Wilson v. State, No. PD–0755–13.

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtKEASLER, J., delivered the opinion of the Court, in which KELLER, P.J., and MEYERS, PRICE, and HERVEY, JJ., joined.
Citation448 S.W.3d 418
Docket NumberNo. PD–0755–13.
Decision Date17 September 2014
PartiesElisa Merrill WILSON, Appellant v. The STATE of Texas.

448 S.W.3d 418

Elisa Merrill WILSON, Appellant
v.
The STATE of Texas.

No. PD–0755–13.

Court of Criminal Appeals of Texas.

Sept. 17, 2014.
Dissenting Opinion on Denial of Rehearing Dec. 10, 2014.


448 S.W.3d 420

Timothy A. Hootman, Houston, TX, for Appellant.

John R. Messinger, Assistant State Prosecuting Attorney, Lisa C. McMinn, State's Attorney, Austin, TX, for The State.

OPINION

KEASLER, J., delivered the opinion of the Court, in which KELLER, P.J., and MEYERS, PRICE, and HERVEY, JJ., joined.

Elisa Wilson appealed her telephone-harassment conviction claiming that the evidence was legally insufficient to establish that she made repeated telephone communications in a manner reasonably likely to annoy or alarm another. The court of appeals acquitted Wilson, finding that Wilson's calls were neither repeated nor reasonably likely to harass or annoy. We hold that (1) the phrase “repeated telephone communications” does not require the communications to occur within a certain time frame in relation to one another, and (2) a facially legitimate reason for the communication does not negate per se an element of the statute. We reverse and remand.

BACKGROUND

Complainant Nicole Bailey moved into the Kelliwood Terrace subdivision in Fort Bend County in 2000. She became acquainted and frequently socialized with Wilson, her next-door neighbor. By 2009, however, their relationship had soured and eventually led to Bailey filing a criminal complaint alleging that she was the victim of Wilson's harassment.

The information charging Wilson with harassment under Texas Penal Code § 42.07(a)(4)1 stated that “Elisa Merrill Wilson ... on or about April 06, 2009 [through] March 03, 2010, did then and there ... with intent to harass, annoy, alarm, abuse, torment or embarrass Nicole Bailey, make repeated telephone communications to Nicole Bailey in a manner reasonably likely to harass or annoy or alarm or abuse or torment or embarrass or offend the said Nicole Bailey.” The evidence at trial focused on six voicemail messages that Wilson left on Bailey's phone over a period of ten months. The jury heard testimony from Bailey regarding various interactions between the two during that time period.

On April 6th, 2009, Wilson left a message saying that a neighbor's dog was in her yard and that Bailey should inform the dog's owner. On June 11th, Wilson left a message stating that debris from construction being done on Bailey's driveway was running into a storm drain. Around the same time as this message, Wilson confronted

448 S.W.3d 421

Bailey on Bailey's driveway, yelling at her and taking pictures of her. Additionally, police and environmental authorities visited Bailey regarding the drainage, but no fines or sanctions were imposed. Bailey stated that the message and the related events left her “[a]nnoyed, intimidated, frightened, frustrated, [and] tired.”

On August 30th, Wilson again confronted Bailey and Bailey's boyfriend in a grocery store. Bailey testified that she and her boyfriend did not respond to Wilson's shouts and immediately went to the front of the store to check out. However, Wilson followed them and continued to yell, accusing Bailey of being a prostitute and Bailey's boyfriend of being a “pimp” and a “drug dealer.” On August 31st, the following day, Wilson left a message apologizing, but also stating that she had felt like Bailey had been attacking her. Bailey testified that she and her boyfriend had done nothing to provoke Wilson's behavior, and that this incident and the subsequent message made her feel harassed, annoyed, and alarmed. Six days later, on September 5th, Wilson left another message, demanding that Bailey never talk to her or approach her in public again.

On December 23rd, Wilson left a message complaining that the work Bailey was doing on her driveway was in violation of deed restrictions. On February 5th, 2010, Wilson left a message stating that her security cameras had observed Bailey leaving a newspaper on Wilson's lawn, and that Bailey should come retrieve it. Bailey testified that she had not left a newspaper on Wilson's lawn and that the message was an attempt to get her to come onto Wilson's property. She further testified that on the same day, Bailey and her boyfriend had encountered Wilson on the street in front of Bailey's house and that Wilson began screaming profanities and making accusations similar to those made in the grocery store in August. Bailey stated that these events made her feel alarmed and offended.

The jury found Wilson guilty of telephone harassment, and she was sentenced to twelve months' community supervision. Wilson appealed, arguing that the evidence did not support the jury's verdict because calls occurring over a period of ten months did not constitute “repeated” communications as required by statute, and because her messages were not objectively annoying, offensive, embarrassing, or abusive.2 The court of appeals agreed.3 The court first stated that those messages that were not within a thirty-day period of each other were not in close enough proximity to be considered a single episode, and thus did not constitute “repeated” communications.4 The court did identify two messages, those from August 31st and September 5th, that were within a thirty-day period. However, the court stated that the fact that Wilson made the September 5th message for a facially legitimate reason “negat [ed] any reasonable inference that Wilson left the message with the intent to harass Bailey, or that it was made in a manner reasonably likely to harass or annoy her.”5 As a result, the court held that no rational fact finder could have found Wilson guilty, and rendered a judgment of acquittal.

“REPEATED” COMMUNICATIONS

A person commits the offense of telephone harassment if she, “with intent to

448 S.W.3d 422

harass, annoy, alarm, torment, or embarrass another ... makes repeated telephone communications ... in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.”6 The main question we are presented with today is whether any or all of the six telephone messages left by Wilson over a period of ten months constitute “repeated” communications.

The court of appeals cited to this Court's decision in Scott v. State7 in holding that the messages that were not within thirty days of one another were not repeated communications.8 In Scott, we acknowledged that the offense of telephone harassment requires an actor to make “repeated telephone calls to the victim; one telephone call will not suffice.”9 The Court affixed the following annotation to this statement:

The term “repeated” is commonly understood to mean “reiterated,” “recurring,” or “frequent.” Here, we believe that the Legislature intended the phrase “repeated telephone communications” to mean “more than one telephone call in close enough proximity to properly be termed a single episode,” because it is the frequent repetition of harassing telephone calls that makes them intolerable and justifies their criminal prohibition.10

We find the Scott footnote neither controlling nor persuasive. First, Scott did not require this Court to determine whether “repeated” requires the actor's calls to exist in “close enough proximity to properly be termed a single episode.” In that case, the issue before the Court concerned whether § 42.07(a)(4) unconstitutionally infringed upon First Amendment rights.11 The Court concluded that it did not because “the statutory subsection does not implicate the free-speech guarantee of the First Amendment.”12 We agree with the parties that the footnote was dicta because it was unnecessary to Scott's reasoning or conclusion.

Second, the footnote contains no persuasive value because it lacks relevant reasoning. We take no issue with the definitions it offered from common dictionaries. However, the pronouncement of what the Legislature intended in passing § 42.07(a)(4) without any statutory interpretation is unsupportable. The Scott Court relied on a 1989 law-review article to support its definitive statement that “the Legislature intended the phrase ‘repeated telephone communications' to mean ‘more than one telephone call in close enough proximity to properly be termed a single episode[.]’ ”13 This definition does not come from the statutory text at issue or extratextual sources indicative of the Texas Legislature's intent. It was instead taken from a model statute proposed by the article's author in which the author defined “repeated telephone calls” as “mean[ing] more than one call in close enough proximity to rightly be termed a

448 S.W.3d 423

single episode.”14 Other than the similarly worded “repeated” phrase, there is no connection between the proposed statute and § 42.07(a)(4). Moreover, the article's proposed statute could not have influenced Texas's harassment statute because § 42.07(a)(4) was enacted approximately six years before the article was published.15

Third, the Court's definition of repeated itself causes confusion. Defining repeated to mean more than one call in close enough...

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84 practice notes
  • State v. Johnson, NO. PD–0228–14
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 7, 2015
    ...481, 130 S.Ct. 1577.70 Thompson, 442 S.W.3d at 339 ; Olvera v. State, 806 S.W.2d 546, 553 (Tex. Crim. App. 1991).71 See Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014) (disavowing statement in Scott, made in context of First Amendment challenge, that statutory term "repeated" could b......
  • Ex parte Perry, No. 03–15–00063–CR
    • United States
    • Court of Appeals of Texas
    • July 24, 2015
    ...personal privacy, and do so in a manner reasonably likely to inflict emotional distress.”), overruled on other grounds, Wilson v. State, 448 S.W.3d 418, 422–23 (Tex Crim.App.2014).183 Id. § 212.5(1) & cmt. 2, at 265 (defining stand-alone offense of “coercion” to require proof of certain thr......
  • Ex parte Poe, NO. 09–15–00373–CR
    • United States
    • Court of Appeals of Texas
    • April 20, 2016
    ...the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I.3 In Wilson v. State, 448 S.W.3d 418, 423 (Tex.Crim.App.2014), the Court of Criminal Appeals disavowed a footnote contained in Scott which related to the term “repeated,” and ......
  • Wagner v. State, NO. PD–0659–15
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 14, 2018
    ...unsolicited, and unwelcome communications in which he professes his love and begs her not to divorce him.").17 Wilson v. State , 448 S.W.3d 418, 424 (Tex. Crim. App. 2014).18 See Perry Educ. Ass'n v. Perry Local Educators' Ass'n , 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (Even ......
  • Request a trial to view additional results
84 cases
  • State v. Johnson, NO. PD–0228–14
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 7, 2015
    ...481, 130 S.Ct. 1577.70 Thompson, 442 S.W.3d at 339 ; Olvera v. State, 806 S.W.2d 546, 553 (Tex. Crim. App. 1991).71 See Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014) (disavowing statement in Scott, made in context of First Amendment challenge, that statutory term "repeated" could b......
  • Ex parte Perry, No. 03–15–00063–CR
    • United States
    • Court of Appeals of Texas
    • July 24, 2015
    ...personal privacy, and do so in a manner reasonably likely to inflict emotional distress.”), overruled on other grounds, Wilson v. State, 448 S.W.3d 418, 422–23 (Tex Crim.App.2014).183 Id. § 212.5(1) & cmt. 2, at 265 (defining stand-alone offense of “coercion” to require proof of certain thr......
  • Ex parte Poe, NO. 09–15–00373–CR
    • United States
    • Court of Appeals of Texas
    • April 20, 2016
    ...the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I.3 In Wilson v. State, 448 S.W.3d 418, 423 (Tex.Crim.App.2014), the Court of Criminal Appeals disavowed a footnote contained in Scott which related to the term “repeated,” and ......
  • Wagner v. State, NO. PD–0659–15
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 14, 2018
    ...unsolicited, and unwelcome communications in which he professes his love and begs her not to divorce him.").17 Wilson v. State , 448 S.W.3d 418, 424 (Tex. Crim. App. 2014).18 See Perry Educ. Ass'n v. Perry Local Educators' Ass'n , 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (Even ......
  • Request a trial to view additional results

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