Pomier v. State

Decision Date21 October 2010
Docket NumberNo. 14-09-00247-CR.,14-09-00247-CR.
Citation326 S.W.3d 373
PartiesTholonaus Darrell POMIER, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Mark W. Stevens, Galveston, for appellant.

B. Warren Goodson, Jr., Galveston, for state.

Panel consists of Chief Justice HEDGES and Justices YATES and BOYCE.

OPINION

LESLIE B. YATES, Justice.

Appellant Tholonaus Darrell Pomier raises ten issues challenging the trial court's judgment sentencing him to twenty years' imprisonment following his conviction for the felony offense of stalking. In issues one and two, appellant contends the trial court erred in denying his motion to quash the indictment and that his punishment was improperly enhanced. In issues three and four, he argues the evidence is legally and factually insufficient to support his conviction. In issues five and six, he claims his conviction violates the Double Jeopardy Clauses of the United States and Texas Constitutions. In his remaining issues, appellant asserts the Texas stalking statute is unconstitutional on its face and violates the prohibitions against ex post facto laws contained in the United States and Texas Constitutions. We affirm appellant's conviction as reformed, reverse the trial court's judgment sentencing appellant to twenty years' imprisonment, and remand the case for a new punishment hearing.

Factual and Procedural Background

Appellant and Barbara Simmons were involved in a two to three year relationship in the early 1990s. In February 1994, Simmons gave birth to a daughter fathered by appellant. Prior to the child's birth, Simmons decided to leave appellant because he had become physically abusive. At trial, Simmons testified that appellant beat her on several occasions, including once shortly after she became pregnant. Based on these incidents of abuse, Simmons obtained a protective order in July 1993, which prevented appellant from communicating with or coming near her. Simmons also testified that on a separate occasion in the summer of 1993, she suffered severe injuries after appellant broke into her apartment and beat her with a crowbar. Following this incident, appellant was arrested and charged with burglary of a habitation. Appellant pleaded guilty to a reduced charge of aggravated assault and was sentenced to six years' deferred community supervision. In October 1995, appellant was sentenced to five years' imprisonment after violating the terms of his community supervision.

At some point after appellant was released from prison, he began driving past Simmons's home and demanding to see their daughter, threatening to kick Simmons's door in, and constantly calling Simmons at her home and work. Simmons filed for another protective order in 2002 because of this behavior. Simmons testified that she also applied for protective orders in 2005 and 2007 because appellant was "harassing and bothering" her and her daughter. According to Simmons, appellant would not leave her alone and would contact her each time an order was set to expire and say "you can't stop me from coming around."

On April 25, 2007, appellant was placed in jail for nonpayment of child support following an enforcement hearing attended by appellant and Simmons. Appellant was released from jail on April 27, 2007. The following day, appellant went to Simmons's apartment and demanded to see his daughter. Simmons testified that appellant told her he was going to hurt her and "get" her because "he was tired of spending all of his money getting out on bail and stuff like that." Simmons called the police after appellant left her home. Officer William Ashton went to Simmons's apartment and described Simmons as "scared" and "petrified" upon his arrival. Officer Ashton arranged for Simmons to speak with Officer Crystal Teague, a member of the police department's domestic violence unit, that same day. Officer Teague testified Simmons "was afraid that [appellant] was going to kill her. He had come to her home. He had made a threat against her and she believed that he was going to kill her." Appellant was subsequently indicted for stalking Simmons.

Appellant represented himself at trial. A jury convicted appellant and, after finding an enhancement allegation true, assessed punishment at twenty years' confinement in the Texas Department of Criminal Justice, Institutional Division. This appeal followed.

Sufficiency Of The Evidence

In his third and fourth issues, appellant argues the evidence is legally and factually insufficient to support his conviction. While this appeal was pending, the Court of Criminal Appeals held that only one standard should be used to evaluate the sufficiency of the evidence in a criminal case: legal sufficiency. Brooks v. State, 323 S.W.3d 893, 894 (Tex.Crim.App.2010) (plurality opinion); id. at 926 (Cochran, J., concurring). Accordingly, we review the sufficiency of the evidence in this case under a rigorous and proper application of the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), legal sufficiency standard. Brooks, 323 S.W.3d at 905 (plurality opinion).

A. Standard of Review

When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 898. This court does not sit as a thirteenth juror and may not substitute its judgment for that of the fact finder by reevaluating the weight and credibility of the evidence. Id. at 901; Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999); see also Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986) (stating the jury may choose to believe or disbelieve any portion of the testimony at trial). We defer to the fact finder's resolution of conflicting evidence unless the resolution is not rational. See Brooks, 323 S.W.3d at 902 n.8, 905. Our duty as a reviewing court is to ensure that the evidence presented actually supports a conclusion that the defendant committed thecrime. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007).

B. Applicable Law

In order to obtain a conviction, the State was required to prove that appellant (1) on more than one occasion and pursuant to the same scheme or course of conduct directed specifically at Simmons (2) knowingly engaged in conduct, including following Simmons, (3) that he knew or reasonably believed Simmons would regard as threatening bodily injury or death to her, (4) that caused Simmons to be placed in fear of bodily injury or death, and (5) that would cause a reasonable person to fear bodily injury or death for himself or herself. Tex. Penal Code Ann. § 42.072(a) (West 2003).

C. Sufficiency Analysis

Appellant was charged with stalking Simmons from 1993 to 2007. In order to prove the elements of the charged offense, the State presented evidence of appellant's history of violent and threatening behavior directed at Simmons. Simmons testified that appellant beat her on several occasions, including once while she was pregnant and again when he broke into her apartment in 1993. Simmons's former neighbor, Willis Vallier, testified that he often heard screaming and yelling coming from Simmons's apartment. On one occasion in 2003 or 2004, Simmons rushed into Vallier's apartment. According to Vallier, Simmons was "hysterical, crying, [and] screaming [for] somebody to go upstairs and get her baby." Vallier saw appellant chasing Simmons down the stairs and trying to strike her with his fist. Appellant attempted to follow Simmons into Vallier's apartment, but Vallier prevented him from entering. Simmons also testified that appellant threatened to "hurt her" in April 2007 because he had been jailed for failing to pay her child support. According to testimony from Officers Ashton and Teague, Simmons appeared to be in fear for her life after appellant came to her home in April 2007.

The State also presented evidence that, after appellant was released from prison, he began continuously calling Simmons at her home and work and threatening to kick in her door. Simmons and her daughter each testified that they saw appellant drive past their home on many occasions, and Simmons stated that she often saw appellant sitting in a vehicle parked outside her home. Appellant's behavior caused Simmons to file for multiple protective orders to prevent him from contacting or coming near her or their daughter. Simmons stated she had to keep filing for protective orders because appellant would not leave her alone and "would always come back" after an order expired. Simmons ultimately testified that each time appellant came by her home or called her, she felt "[s]cared for my safety and scared for my life" because he had beaten her "so many times all he could do was kill me next."

Appellant presents three arguments on appeal for why the evidence is insufficient: (1) his interactions with Simmons were too "widely separated in time" to be considered evidence of any scheme or course of conduct directed at Simmons; (2) contradictory, inconsistent, and embellished testimony offered by Simmons shows she did not regard his conduct as threatening her with bodily injury or death; and (3) appellant could not have known or reasonably believed Simmons would regard his conduct as threatening her with bodily injury or death. We disagree, and we address each of these arguments in turn.

First, section 42.072 does not specify a time period in which the scheme or course of conduct must occur; rather, itmerely requires that the accused's conduct must occur "on more than one occasion and pursuant to the same scheme or course of conduct." Tex. Penal Code Ann. § 42.072(a); see also Hutton v. State, 313 S.W.3d 902, 908 (Tex.App.-Amarillo 2010, no pet.) (concluding the plain meaning of section 42.072 does not require "a particular or minimum interval of time for events to occur on 'more than one occasion' "). Thus, by definition, the offense of stalking "contemplates...

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