NO. 12-05-00413-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
MARCUS DEWAYNE MATLOCK, § APPEAL FROM THE
APPELLANT
V. § COUNTY COURT AT LAW #3
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
A jury convicted Appellant Marcus Dewayne Matlock of the offense of interference with an emergency telephone call, and the trial court assessed his punishment at 220 days of confinement. Appellant contends the evidence is both legally and factually insufficient to support the verdict. We reverse and acquit.
Background
Appellant is the husband of the complainant, Lisa Matlock, and the father of her three children. At the time of the offense, they were living apart.
On February 18, 2005, Appellant had already been to Lisa’s apartment two or three times. In the late afternoon, Appellant returned again. Lisa was in the bedroom when Appellant entered the living room in her apartment through a window. She became aware that Appellant was in the apartment when she heard one of the children call out, “Daddy.” She picked up a cordless telephone, dialed 9-1-1, and entered the hallway where she encountered her husband. He grabbed the telephone from her hand just after the 9-1-1 operator had answered. They struggled for the telephone, and Appellant pushed her away as she tried to reach it. While Appellant still had the telephone, Appellant pushed the button ending the call. When the 9-1-1 operator called back, Appellant still had the telephone and the call went unanswered. When 9-1-1 received no answer to the return call, it dispatched a police officer to the apartment. An investigation followed resulting in Appellant’s arrest for interference with an emergency telephone call. See Tex. Pen. Code Ann. § 42.062(a) (Vernon Supp. 2005).
Legal and Factual Sufficiency
In Appellant’s two issues, he challenges the legal and factual sufficiency of the evidence to support the jury’s verdict.
Standard of Review
The standard for reviewing a legal sufficiency challenge 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, 317-18, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). In Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004), the court of criminal appeals explained the factual sufficiency standard.
There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.
Id. at 484-85.
Applicable Law
Interference with an emergency phone call is proscribed by Section 42.062(a) of the Texas Penal Code, which reads as follows:
(a) An individual commits an offense if the individual knowingly prevents or interferes with another individual’s ability to place an emergency telephone call or to request assistance in an emergency from a law enforcement agency, medical facility, or other agency or entity the primary purpose of which is to provide for the safety of individuals.
Tex. Pen. Code Ann. § 42.062(a). Emergency is defined as
(d) [A] condition or circumstance in which any individual is or is reasonably believed by the individual making a telephone call to be in fear of imminent assault or in which property is or is reasonably believed by the individual making the telephone call to be in imminent danger of damage or destruction.
Id. § 42.062(d). A reasonable belief is “a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.” Id. § 1.07(a)(42) (Vernon Supp. 2005).
A person commits an assault if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
Id. § 22.01(a).
Discussion
Appellant contends the interrupted call to 9-1-1 was not an emergency call, because Lisa never testified that she was in fear of imminent assault or that property was in imminent danger of damage or destruction.
There is no direct testimony that Lisa feared an imminent assault. When one of the children said “Daddy,” she knew Appellant was in the living room. She dialed 9-1-1. One would expect that a person in fear of assault would have remained in the bedroom to complete the call. Instead she immediately went into the hallway toward the living room where her husband was. The record before us is devoid of any evidence that Lisa was afraid of Appellant. Nor is there proof of any facts or circumstances from which we might infer that she reasonably feared he would assault her. There is no evidence that Appellant had ever struck her or had threatened to do so. When he snatched the telephone from her in the hallway, she tried to take it back, but he kept pushing her away. Her account does not indicate that she suffered even minor injury or pain in the scuffle over the telephone. She testified that “[h]e was grabbing on me. I was trying to push him out to get him out of the apartment, and he kept pushing me back, and we were just kind of tugging on each other.”
Appellant and Lisa were still married. There is no evidence of a history of violence in their marital relationship. No restraining order or other legal obstacle stood in the way of his returning home. The record contains no explanation of why Appellant was not supposed to be there or why Lisa wanted him out of the house, although there is a veiled suggestion that the landlord did not want Appellant on the premises.
Appellant left before the arrival of the police officer sent to investigate the unreturned call by the 9-1-1 operator. Lisa never attempted to leave the house to avoid Appellant.
In 2003, the legislature lowered the threshold definition of emergency by substituting “in fear of imminent assault” for “in imminent danger of serious bodily injury.”1 We are conscious that one reason prompting the change was to protect family violence victims calling for emergency assistance.2 However, the record includes no direct evidence that Lisa was afraid of Appellant nor does the record contain any facts or circumstances from which we might infer that when Lisa made the call she reasonably feared she was in danger of imminent assault.
Similarly, there is no direct evidence or any evidence from which we can infer that Lisa reasonably believed any property was in imminent danger of damage or destruction. Therefore, we are forced to conclude that there is no evidence that the interrupted 9-1-1 call was an emergency call. Appellant’s legal sufficiency issue is sustained.
Because we find the evidence legally insufficient to support Appellant’s conviction, we need not address his factual insufficiency issue.
Disposition
The judgment is reversed and a judgment of acquittal is rendered.
BILL BASS
Justice
Opinion delivered July 31, 2006.
Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.
(DO NOT PUBLISH)
1 Act of May 27, 2003, 78th Leg., R.S., ch. 460, 2003 Tex. Gen. Laws 1729; Act of April 16, 2003, 78th Leg., R.S., ch. 1164, 2003 Tex. Gen. Laws 3305.
2 Sen. Comm. On Admin., Bill Analysis (engrossed ver.), Tex. H.B. 778, 78th Leg., R.S. (2003).