her conviction because the

telephone calls in her case were more than thirty days apart. Wilson

v. State, 431 S.W.3d 92, 94 (Tex. App.—Houston [1st Dist.] 2013)

rev’d, State v. Wilson, 448 S.W.3d 418 (Tex. Crim. App. 2014). The

court of appeals, also relying on the Scott interpretation, agreed with

Wilson and held that because the calls were not within a thirty-day

11 period of each other there was legally insufficient evidence to sustain

the conviction. Id. at 96 (citing Scott).

On the State’s petition for discretionary review, this Court

reversed the court of appeals’ judgment of acquittal by abrogating

Scott and re-interpreting the meaning of “repeated telephone

communications” such that (1) the phrase repeated telephone

communications no longer requires the communications to occur

within a certain time frame in relation to one another, and (2) “a

facially legitimate reason for the communication does not negate per

se an element of the statute.” Wilson, 448 S.W.3d at 420. On

rehearing in this Court, Wilson attempted to raise for the first time on

appeal the vagueness and overbreadth of the portion of the statute

that she was convicted of violating by arguing:

Under this Court’s prior interpretation of the telephonic harassment statute there was no need for Wilson to challenge the vagueness or overbreath of the statute because, under Scott, there was legally insufficient evidence to sustain Wilson’s conviction based on the evidence presented at trial. Because of this, Wilson pursued her defense in the trial court and on appeal on the basis of insufficiency, without making the unnecessary and, under Scott, unviable argument that the statute was vague or subject to an overbreath challenge. The court of appeals agreed with Wilson that the evidence was insufficient under Scott and

12 acquitted. This Court, by reinterpreting the language used in the statute, has created a vagueness and overbreath problem with the statute, which must now be raised by appellant—under the Scott interpretation of the statute there was no clear vagueness or overbreath problem, but under the Wilson interpretation there is. Namely, that the statute as interpreted by this Court in its opinion reversing the court of appeals’ decision to acquit Wilson does not require the telephonic communications to occur within a certain time frame in relation to one another and that a facially legitimate reason for the communications do not negate an element of the statute. This interpretation causes the statute to be vague and overbroad, according to Supreme Court jurisprudence. See Aplt. M. Rhr. at 4-5 filed in the Court of Criminal Appeals. The

majority of the Court denied the motion for rehearing without

opinion, but Justice Alcala wrote an opinion in dissent (joined by

Justices Johnson and Cochran) noting that, “Because there had been

no reason to challenge the vagueness or overbreadth of the telephone

harassment statute as this Court had interpreted its requirements in

Scott, appellant had no reason to assert that challenge until this

Court’s reformulation of the law in this case.” Wilson, 448 S.W.3d at

431. Thus, this Court did not reach the merits of Wilson’s vagueness

and overbreadth argument.

13 On remand in the court of appeals, Wilson filed a motion for

leave to file a supplemental brief, which was granted. In Wilson’s

supplemental brief she argued that (1) Karenev v. State does not bar

her from raising for the first time on appeal and after remand that the

harassment statute as re-interpreted by Wilson is vague or overbroad,

(2) the statute is vague and overbroad as re-interpreted by Wilson on

its face, and (3) the statute is vague and overbroad as re-interpreted

by Wilson as applied.

The court of appeals affirmed the conviction and wrote in its

memorandum opinion that “well-established error preservation rules

requiring that such complaints [e.g., the facial challenge] be made

both in the trial court and in the initial briefing on appeal preclude

our consideration of these arguments on remand” and therefore “we

hold that Wilson waived her facial challenge and thus decline to

consider it, because it was first raised in supplemental briefing on

remand.” Memo. Op. at 22, 24. Therefore, Wilson filed a motion for

rehearing arguing:

If it is true that Texas law results in a waiver of the facial challenge complaint in this case by not having raised it before Scott was abrogated by Wilson, then those Texas waiver rules violate appellant’s right to due process under the fifth and fourteenth amendments of

14 the federal constitution. That is, state preservation rules that are so harsh as to violate federal due process are void under the supremacy clause. The motion for rehearing was denied without opinion.

Thus, two procedural and two substantive questions are

presented: (1) Do Texas preservation-of-error rules bar Wilson from

raising the vagueness and overbreadth challenges to the Wilson re-

interpretation of section 42.07(a)(4) of the harassment statute? If so,

(2) do those rules, under the circumstances of this case, violate

Wilson’s right to federal due process? (3) Does the Wilson re-

interpretation render section 42.07(a)(4) vague and overbroad on its

face? And, (4) does the Wilson re-interpretation cause section

42.07(a)(4) to be vague and overbroad as applied?

15 II. Texas preservation-of-error rules.

Question one: Does Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009) bar Wilson from arguing for the first time, after the court of appeals and this Court have issued opinions, that the harassment statute is vague and overbroad in violation of the First and Fourteenth Amendment to the U.S. Constitution?

Generally, a vagueness and overbreadth challenge may not be

raised for the first time on appeal. See Karenev v. State, 281 S.W.3d

428, 434 (Tex. Crim. App. 2009). This is because the “State and the

trial court should not be required to anticipate that a statute may later

be held to be unconstitutional” absent an initial challenge in the trial

court. Id. This rationale applies to Wilson in this case who should

not be required to have anticipated that section 42.07(a)(4) of the

harassment statute would be re-interpreted by this Court as a

prerequisite to challenging the yet-to-exist re-interpretation later on.

If such a rule were taken seriously by appellate lawyers, anticipatory

preservation steps inundate appellate records and briefs in a very

confusing and inefficient way. This petition should be granted to

clarify whether that really is the state of Texas preservation-of-error

16 law in the context of significant statutory re-interpretations by this

Court. If is suggested that this is not the law in Texas as evidenced

by Karenev and Justice Alcala’s dissent regarding denial of rehearing

in Wilson.

This same rationale applies to Wilson in this case; namely, she

should not be required to anticipate that a statute will be re-

interpreted by this Court barring her from raising the constitutional

infirmities of the new interpretation because she did not raise the

challenge for the first time in the trial court. The concurring opinion

in Karenev by Justice Cochran (joined by Justices Price, Womack and

Johnson) makes clear that in the appropriate circumstance, a

vagueness and overbreadth challenges can be raised for the first time

on appeal. Id. at 435-41. This case presents such an appropriate case,

and therefore, the court of appeals should have addressed the

vagueness and overbreadth challenges presented in Wilson’s

supplemental brief on remand. In short, Wilson should be allowed to

raise the vagueness and overbreadth challenges for the first time on

appeal, and in the court of appeals, and this Court should grant this

petition because the court of appeals’ holding on remand that Wilson

17 “waived her facial challenge” is in conflict with Karenev and Justice

Alcala’s statement in her dissenting opinion in Wilson.

III. Federal due process and the Texas preservation-of-error rules.

Question two: Does application of Texas’s preservation-of-error rules to bar Wilson from raising her vagueness and overbreadth challenges to the harassment statute after the court of appeals and this Court have issued opinions—in a supplemental brief on remand—violate federal due process under the Fifth and Fourteenth Amendments of the U.S. Constitution?

It would make no sense for Wilson to have argued in her first

brief on appeal that “under Scott there is insufficient evidence, but

just in case Scott is overruled by way of a possible future

reinterpretation of section 42.07(a)(2) by the Court of Criminal

Appeals different from Scott thus allowing for the record in this case

to contain sufficient evidence, that reinterpretation gives rise to a

facial challenge which is being raised now.” This speculative

argument is what Wilson would have had to lodge under the court of

appeals’ failure-to-preserve holding if she wanted to have the merits

18 addressed after Scott was abrogated by Wilson—of course it could not

have been addressed before Scott was abrogated because the facial

challenge alone arose after Scott was abrogated. If the court of

appeals is correct and this truly is the state of Texas preservation

rules, then they violate federal due process in the procedural context

of this case.

Of course, an objection must be raised timely, meaning when

the opportunity first arises. Timeliness problems are presented when

a right or rule is first created after trial but before resolution of a case

on appeal. In these situations, federal due process requires that a

party be allowed to raise the objection for the first time on appeal.

See Curtis Pub. Co. v. Butts, 368 U.S. 130 (1967). It is illogical and

unfair to require an objection before the problem even exists. Texas

preservation rules to the contrary violate federal due process.

Whereas waiver involves the “intentional relinquishment of a

known right,” forfeiture implies the “failure to make the timely

assertion of a right.” United States v. Olano, 507 U.S. 725, 733

(1993); see also Freytag v. Comm’r, 501 U.S. 868, 895 n.2 (1991). In

this case, this distinction is important because, clearly, Wilson did not

waive the facial challenge complaint. Thus, this court of appeals’

19 conclusion that the error was not properly preserved under Texas

preservation law turns on the timeliness question in the forfeiture

context.

Texas preservation of error rules require that an objection be

made when the opportunity first arises. If the rule in Texas is that a

party must object to an adverse law that does not even exist as a

prerequisite to challenging the yet-to-exist law later, then application

of that Texas rule to this case violates federal due process because it is

unfair to impose such an impossible burden on a party. Such a

burden violates basic notions of rule-of-law—if there is a rule, a party

is entitled to rely on it without being required to make futuristic

ascertainments about the rule’s being abrogated. See LON L. FULLER,

THE MORALITY OF LAW 106 (rev. ed. 1969). Perhaps the most basic

element underlying all of the criteria of the rule of law is that human

actors can fairly comply with the law. If human actors cannot fairly

comply with the law, not only does that particular law fail to obey the

rule of law, but it also calls into question the entire enterprise of law

as a set of rules that can and should govern human conduct. For

Texas preservation-of-error rules to be so esoteric and Byzantine to

require inclusion of predictions of how a statute will be reinterpreted

20 violates fundamental notions of rule of law and therefore federal due

process.

Federal constitutional law in this regard states that when

deciding whether a party has waived its federal constitutional claims

in state court, courts look first to procedural rules that govern when a

party must raise those claims and then consider whether those

procedural rules are adequate as a matter of federal substantive

constitutional law to protect the constitutional interests at stake.

Osterberg v. Peca, 12 S.W.3d 31 (Tex. 2000). Moreover, regarding

first amendment issues, as in this case, waiver must be shown by clear

and compelling circumstances. Id. A court has a heightened duty to

protect fundamental rights, such as those protected by the first

amendment of the federal constitution. Application of state

preservation of error rules so as to avoid reaching the merits of a

fundamental rights issue can itself be a violation of federal due

process. Application of forfeiture or waiver to Wilson in this case,

where she raised the facial challenge to TEX. PENAL CODE ANN. §

42.07(a)(4) when the opportunity first arose, violates Wilson’s right

to due process of law as protected by the fifth and fourteenth

amendment of the federal constitution. Therefore, if it is true that

21 Texas law is as the court of appeals held that Wilson did not preserve

the constitutional issues she seeks to raise, that Texas law violates

federal due process. These important, and fundamental, questions

should be addressed by this Court via this petition for discretionary

review.

IV. Vagueness and overbreadth.

Question three: Is section 42.07(a)(4) of the harassment statute as re- interpreted in Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014) vague and overbroad on its face? Question four: Is section 42.07(a)(4) the harassment statute as re- interpreted in Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014) vague and overbroad as applied to the facts developed in the trial court regarding appellant’s conviction?

Subsection (a)(4) of the harassment statute, as re-interpreted

by this Court in Wilson, is void for vagueness and overbreadth in

violation of the First and Fourteenth Amendments to the United

States Constitution. That is, the statute is “facially” unconstitutional

without reference to the particular facts presented in the trial court 22 record of this case; the statute is “as applied” unconstitutional

because, as re-interpreted by this Court in Wilson, it is inherently

vague in reference to Wilson’s conduct. More specifically, as

interpreted, subsection (a)(4)’s phrase “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”

is unconstitutionally vague because it is impossible for Wilson or any

other citizen to know what is prohibited. This Court has concluded in

Wilson that the legislature intended by the statute (1) that the phrase

repeated telephone communications does not require the

communications to occur within a certain time frame in relation to

one another, and (2) that a facially legitimate reason for the

communication does not negate per se an element of the statute. See

Wilson. This broadened re-interpretation from what was prohibited

under the Scott interpretation makes it impossible to know when

calls beyond one call and what content of a telephone call are

tantamount to criminal conduct, thereby implicating vagueness and

overbreadth problems “facially” with respect to all citizens and “as

23 applied” with respect to the specific conduct presented in the record

When reviewing a challenge to the constitutionality of a statute,

it is presumed that the statute is valid and that the legislature acted

reasonably in enacting the statute. Rodriguez v. State, 93 S.W.3d 60,

69 (Tex. Crim. App. 2002). Here, it should be kept in mind that the

in Scott and Wilson this Court was interpreting the legislative intent

as to what the legislature meant when using the words employed in

the harassment statute. That is, the Court was interpreting the

statute; it was not considering whether the statute violated the federal

constitution. Interestingly enough, the new and broad Wilson re-

interpretation gives rise to the question of whether the statute is

overly vague and overly broad, a question that was not addressed by

this Court. Now that this Court has clarified what the legislature

intended by use of the words contained in the statute, the

constitutional questions are ripe for consideration. And, to repeat, as

a starting point, it is presumed that the statute is constitutional.

Rodriguez, 93 S.W.3d at 69.

Additionally, if First Amendment freedoms are not implicated,

Wilson must show that the statute is unconstitutional as applied to

24 her conduct. See Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 495 (1982). On the other hand, if the

statute’s language is capable of reaching protected speech or

otherwise threatens to inhibit the exercise of constitutional rights, a

stricter vagueness standard applies than when the statute regulates

unprotected conduct. Id. at 497. That is, when speech is at stake,

Wilson is allowed to raise a facial vagueness challenge without

showing the statute is vague as applied to her conduct because the

otherwise continued existence of the statute in unnarrowed form

would tend to suppress constitutionally protected rights. Id.

A legislative enactment is void for vagueness if its prohibitions

are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104,

108 (1972); May v. State, 765 S.W.2d 438, 439 (Tex. Crim. App.

1989); see also Ex parte Halstead, 147 Tex. Crim. 453, 182 S.W.2d

479, 482 (1944). Although overbreadth and vagueness challenges

often appear in tandem, they are distinct concepts. “An overbroad

statute is one designed to burden or punish activities which are not

constitutionally protected, but … includes within its scope activities

which are protected by the First Amendment.” John E. Novak, et. al.,

Constitutional Law, ch. 18, § III at 868 (2d ed. 1983); see also

25 Virginia v. Hicks, 539 U.S. 113, 123 S.Ct. 2191, 2196 (2003). In

contrast, a statute is unconstitutionally vague if it fails to give “a

person of ordinary intelligence a reasonable opportunity to know

what is prohibited, so that he may act accordingly” or if it allows for

arbitrary and discriminatory enforcement by failing to provide an

objective standard for those who are charged with enforcing or

applying the law. Grayned, 408 U.S. at 108.

The U.S. Supreme Court’s Grayned opinion elaborates on the

vagueness problem:

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person or ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone that if the

26 boundaries of the forbidden areas are clearly marked. Id. at 108-09 (quotations omitted); see also Long v. State, 931 S.W.2d

285, 287 (Tex. Crim. App. 1996); Kramer v. Price, 712 F.2d 174, 176-

77 (5th Cir. 1983) (case striking down pre-1983 version of the Texas

harassment statute), vacated on reh’g, 716 F.2d 284 (1983), trial

court aff’d after statute repealed, 723 F.2d 1164 (1984).

On the other hand, the purpose of the overbreadth doctrine is to

protect those persons who, although their speech or conduct is

constitutionally protected, “may well refrain from exercising their

rights for fear of criminal sanctions susceptible of application to

protected expression.” New York v. Ferber, 458 U.S. 747, 768 (1982)

(quotation omitted). While the Constitution “gives significant

protection from overbroad laws that chill speech within the First

Amendment’s vast and privileged sphere,” Ashcroft v. Free Speech

Coalition, 535 U.S. 234, 244 (2002), the application of the

overbreadth doctrine is “strong medicine” to be employed “only as a

last resort,” Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). Thus,

“[i]t remains a matter of no little difficulty to determine when a law

may properly be held void on its face and when such summary action

is inappropriate.” Broadrick, 413 U.S. at 615 (quotations omitted).

27 The overbreadth of a statute must be real and substantial, judged in

relation to the statute’s plainly legitimate sweep. See Broadrick, 413

U.S. at 615. The criterion of substantial overbreadth precludes a

court from invalidating a statute on its face simply because of the

possibility, however slight, that it might be applied in some

unconstitutional manner. See Secretary of State of Md. V. J.H.

Munson Co., 467 U.S. 947, 964-65 (1984). If a statute is found to be

substantially overbroad, the statute must be invalidated unless the

court can supply a limiting construction or partial invalidation that

narrows the scope of the statute to constitutionally acceptable

applications. Broadrick, 413 U.S. at 615-16.

It is well established that “[r]esort to epithets or personal abuse

is not in any proper sense communication of information or opinion

safeguarded by the Constitution, and its punishment as a criminal act

… raise[s] no question under that instrument.” Cantwell v.

Connecticut, 310 U.S. 296, 309-10 (1940); see also Chaplinsky v.

New Hampshire, 315 U.S. 568, 572 (1942). As one federal court has

stated, “ ‘[p]rohibiting harassment is not prohibiting speech, because

harassment is not … protected speech.’ ” Thorne v. Bailey, 846 F.2d

241, 243 (4th Cir. 1988), quoting State v. Thorne, 333 S.E.2d 817, 819

28 (W. Va. 1985) (upholding West Virginia’s telephone harassment

statute). Such “speech” is more properly termed conduct and is

therefore not subject to First Amendment protection. Thorne, 846

F.2d at 243 (telephone harassment statute “prohibits conduct and not

protected speech”); Gormley v. Director, Conn. State Dep’t of Prob.,

632 F.2d 938, 941-42 (2nd Cir. 1980) (Connecticut’s telephone

harassment statute “regulates conduct, not mere speech. What is

proscribed is the making of a telephone call, with the requisite intent

and in the specified manner.”).

On the other hand, a telephone call can be, and generally is,

speech and not conduct, thereby invoking First Amendment

protection. Whether the communications in this case are protected

speech versus prohibited conduct is the essential gravamen. The

legislative intent as reflected in the statute (according to Wilson)

moves the line dividing these two concepts significantly, thereby

implicating the vagueness and overbreadth problems. That is, under

the Wilson re-interpretation of what the legislature intended by the

statute (1) the phrase repeated telephone communications does not

require the communications to occur within a certain time frame in

29 relation to one another, and (2) a facially legitimate reason for the

communication does not negate per se an element of the statute.

“In deciding whether particular conduct possesses sufficient

communicative elements to bring the First Amendment into play,

[the U.S. Supreme Court has] asked whether ‘[a]n intent to convey a

particularized message was present, and [whether] the likelihood was

great that the message would be understood by those who viewed it.”

Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v.

Washington, 418 U.S. 405, 410-11 (1974)).

According to at least one appellate opinion that is in keeping

with U.S. Supreme Court admonishments, a telephonic harassment

statute is not vague and overly broad if it is written so as “to prohibit

telephone calls only when the call has no legitimate communicative

purpose—when the caller’s speech is devoid of any substantive

information and the caller’s sole intention is to annoy or harass the

recipient.” McKillop v. State, 857 P.3d 358, 364 (Alaska Ct. App.

1993). The legislative intent regarding the harassment statute (as

clarified by Wilson) is squarely opposed to this refrain. Under the

Wilson re-interpretation the “facially legitimate reason for the

communication does not negate per se an element of the statute.”

30 That is, any call after the first harassing call at any time is subject to

criminal liability, even if the content of the second call contains

objectively non-harassing substantive content and is made more than

thirty days after the first call. Given that this is what the legislature

intended by adopting the harassment statute, the vagueness and

overbreadth doctrines are violated because from a “facial attack”

perspective in is impossible to know what calls are criminal—

apparently any calls beyond one are criminal if they are annoying,

such as annoying sales calls, political campaign calls, or calls from

exes. See Wilson, (Keller, P.J., concurring) and (Cochran, J.,

concurring). And from an “as applied” perspective, appellant’s

conduct as described in the court of appeals’ original opinion was

neutral in content and spread out of a relatively long period of time

which would be hard are impossible to know is criminal under the

statute. First amendment freedoms are implicated because the re-

interpretation covers not only calls intended to be harassing speech,

which is not protected, but also non-harassing speech that is intended

to communicate proper information and ideas. The statute’s

amazingly broad attempt to define what annoys and alarms people

and its failure to specify beyond (1) that the phrase repeated

31 telephone communications does not require the communications to

occur within a certain time frame in relation to one another, and (2)

that a facially legitimate reason for the communication does not

negate per se an element of the statute causes it to be

unconstitutionally vague on its face and as applied to the facts of this

case. The vagueness of the proscribed conduct described could be

reduced, for example, by linking it to more specific conduct, such as a

specific time frame between calls, a specific number of calls beyond

which is harassing, or facially neutral communications as being

beyond the reach of the statute. See Long, 931 S.W.2d at 293-94

(examining the Fifth Circuit analysis of the re-1983 Texas harassment

statute in Kramer).

Finally, it should be noted that for this Court to conclude that

the harassment statute is vague and over broad in violation of the

First and Fourteenth Amendments to the U.S. Constitution does no

offense to the Wilson opinion by this Court because there the Court

was not confronted with the constitutional challenge, was only

focusing on the statutory construction question of what exactly the

legislature intended by the words employed in the statute, and

therefore was deferring to later courts, such as this Court now or the

32 court of appeals on remand to take the first bite at determining the

constitutional infirmities of the statute.

PRAYER Petitioner prays that this petition be granted, that briefing on

the merits be ordered, and that this case be reversed and the original

judgment of acquittal be reinstated, or that the case be remanded to

the court of appeals for further consideration.

Respectfully submitted,

/s/Timothy A. Hootman_____ TIMOTHY A. HOOTMAN SBN 09965450 2402 Pease St Houston, TX 77003 713.247.9548 713.583.9523 (f) E-mail: thootman2000@yahoo.com

ATTORNEY FOR PETITIONER

33 CERTIFICATE OF WORD COUNT I hereby certify that, in accordance with Rule 9.4 of the Texas

Rules of Appellate Procedure, that the number of words contained in

this document are 4,445 according to the computer program used to

prepare this document.

Dated: May 26, 2015. /s/Timothy A. Hootman_____ Timothy A. Hootman

CERTIFICATE OF SERVICE I hereby certify that, in accordance with Rule 9.5 of the Texas

Rules of Appellate Procedure, I have served the forgoing document

upon the following attorneys by electronic service:

John J. Harrity III Assistant District Attorney Fort Bend County 301 Jackson St, Rm 101 Richmond, TX 77469 Lisa C. McMinn John R. Messinger P.O. Box 13046 Austin, TX 78711

Dated: May 26, 2015. /s/Timothy A. Hootman_____ TIMOTHY A. HOOTMAN

34 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).