NO. 12-07-00077-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DAIN JACKSON SAWYER, § APPEAL FROM THE 420TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § NACOGDOCHES COUNTY, TEXAS
MEMORANDUM OPINION
A jury convicted Dain Jackson Sawyer of stalking the complainant, Thandra High. In four issues, Appellant challenges the legal and factual sufficiency of the evidence, contends that his motion for directed verdict should have been granted because of an incorrect date in the indictment, and argues that the trial court erred in admitting evidence under Rule 404(b) of the Texas Rules of Evidence. We affirm.
Background
On October 31, 2005, a violent storm with lightning and driving rain struck the Stephen F. Austin State University campus in Nacogdoches, Texas. From her dormitory, North Hall, High observed Appellant outside in an open area constructing what appeared to be an improvised fort out of metal tables and metal chairs. High, concerned for Appellant’s safety, immediately contacted the campus police and waited on the porch of the university for them. While High waited, Appellant ran up to the porch, grabbed her by the arm, and asked her to pray with him. High told Appellant, “No, let go.” When she tried to pull away from Appellant, he would not let her go. After a struggle, she was finally able to escape Appellant and run into North Hall. Appellant remained on the porch screaming unintelligibly before the campus police arrived.
On November 3, High was eating lunch with friends at a cafeteria in the University Center, the Hungry Jack Inn. Appellant walked past High and her friends, sat down at an outside table, and began staring in at her. He later walked inside the Hungry Jack Inn, approached High and her friend Stephen Ross, and told both of them that he loved them. Appellant then walked outside the building but continued to observe High and her friends once outside. When High got up to throw away her trash, Appellant came back in the building towards her. High began to run away from him and he chased her. When she turned around, he came within a few inches of her face and said, “Don’t run from me.” He then laughed and walked away.
High promptly reported this incident to the campus police. As a result, Detective Michael Stephenson met with Appellant to discuss Appellant’s conduct. Detective Stephenson told Appellant that his actions were scaring High and other students. They did not feel safe with the way he was acting towards them. He further told Appellant that he should not be openly praying for people and touching them when they did not want to be touched. Detective Stephenson also warned Appellant about chasing people because it scared them and made them fear for their safety.
Three days later, on November 6, High was working on campus at the front desk of another dormitory. Appellant, who was a resident of the dormitory, approached High about using the remote control for the television in the adjoining room. After he began watching television, Appellant began to yell at the television. This scared High and she phoned a dormitory resident assistant. When the resident assistant arrived, Appellant began ripping papers over a trash can and screaming the word “chicken” at High. This terrified High. She ran into a nearby bathroom and locked herself inside. She also called the campus police using a mobile telephone.
Next, on November 10, High and Ross were having lunch again at the Hungry Jack Inn. Ross spotted Appellant sitting at a nearby table staring at High. High turned around and saw Appellant staring at her. She remained at the table for about ten minutes before Appellant’s staring made her so uncomfortable that she got up from the table and walked away. She reported this incident to the campus police.
On November 29, High was walking from a class next to the Rusk Building on campus with Ross and another friend, A.J. Maldonado. She was walking with Ross and Maldonado because she feared for her safety due to Appellant’s presence on campus. As they were walking, Appellant approached them and said, “Please don’t call the police any more.” He also told High that he forgave her and that he loved her. High told Appellant, “Leave me alone.” Appellant responded by continuing to walk towards her and repeating, “Don’t call the police any more,” “I love you,” and “I forgive you.” As he got closer, High drew a pepper spray canister that her parents had given her to protect herself from Appellant and also began calling the campus police using her mobile telephone. Upon seeing her make this call, Appellant ran away.
After completing her semester final examinations, High left the university and enrolled at another university to continue her education. She took this action because Appellant’s presence on campus made her fear for her safety. As a result of his actions, Appellant was indicted for stalking, a third degree felony. A jury found Appellant guilty and assessed punishment at seven years of imprisonment and a $2,000.00 fine. This appeal followed.
Indictment
In his first issue, Appellant contends that the trial court erred in failing to grant his motion for directed verdict. In the indictment, the State alleged that Appellant first began stalking High on October 21, 2005. The evidence put on by the State established that the first incident between Appellant and High occurred on October 31, 2005. Appellant contends that by failing to show that any portion of the offense occurred on October 21, the State failed to legally prove its case against him. The State contends that where an indictment refers to an offense as occurring “on or about” a certain date, the indictment is to be construed liberally.
An indictment is sufficient if the time mentioned is a date anterior to the presentment of the indictment and is not so remote that the prosecution of the offense is barred by limitation. Tex. Code Crim. Proc. Ann. art. 21.02, § 6 (Vernon 2005). The “[o]n or about” language of an indictment allows the State to prove a date other than the one alleged so long as the date proven is anterior to the presentation of the indictment and within the statutory limitation. Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000). In the instant case, the dates of the offenses proven, October 31, 2005 and November 3, 6, 10, and 29, 2005, were anterior to the presentation of the indictment and were within the three year limitation period. See Tex. Code Crim. Proc. art 12.01, § 6 (Vernon 2005) (setting forth the general felony limitation period of three years). It was therefore allowable for the State to proceed on events that occurred on October 31, 2005 even though the indictment alleged the offense occurred “namely” October 21, 2005. We overrule Appellant’s first issue.
Legal and Factual Sufficiency
In his second and third issues, Appellant contends that the evidence was not legally and factually sufficient to support his conviction for stalking.
Standard of Review
The Due Process Clause of the Fourteenth Amendment requires that evidence be legally sufficient to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979). Evidence is legally sufficient when an appellate court, viewing the evidence in the light most favorable to the judgment, determines that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) (citing Jackson, 443 U.S. at 319, 99 S. Ct. at 2789). We must bear in mind that the jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). The jury is entitled to draw reasonable inferences from the evidence. Dudley v. State, 205 S.W.3d 82, 86-87 (Tex. App.–Tyler 2006, no pet.). Likewise, the reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).
In addition to the guarantees provided by the Fourteenth Amendment, in the direct appeal of a criminal case, the courts of appeals have the statutory and constitutional authority to entertain a claim of factual insufficiency. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). In conducting a factual sufficiency review of the evidence, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence weighed by the jury that tends to prove the existence of the fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). A verdict will be set aside “only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust.” Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002). A clearly wrong and manifestly unjust verdict occurs where the jury’s finding “shocks the conscience” or “clearly demonstrates bias.” Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). The fact that we might harbor a subjective level of reasonable doubt is not enough to overturn a conviction that is founded on legally sufficient evidence. See Watson, 204 S.W.3d at 417. Although we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. Dudley, 205 S.W.3d at 89. We cannot declare that a conflict in the evidence renders the evidence factually insufficient simply because we disagree with the jury’s resolution of the conflict. See Watson, 204 S.W.3d at 417. A successful factual sufficiency challenge will result in a reversal of the conviction challenged and remand of the case for a new trial. See id. at 414.
As limited by the indictment, the State had to prove that, on more than one occasion, and pursuant to the same scheme and course of conduct, directed specifically at High, Appellant knowingly engaged in certain specified conduct, which he knew and reasonably believed (1) would be regarded by High as threatening bodily injury to High, (2) would cause High to be placed in fear of bodily injury, and (3) would cause a reasonable person to fear that High was in danger of bodily injury. See Tex. Penal Code Ann. § 42.072 (Vernon 2007) (setting forth the elements of a stalking offense).
Discussion
High testified that in each of her five encounters with Appellant that she was afraid and feared for her safety. Ross testified that he feared for both his and High’s safety in the November 3 incident with Appellant. Both Ross and Maldonado testified that they were afraid, both for themselves and for High, in the November 29 incident with Appellant.
Detective Stephenson testified that he specifically told Appellant on November 3 that his actions were threatening to High and others and that he should leave High alone. Lindsay Driggers, another student at the university, testified that, on November 10, Appellant approached her at the Hungry Jack Inn and told her she was beautiful. She said that she asked him to leave her alone, but that he did not listen. He continued getting closer to her and put his hand on her back. When she told him to leave her alone again, “He proceeded to rebuke the devil in the Lord’s name and wave his hands in the air.” It was at this time that another male student stood in front of Driggers and told Appellant to leave her alone.
Another university student, Kimberly Schwab, testified that, during the fall semester of 2005, Appellant introduced himself to her and immediately began providing unwelcomed instruction to her regarding his religious beliefs. She said that it “freaked” her out. She further said that Appellant began following her, petting her head, stroking her hair, and telling her that he loved her. She said that the situation eventually reached the point where she had to have a male resident assistant escort her to and from her dormitory room because she was terrified of Appellant.
The evidence showed that Appellant approached High on five incidents. After the second incident, Appellant was warned by Detective Stephenson that he was scaring High and that he should leave her alone. While testifying, Appellant explicitly denied the occurrence of only one incident. He merely stated that he could not remember the details of each of the other incidents. We hold that the evidence was legally and factually sufficient to support Appellant’s conviction. See Johnson, 871 S.W.2d at 186; Ortiz, 93 S.W.3d at 87. We overrule Appellant’s second and third issues.
Extraneous Evidence
In his fourth issue, Appellant contends that the trial court erred in allowing the testimony of Driggers and Schwab after he objected to the relevancy of their testimonies. See Tex. R. Evid. 404(b). Both Driggers and Schwab testified that they had similar encounters with Appellant at about the same time as High that also caused them to be in fear for their personal safety.
A trial court’s ruling on the admissibility of extraneous offenses is reviewed under an abuse of discretion standard. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). As long as
the trial court’s ruling was within the “zone of reasonable disagreement,” there is no abuse of discretion, and the trial court’s ruling will be upheld. Id. When a trial court further decides not to exclude the evidence, finding that the probative value of the evidence is not outweighed by the danger of unfair prejudice, this decision too shall be given deference. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. ). We cannot substitute our own decision for the trial court’s. Id.
Rule 404(b) precludes a defendant from being tried for his collateral crimes or for having a propensity for criminal conduct. See Tex. R. Evid. 404(b). Extraneous offenses are not admissible at the guilt-innocence phase of a trial to prove that a defendant committed the charged offense in conformity with a bad character. Tex. R. Evid. 404(b). However, extraneous offense evidence that has relevance beyond character conformity may be admissible. Id. Rebuttal of a defensive theory is “one of the permissible purposes for which relevant evidence may be admitted under Rule 404(b).” Moses, 105 S.W.3d at 626.
At trial, counsel for Appellant made clear from the beginning of the trial, specifically in his opening statement to the jury, that a key defensive theory of Appellant was that Appellant “did not realize that some people [were] offended [by his conduct], or didn’t want to hear [about his religious beliefs], [and that his conduct] was never meant to be harmful.” The State had sought to admit the testimony, specifically arguing that “they clearly go to [Appellant’s] motive, his intent, . . . knowing these other encounters and that other people also reasonably feared his actions.” The State also argued that the evidence was admissible to show that others, in addition to High, had the same reaction of fear from Appellant’s actions. We agree with the State that this evidence was relevant for purposes other than to show character conformity.
However, even if the evidence is relevant and the purpose for which it is being offered is permissible under Rule 404(b), it may still be excluded by the trial court under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. The trial court here conducted a review of the evidence to be presented through the testimony of Driggers and Schwab under the factors specified in Montgomery v. State, 810 S.W.2d 372, 392-93 (Tex. Crim. App. 1991) (op. on reh’g). The record does not reflect that the trial court’s decision to allow Driggers and Schwab to testify was outside the zone of reasonable disagreement. Therefore, there was no abuse of discretion. We overrule Appellant’s fourth issue.
Disposition
We affirm the judgment of the trial court.
JAMES T. WORTHEN
Chief Justice
Opinion delivered March 19, 2008.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)