Collection Consultants, Inc. v. State

• Decision Date: 03 May 1977
• Docket Number: Nos. 53162,53163,s. 53162
• Parties: COLLECTION CONSULTANTS, INC., Appellant, v. The STATE of Texas, Appellee. Stella THORNTON, alias Sadie Vance, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 787

556 S.W.2d 787

COLLECTION CONSULTANTS, INC., Appellant, v. The STATE of Texas, Appellee.

Stella THORNTON, alias Sadie Vance, Appellant, v. The STATE of Texas, Appellee.

Nos. 53162, 53163.

Court of Criminal Appeals of Texas.

May 3, 1977 State's Motion for Rehearing Granted Oct. 5, 1977 Appellants' Motions for Rehearing Denied Nov. 2, 1977.

Ralph B. Shank, Ivan Irwin, Jr., Robert B. Cousins, Jr., James E. Sutton, Dallas, for appellants.

Carol S. Vance, Dist. Atty., and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

These are appeals from convictions for the offense of harassment by the use of a telephone. V.T.C.A. Penal Code, Section 42.07(a)(2). The appellants were prosecuted in a joint trial. The appellant Thornton was alleged to be an agent of the appellant corporation, acting in behalf of the corporation and within the scope of her employment. See V.T.C.A. Penal Code, Section 7.22. The appellant corporation was assessed a fine of $1,000. The appellant Thornton's punishment is confinement in the county jail for 30 days and a fine of $150; Thornton was granted misdemeanor probation for a period of 180 days.

The appellants have urged four grounds of error, but they have not contended that it was error to prosecute them under a general penal statute when a specific statute was applicable. As unassigned error under Article 40.09, Sec. 13, V.A.C.C.P., we must reverse the convictions because a specific statute prohibits the conduct which the State attempted to allege as an offense and the punishment assessed is greater than that provided by the special statute.

Only a short recitation of the testimony of the complaining witness is necessary. Ervin O. Grice testified that he received several telephone calls from a Sadie Vance representing Collection Consultants concerning a debt Grice allegedly owed Shamrock Oil Company. Grice received the first telephone call at work at 4:00 p.m. on July 15, 1974; he informed Sadie Vance that according to his records he did not owe Shamrock the amount of money they demanded and that he would prove it in court. On July 19, 1974, Grice received six telephone calls from Sadie Vance and two calls from a Gene Thomas of Collection Consultants. On July 22nd Grice received a series of four calls from Sadie Vance. On July 23rd Grice received calls from Sadie Vance at 1:41 p.m., 1:45 p.m., and 1:46 p.m.; at 1:59 p.m. he received a call from a Gene Thomas. Grice recognized the voice of Gene Thomas as the same person who had previously called him as Bob Grant of Collection Consultants. Later in the afternoon on July 23rd Grice received a call from Sadie Vance at 4:00 p.m., a call from Gene Thomas at 4:13 p.m., and two more calls from Sadie at 4:21 and 4:22 p.m. Grice made a tape recording of all the calls he received on July 23rd. Grice testified that he had heard appellant Stella Thornton speak and that her voice was the same voice he had heard on the telephone as Sadie Vance.

The State alleged and the proof shows that the telephone calls were "in connection with the collection of and attempt to collect a debt alleged to be owed by a consumer, namely Ervin O. Grice." Grice testified that he had purchased gasoline at a Sigmor service station and presented his Texaco credit card. The debt Grice allegedly owed Sharmock Oil Company arose from these purchases.

V.T.C.A. Penal Code, Section 42.07(a)(2), provides:

"(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;"

An offense under this section is a Class B misdemeanor, with a possible punishment of a fine not to exceed $1,000 or confinement in jail for a term not to exceed 180 days, or both a fine and imprisonment.

Article 5069-11.03, V.A.C.S., which was enacted at the same term of the Legislature as V.T.C.A. Penal Code, Section 42.07(a)(2), provides in part:

"In connection with the collection of or attempt to collect any debt alleged to be due and owing by a consumer, no debt collector may oppress, harass, or abuse any person by methods which employ the following practices:

An offense under this section is a misdemeanor punishable by a fine of not less than $100 nor more than $500. Article 5069-11.09, V.A.C.S.

It is a well settled rule of statutory construction that when two statutes cover the same subject matter, one general and the other special, the special statute will control. Sheffield v. State, 165 Tex.Cr.R. 354, 307 S.W.2d 100 (1957); Hines v. State, 515 S.W.2d 670 (Tex.Cr.App.1974); Cuellar v. State, 521 S.W.2d 277 (Tex.Cr.App.1975).

Recently this Court held that the State could not successfully prosecute a defendant under a general penal statute when a specific statute was applicable. Alejos v. State, Tex.Cr.App., 555 S.W.2d 444 (1977). In Alejos the defendant was convicted under the general statute for Evading Arrest, defined in V.T.C.A. Penal Code, Section 38.04. The facts showed that Alejos failed to stop his motor vehicle after a police officer in a marked police car signaled for him to stop by using emergency lights and siren. Alejos contended that he should have been charged under Article 6701d, Section 186, V.A.C.S., which makes it unlawful for a driver of a motor vehicle to flee or attempt to elude a pursuing police vehicle. It was said that Article 6701d, Section 186, V.A.C.S. and V.T.C.A. Penal Code, Section 38.04, may be construed together, and they can be harmonized by giving effect to the special statute when it is applicable to the facts.

In Edwards v. State, 166 Tex.Cr.R. 301, 313 S.W.2d 618 (1958), the defendant was convicted of driving while intoxicated and the jury assessed punishment under the general enhancement statute, Article 62, V.A.P.C. (1925). However, Article 802b, V.A.P.C. (1925), provided the punishment for each and every subsequent conviction for the offense of driving while intoxicated. The Court held that the Legislature had provided by special statute the punishment for subsequent offenses of driving while intoxicated and that the special statute must control over the general enhancement of punishment statute.

V.T.C.A. Penal Code, Section 42.07(a)(2), is a general statute which provides a penalty for threatening to take unlawful action against any person by telephone. Article 5069-11.03, V.A.C.S., provides a different penalty for a debt collector to harass any person by causing a telephone to ring repeatedly or continuously in connection with the collection of or attempt to collect a debt alleged to be owed by a consumer. Under the facts presented here, the appellants can only be charged under Article 5069-11.03, V.A.C.S. Article 5069-11.03, supra, and V.T.C.A. Penal Code, Section 42.07(a)(2) when construed together can be harmonized with the specific controlling over the general statute. The punishment assessed is more than that provided by the special statute.

In the event of further prosecution the State should replead the offense under the specific provisions of Article 5069-11.03, V.A.C.S.

The judgments are reversed and the causes remanded.

Opinion approved by the Court.

OPINION ON STATE'S MOTION FOR REHEARING

GREEN, Commissioner.

These appeals are from convictions, in a joint trial, for the offense of harassment by the use of a telephone. V.T.C.A. Penal Code, Sec. 42.07(a)(2). Appellant Thornton was alleged to be an agent of appellant Collection Consultants, Inc., acting in behalf of the corporation and within the scope of her employment. See V.T.C.A. Penal Code, Sec. 7.22. Appellant corporation was assessed a fine of $1,000. Thornton's punishment was confinement in the county jail for 30 days and a fine of $150, the confinement being probated for a period of 180 days.

On original submission, in reversing the judgments we held as follows:

"V.T.C.A. Penal Code, Section 42.07(a)(2), is a general statute which provides a penalty for threatening to take unlawful action against any person by telephone. Article 5069-11.02, V.A.C.S., provides a different penalty for a debt collector to harass any person by causing a telephone to ring repeatedly or continuously in connection with the collection of or attempt to collect a debt alleged to be owed by a consumer. Under the facts presented here, the appellants can only be charged under Article 5069-11.03, V.A.C.S. Article 5069-11.03, supra, and V.T.C.A. Penal Code, Section 42.07(a)(2) when construed together can be harmonized with the specific controlling over the general statute. The punishment assessed is more than that provided by the special statute."

By its motion for rehearing, the State requests that we reconsider the statutes as applied to "the facts presented here."

The opinion on original submission gives a short recitation of applicable testimony of the complaining witness Grice. We adopt that recitation, and add thereto the following:

Grice testified that each time the individual appellant called him she gave her name as Sadie Vance. On each occasion he told her he had paid the debt in question and stated, "I would gladly prove my point in Small Claims or Civil Court." After testifying of her telephone calls of July 15, July 19, July 22, and July 23 as stated in the original opinion, Grice testified further:

"Q Mr. Grice, once again calling your attention to the calls that were made to you by the person you knew as Sadie Vance, did that person ever admit that she knew that what she was doing was violating the law by continuing to call you?

"A Yes.

"Q What were How did that come about? In what words?

"A Well, when she'd call me I'd answer the phone and after I found out who it was, I'd tell Sadie that she was not permitting me to do my work and this constitutes...