Bader v. State, 13-88-404-CR

• Decision Date: 29 June 1989
• Docket Number: No. 13-88-404-CR,13-88-404-CR
• Citation: 773 S.W.2d 769
• Parties: Michael Evan BADER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 769

773 S.W.2d 769

Michael Evan BADER, Appellant, v. The STATE of Texas, Appellee.

No. 13-88-404-CR.

Court of Appeals of Texas Corpus Christi.

June 29, 1989.

John T. Quinn, Bryan, for appellant.

Jim Kuboziak, Bryan, for appellee.

Before NYE, C.J., and DORSEY and KENNEDY, JJ.

OPINION

DORSEY, Justice.

A jury found appellant, Michael Bader, guilty of telephone harassment and assessed a probated sentence of 180 days in jail plus a $1,000.00 fine. Appellant now challenges the trial court's judgment by three points of error. We affirm.

By his third point of error, appellant contends that the statute upon which his conviction is based, Tex.Penal Code Ann. § 42.07 (Vernon Supp.1989), is unconstitutionally vague and overbroad.

In May v. State, 765 S.W.2d 438, 440 (Tex.Crim.App.1989), the Court of Criminal Appeals held that section 42.07, prior to amendment in 1983, was unconstitutional. That former law reads, in pertinent part:

(a) A person commits an offense if he intentionally:

* * * * * *

(2) threatens, by telephone or in writing, to take unlawful action against any person and by this action intentionally, knowingly, or recklessly annoys or alarms the recipient or intends to annoy or alarm the recipient, or

(3) places one or more telephone calls anonymously, at an unreasonable hour, in an offensive and repetitious manner, or without a legitimate purpose of communication and by this action intentionally, knowingly, or recklessly annoys or alarms the recipient.

The May Court, citing Kramer v. State, 605 S.W.2d 861 (Tex.Crim.App.1980), concluded that the statute was void for vagueness because of its failure to 1) adequately define what annoys and alarms people and 2) specify whose sensitivities must be offended. May, 765 S.W.2d at 440.

Section 42.07 was amended in 1983 and now reads as follows:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he:

* * * * * *

(2) threatens, by telephone or in writing, in a manner reasonably likely to alarm the person receiving the threat, to inflict serious bodily injury on the person or to commit a felony against the person, a member of his family, or his property;

(3) conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury;

(4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another;

It is apparent that the legislature, in amending section 42.07, corrected the defects of the former statute. The new law clearly delineates "what alarms people." Such actions include threatening a person or member of his family with serious bodily injury, and falsely reporting the death or injury of another. The statute also defines "annoy" as the act of making repeated telephone communications or allowing the telephone to ring repeatedly. In addition, section 42.07 specifies whose sensitivities are relevant; it does so by providing that the foregoing actions, to be unlawful, must be performed "in a manner reasonably likely" to "annoy" or "alarm" the person receiving the call. We conclude that the amended section 42.07 (which applies to the instant offense committed on January 14, 1988), is not unconstitutionally vague or overbroad. Point three is overruled.

Appellant argues by his first point of error that the evidence is insufficient to establish that he made telephone calls to the complainant, Cynthia Snyder, "with intent to harass, annoy, alarm, abuse, torment, or embarrass" her. In reviewing the sufficiency of the evidence, an appellate court looks at all the evidence in the light most favorable to the verdict or judgment and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234 (Tex.Crim.App.1989) (not yet reported).

The intent of the accused is ordinarily determined not by direct proof but rather is inferred from circumstantial evidence. Garcia v. State, 649 S.W.2d 70, 72 (Tex.App.--Corpus Christi 1982, no pet.); Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App.1978). That is, intent may be determined from the accused's words, actions and conduct. Price v. State, 410 S.W.2d 778, 780 (Tex.Crim.App.1967).

At trial, Snyder testified that appellant moved into her house after answering her ad for a roommate. She asked appellant to leave after three weeks. Subsequently, appellant began telephoning her repeatedly. On January 13, 1988, he called Snyder a total of fifteen times. He called two more times on January 14. On January 15, appellant called twelve times; he allowed the phone to ring over thirty times during the last call. Snyder stated that each time she spoke with appellant, she told him to leave her alone and then hung up. Sh...