Battles v. State

• Decision Date: 28 March 2001
• Citation: 45 S.W.3d 694
• Parties: (Tex.App.-Tyler 2001) KEVA NELL BATTLES, APPELLANT v. THE STATE OF TEXAS, APPELLEE NO. 12-00-00104-CR
• Court: Texas Court of Appeals

Page 694

45 S.W.3d 694 (Tex.App.-Tyler 2001)

KEVA NELL BATTLES, APPELLANT v. THE STATE OF TEXAS, APPELLEE

NO. 12-00-00104-CR

Court of Appeals of Texas, Tyler

March 28, 2001.

APPEAL FROM THE COUNTY COURT AT LAW NO. 2 OF SMITH COUNTY, TEXAS

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.

DAVIS, Chief Justice

Appellant Keva Nell Battles pleaded not guilty to the misdemeanor offense of stalking. A jury found her guilty and assessed her punishment at confinement in the county jail for one year and a fine of $4,000.00. Both the fine and the period of confinement were probated. Appellant raises four issues on appeal. We affirm.

Background

This is a stalking case brought pursuant to Tex. Pen. Code Ann. § 42.072 (Vernon Supp. 2001). Appellant was charged with violating this statute by reason of her conduct toward the complainant, Lakesha Sheenay Ford ("Ford"). Appellant and Ford both had children fathered by the same man, John Toliver.

According to Ford, the stalking began in June 1999. Ford testified that on June 7, 1999, she noticed Appellant following her in a red Nissan Sentra as she took her infant son, Jonathan, to daycare and then as she continued on to work. The next day, June 8, 1999, she again saw Appellant following her, but she lost her in the morning traffic. Appellant followed Ford again the next day, June 9, 1999, first to the daycare, then to work, this time blowing her horn at Ford. Ford testified she believed Appellant returned to the daycare after following her to work on one or more occasions. This belief was corroborated by the administrator of the daycare.

The administrator of the daycare, Idella Pollard ("Pollard") testified that at about 7:00 a.m. on June 7 or 8, she saw Appellant at the front desk of the daycare reading the sign-in sheet. When she asked Appellant if she could help her, Appellant told her she was looking for a job. Pollard told her there were currently no openings but that she would give her an application if she wanted one. Appellant then made inquiry about Ford's minor son, Jonathan. Pollard asked her if she was a relative, and Appellant replied that she was Johnathan's cousin, and that she might have to pick him up sometime. Ford, however, told the jury that Appellant was not related to her in any way, and Appellant would have no reason to believe she would ever be called upon to pick up Johnathan from daycare. According to Pollard, Appellant left the daycare that morning without asking for an application.

Pollard also testified that the "next day or so" Ford appeared shaken when she arrived at the daycare. She asked Ford what was the matter, and Ford told her she was being stalked. Pollard went outside and saw Appellant sitting across the street in a red Nissan. Appellant came into the daycare later that morning, looked at the sign-in sheet again, and looked around as if she were looking for something or someone. Pollard confronted Appellant and told her to leave and not come back to the daycare. Appellant again left without getting an application.

Ford testified about a number of other instances of Appellant following her. Ford said that on June 23, 1999, Appellant again followed her to work, but Ford got behind her, got her license plate number and called 911. Before the police arrived, Appellant had gone. Ford also related another occasion when she and her son were driving in her car and Appellant pulled her car in front of her, slamming on her brakes, but Ford avoided a collision.

Additionally Ford testified that in late June 1999, Appellant called her on the phone at John Toliver's mother's house "talking a whole bunch of noise" about their respective relationships with John Toliver. Appellant told Ford that she should have somebody "watch over" her and her son, Johnathan. Ford testified that she believed Appellant's conduct was directed specifically at her, and that she was scared, fearing bodily injury for herself and her son. She feared that Appellant might hurt or kill Johnathan. Ford testified that Appellant still drove by her home but had not made any more threatening phone calls to her.

In open court, Ford identified Appellant as the person who had followed her repeatedly and called her on the phone.

Appellant testified on her own behalf. She told the jury she drove a red Nissan Sentra. Appellant said she had never had any conversation with Ford on the phone or in person, had never followed Ford in her car, and had never threatened Ford in any manner. Appellant denied all allegations. In response to questions by the prosecutor, Appellant maintained that Ford and Pollard were lying in court. Appellant told the jury she did not know of Johnathan's parentage until Ford testified in court.¹

Appellant testified that she went to the Mount Calvary Baptist Church daycare in June of 1999 seeking employment. The daycare is less than one mile from her home. Appellant did not apply for employment at any other daycare centers in June of 1999. Appellant said that she returned a second time to the daycare because on her first visit, she had been given an application for enrollment for a child. Appellant testified that she did get an application for employment on her second visit but never returned it.² Appellant denied that she had inquired about Johnathan during either visit. Appellant testified that during the second visit, Pollard confronted her and "made allegations about [appellant] trying to harm a child."

Appellant was charged by information with stalking Ford by, on more than one occasion and pursuant to the same scheme or course of conduct directed specifically at Ford, knowingly engaging in conduct, including following Ford, that Appellant knew or reasonably believed Ford would regard as threatening bodily injury or death for Ford, that caused Ford to be placed in fear of bodily injury or death for herself, and that would cause a reasonable person to fear bodily injury or death for herself.

Legal Sufficiency of the Evidence

In issues one and two, Appellant argues that the evidence is legally insufficient to support her conviction. The standard of review for legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998), cert. denied, 525 U.S. 1108, 119 S. Ct. 878, 142 L. Ed. 2d 777 (1999). The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). The jury may believe some witnesses and refuse to believe others, and it may accept portions of the testimony of a witness and reject other portions. Id.

The stalking statute reads in its entirety:

(a) A person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct, including following the other person, that:

(1) the actor knows or reasonably believes the other person will regard as threatening:

(A) bodily injury or death for the other person;

(B) bodily injury or death for a member of the other person's family or household; or

(C) that an offense will be committed against the other person's property;

(2) causes the other person or a member of the other person's family or household to be placed in fear of bodily injury or death or fear that an offense will be committed against the other person's property; and

(3) would cause a reasonable person to fear:

(A) bodily injury or death for himself or herself;

(B) bodily injury or death for a member of the person's family or household; or

(C) that an offense will be committed against the person's property.

(b) An offense under this section is a Class A misdemeanor, except that the offense is a felony of the third degree if the actor has previously been convicted under this section.

(c) In this section, "family," "household," and "member of a household" have the meanings assigned by Chapter 71, Family Code.

Tex. Pen. Code Ann. § 42.072 (Vernon Supp. 2001). The stalking statute includes multiple theories of criminal liability, but the charging instrument in the instant case alleges only one of those theories.³ See Clements v. State, 19 S.W.3d 442 (Tex. App.- Houston [1st Dist.] 2000, no pet. h.).

Under the information in the instant case, the State was required to prove beyond a reasonable doubt that on more than one occasion and pursuant to the same scheme or course of conduct directed specifically at Ford, (1)Appellant knowingly engaged in conduct, including following Ford, (2) Appellant knew or reasonably believed Ford would regard her conduct as threatening bodily injury to or the death of Ford; (3) Appellant's conduct caused Ford to be placed in fear of bodily injury or death for herself, and (4) Appellant's conduct would cause a reasonable person to fear bodily injury or death for herself. Appellant argues that the evidence is legally insufficient to prove "conduct" and elements (2) and (4).

Appellant's argument is founded, at least in part, on her assertion that the "conduct" element of the stalking statute does not include speech.⁴ This is simply incorrect. In the Penal Code, "conduct" is defined as "an act or omission and its accompanying mental state." Tex. Pen. Code Ann. § 1.07(a)(10) (Vernon 1994) (emphasis added). The Penal Code definition of "act" expressly includes "speech." See Tex. Pen. Code Ann. § 1.07(a)(1).

We must first determine...