Gillenwaters v. State, No. 03-04-00077-CR (TX 7/13/2005)
| Decision Date | 13 July 2005 |
| Docket Number | No. 03-04-00077-CR,03-04-00077-CR |
| Parties | DAVID CARROL GILLENWATERS, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
Appeal from the County Court at Law No. 2 of Williamson County, No. 03-1082-2, Honorable Timothy L. Wright, Judge Presiding.
Affirmed.
Before Chief Justice LAW, Justices B. A. SMITH and PURYEAR.
A jury convicted David Carrol Gillenwaters of telephone harassment. See Tex. Pen. Code Ann. § 42.07(a)(4) (West 2003). The jury determined that Gillenwaters made repeated telephone communications to Linda Ortiz with the intent to harass, annoy, and offend. The court assessed punishment at confinement for ten days and a $250 fine. On appeal, Gillenwaters contends that the evidence is legally insufficient to support the conclusion that he made telephone communications to Ortiz with criminal intent. Gillenwaters also asserts that section 42.07 of the Texas Penal Code is unconstitutionally vague and overbroad on its face and as applied in this case. For the reasons that follow, we affirm the judgment of the trial court.
Gillenwaters met Ortiz at an Austin area Wal-Mart where they both worked. They married in 2000, but, after Gillenwaters was fired in 2001, their relationship began to deteriorate. Ortiz filed for divorce in July 2002.
On the morning of October 22, 2002, Gillenwaters approached Ortiz in the Wal-Mart parking lot and began yelling loudly and cursing at her. Ortiz had to be escorted into the building by a male coworker. Gillenwaters began calling the Wal-Mart thirty minutes later. Afraid to speak to Gillenwaters, Ortiz had her coworkers continue to tell him that she was not available. However, Gillenwaters continued to call the Wal-Mart from five that morning until around one that afternoon. Although he was repeatedly asked to stop calling, Gillenwaters called about forty times an hour looking for Ortiz. Appellant's repeated calls made Ortiz so upset that she could not perform her duties at work. After one of her coworkers dialed 911, Ortiz complained to the police about receiving the calls. When Ortiz arrived home, she discovered that Gillenwaters also had left ten messages on her home answering machine. In one message, Gillenwaters stated: Gillenwaters also threatened: "I'm going to bury your ass," "You don't understand what you're doing," "[Y]ou bit off more than you can chew," and "I'm gonna press it and I'm gonna kill it."
Ortiz filed a written complaint with the police on October 24 but charges were not filed against the appellant at that time. After Ortiz filed the complaint with the police, Gillenwaters made additional calls to Wal-Mart looking for Ortiz. At one point, he called pretending to be a private investigator and told Ortiz's coworkers to warn her that a case was being built against her for promiscuity.
Gillenwaters was eventually charged with telephone harassment in an information alleging that on or about October 22, 2002:
"[W]ith intent to harass, annoy, alarm, abuse, torment, and embarrass Linda Ortiz, the said defendant made repeated telephone communications to Linda Ortiz in a manner resaonable [sic] likely to harass, alarm, abuse, torment, embarrass and offend Linda Ortiz, against the peace and diginity of the State."
The jury found Gillenwaters guilty, and the court assessed punishment at ten days' confinement and a $250 fine.
Gillenwaters raises four points of error on appeal. He first claims that the evidence is legally insufficient to support the guilty verdict because the State failed to prove that he made telephone communications to Ortiz with criminal intent. By his remaining three points, Gillenwaters contends that section 42.07 is unconstitutionally vague and overbroad on its face and as applied to him.
Evidence legally sufficient
The test for determining the legal sufficiency of the evidence to support a criminal conviction is whether, viewing the evidence in the light most favorable to the State, we can conclude that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Appellant was charged under section 42.07 of the penal code. A person commits an offense under this section, if, with intent to harass, he makes repeated telephone communications in a manner reasonably likely to harass, annoy, or offend another. Tex. Pen. Code Ann. § 42.07(a)(4) (West 2003). The intent of the accused is ordinarily determined by circumstantial evidence. See Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. 1978). On appeal, we do not inquire whether the evidence persuades us to find that a defendant had a particular intent; instead we determine whether a rational jury could have found the intent to commit the crime beyond a reasonable doubt. Brimage v. State, 918 S.W.2d 466, 476 (Tex. Crim. App. 1994).
Although there is no dispute that Gillenwaters repeatedly called Ortiz, he argues that the State failed to prove that he possessed the requisite criminal intent because: (1) there are alternate, innocent explanations for his behavior, and (2) it was not his sole intent to annoy, harass, or offend the complainant. He also contends that there was no evidence that he communicated with Ortiz. He further argues that the State improperly used evidence of incidents occurring after Ortiz filed her complaint. We find the evidence sufficient to establish intent for the following reasons.
Although Gillenwaters contends that there were potentially innocent explanations for his acts, the State is not required to disprove alternative reasonable hypotheses concerning an accused's intent. See Matson v. State, 819 S.W.2d 839, 845-46 (Tex. Crim. App. 1991); see also Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991) (), overruled in part on other grounds by Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000).
Second, the State is not required to prove that Gillenwaters's sole intent was to harass and annoy Ortiz. See Salisbury v. State, 867 S.W.2d 894, 896-97 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd.). In Salisbury, the appellant was convicted under section 42.07 but argued on appeal that the evidence was insufficient to prove that he intended to harass the complainant. Salisbury claimed that his constant calls to the complainant were not criminal because they were motivated by undying love. Id. The court rejected Salisbury's claim and held the evidence legally sufficient to support the conviction. Id. The Salisbury court reasoned:
The mere fact that a few of the communications sent by appellant contained references to appellant's love for the complainant, does not negate the majority of communications containing obscene content and the fact that the complainant did not wish to see or hear from appellant.
Similarly, Gillenwaters's assertion that there were other explanations for his conduct does not negate the evidence indicating that his actions were intended to annoy and harass Ortiz. Appellant admitted to the Austin Police Department that he made the continuous calls because Ortiz would not speak with him. The numerous messages Gillenwaters left on Ortiz's answering machine, especially the threatening messages, support the finding that his motives were not innocent. His calls made under the private-investigator pretense also reveal that he did not intend just to speak with Ortiz about a personal matter. Although there may have been alternative or additional reasons for Gillenwaters's behavior, there is also a substantial amount of evidence from which the jury could have concluded that Gillenwaters intended to harass and offend Ortiz.
The jury was entitled to infer an intent to "harass" from the conduct of Gillenwaters. Therefore, viewing the evidence in a light most favorable to the verdict, we hold that the jury could have found that Gillenwaters had the requisite criminal intent to commit the offense.
Gillenwaters also posits that the evidence was insufficient to support a conviction because he never actually "communicated" with the complainant. Although the term "communication" appears in section 42.07 of the penal code, the word is not defined by statute. When a statutory term is not directly defined, the term should be read in context and construed according to the rules of grammar and common usage. See Pettijohn v. State, 782 S.W.2d 866, 868 (Tex. Crim. App. 1989). A common definition of the term is "the expression or exchange of information by speech, writing, gestures, or conduct." Black's Law Dictionary (8th ed. 2004). Under this definition, Gillenwaters expressed information to Ortiz. Gillenwaters left messages on Ortiz's answering machine, and he repeatedly communicated messages to Ortiz while she was at work—information passed to Ortiz through her coworkers. It is not necessary for the appellant to speak directly to the complainant in order to communicate with her.
Finally, Gillenwaters claims that any messages left on Ortiz's answering machine on October 22, 2002, but after Ortiz first made a complaint to the police while at the Wal-Mart, cannot be used to establish his criminal intent. Gillenwaters has confused a complaint to police with the filing of a criminal complaint and information. The prosecution is limited to using proof of offenses occurring prior to the date of the indictment's presentment and within the statute of limitations period; the prosecution is not otherwise...
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