Jack M. Maniscalco, Jr. v. State

Affirmed and Memorandum Opinion filed March 19, 2013.

In the

Fourteenth Court of Appeals

NO. 14-11-00594-CR

JACK M. MANISCALCO, JR., Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the 434th Judicial District Court
Fort Bend County, Texas
Trial Court Cause No. 11-DCR-056387

MEMORANDUM OPINION

Appellant Jack Maniscalco, Jr., was convicted of the offense of interference
with an emergency phone call, a felony offense due to a prior conviction for
interference with an emergency phone call. On appeal, appellant challenges the
legal sufficiency of the evidence to support his conviction, arguing that (1) any
emergency call was completed prior to any interference by appellant and (2) there
was no underlying ―emergency‖ on which to base the conviction. We affirm.
 I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was indicted for felony interference with an emergency phone
call, alleged to have been committed on May 7, 2010, with a prior conviction for
interference with an emergency phone call.

At trial, complainant Charlie Butler, assistant principal for First Colony
Middle School, testified that on May 7, 2010, he observed students leaving the
school in a direction they ordinarily do not take to get home. Butler indicated
some of these students previously had been involved in ―slap-boxing,‖ a form of
fighting that can become ―pretty violent,‖ at school. Butler got into his car and
drove toward where he thought the students were heading. Butler testified that he
received a radio, i.e., walkie-talkie, call from Fort Bend Independent School
District Officer Lora Gast, who indicated the students were going to one of the
nearby baseball fields. When Butler arrived at the baseball field, the students
scattered and he saw an adult—appellant—standing there. As Butler approached
appellant, appellant stated that he was ―supervising the fight‖ and that he had been
a coach for some of the students involved. Appellant asked Butler who he was,
and Butler identified himself as one of the middle school principals. Butler
informed appellant that he should not let the students fight; appellant responded,
―Oh, if you let them fight here, you don’t have to worry about them bringing guns
to school.‖

Butler testified that he believed that appellant was ―basically sponsoring a
fight,‖ and he began to walk away in the direction of where the students scattered
so he could attempt to talk to them. Appellant began following Butler, taunting
him with racial slurs. When appellant was about three to four feet away from
Butler, Butler called into Officer Gast on the radio and advised that there was an
adult male who was insulting and threatening Butler. Appellant then approached

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Butler until they were about a foot apart, ―got in [his] face,‖ yelling obscenities and
smelling of alcohol, and asked Butler, ―What you want to do, what you want to
do[?]‖ Butler testified that he thought appellant wanted to fight him and was
―egging [him] on,‖ and that appellant ―was going to grab [him]‖ and ―hit [him].‖
As Butler stepped back, he received another call from Officer Gast, who told him
that the Sugar Land Police Department (SLPD) was en route. Appellant then said,
―[O]h, you need your cop friends to come and help you,‖ grabbed the radio out of
Butler’s hand, and slung the radio at least five to six feet away. Butler testified
that as appellant was throwing the radio, Butler had just heard Officer Gast ask for
Butler’s exact location. As Butler retrieved his radio ―to keep in communication
with‖ Officer Gast, appellant started walking away quickly. Appellant tossed his
keys to a student, later identified as appellant’s son. At this time, an SLPD truck
appeared on the scene but was unable to pursue appellant because the truck got
stuck in a ditch. Butler followed appellant at a distance, ―far enough for him not to
turn around and punch [Butler],‖ because he wanted police to apprehend appellant.
Appellant then jogged into the neighborhood. Butler went back toward his car and
met up with Officer Gast, who was still in communication with SLPD. After
SLPD apprehended appellant, Butler identified appellant.

Officer Gast testified that on May 7, she was notified by dispatch that there
was a fight near the baseball fields. By radio, Officer Gast informed school
administrators, including Butler, that she was leaving campus to check on a
possible fight on the baseball fields. Butler then called back to her on the radio
that he already was there at the scene and he needed help because there was an
adult who was threatening him. Officer Gast then responded to Butler that she and
SLPD were en route, and asked Butler for his exact location. Officer Gast became
concerned because Butler did not respond to her question, so she called him two or

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three more times. When Officer Gast arrived at the scene, appellant was gone.
After checking the area, Officer Gast returned to campus; once SLPD apprehended
appellant, Officer Gast took Butler to identify appellant.

Appellant testified that he was on a walk in his neighborhood on May 7
when he received a call from his son that he was at a fight at the back of the
baseball field. Appellant admitted that he had two beers before his walk.
Appellant walked over to the field to pick up his son. After appellant arrived at the
field, Butler drove up, and all the kids scattered. After Butler approached,
appellant testified that he identified himself and told Butler that two kids were
fighting, and that Butler accused him of setting up the fight. Appellant testified
that he started walking off because he did not want to get involved. Appellant
denied supervising any fight, using racial slurs or obscenities, and ever touching
the radio. Appellant testified that Butler dropped the radio after Butler ―got pretty
close to‖ appellant and ―threw his hand up, with the radio‖; when appellant
flinched, their arms hit. Appellant denied hearing that police were en route due to
his diminished hearing. According to appellant, after Butler picked up the radio,
he continued accusing appellant of setting up the fight. Appellant walked back
into the neighborhood, where police stopped him, handcuffed him, and told him he
was being arrested for public intoxication.

The jury found appellant guilty of the charged offense and assessed his
punishment at six months’ confinement and a fine of $5000.

II. STANDARD OF REVIEW

In reviewing legal sufficiency of the evidence, we examine the evidence in
the light most favorable to the verdict to determine whether any rational fact finder
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. State, 287 S.W.3d 346, 350 (Tex. App.—Houston [14th Dist.] 2009, no
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pet.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979); Dewberry v. State, 4
S.W.3d 735, 740 (Tex. Crim. App. 1999)). We do not sit as a thirteenth juror and
may not reevaluate the weight and credibility of the record evidence or substitute
our judgment for that of the fact finder. Id. (citing Dewberry, 4 S.W.3d at 740).
―Reconciliation of conflicts in the evidence is within the exclusive province of the
fact finder.‖ Id.

III. ANALYSIS

An individual commits an offense if he 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. TEX. PENAL CODE
ANN. § 42.062(a) (West 2012). The statutory definition of ―emergency‖ means 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. Id.
§ 42.062(d).

A. Whether the emergency call was completed before appellant
“interfered”

Appellant first argues there was not legally sufficient evidence to convict
him of the offense because, based on ―common sense,‖ once Butler’s call to police
was completed, there could be no prevention or interference with that emergency
call. Appellant contends that at the time when appellant allegedly grabbed Butler’s
radio, Butler already had communicated all necessary information to police—that
is, police were aware of Butler’s location and had a description of the situation.

Here, Butler testified that after appellant started following him and hurling
racial slurs, Butler called Officer Gast on his radio and informed her that an adult
male was insulting and threatening him. Butler testified that appellant then ―got in
[his] face‖ and asked him what he wanted to do. According to both Butler and
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Officer Gast, Butler received a call back from Officer Gast that she and the SLPD
were en route. Butler testified that, just prior to grabbing and throwing his radio,
appellant taunted Butler that he needed his ―cop friends to come and help‖ him.
Butler testified that as appellant was grabbing and throwing the radio, Butler had
just heard Officer Gast requesting his exact location. Butler testified he was
―positive [where—where are you?] was said on the radio‖ and that Officer Gast
―didn’t know where, in the park [he] was.‖ Butler also testified that he was not
―able to make [sic] exact location with‖ Officer Gast ―[b]ecause [appellant] had
thrown [Butler’s] radio to the ground at that particular time.‖ Officer Gast
confirmed that after she told Butler that she and SLPD were en route, she asked
him for his exact location. Officer Gast never received an exact location from
Butler, and this concerned her enough that she called him back two or three times
in an attempt to ascertain his location. Officer Gast requested Butler’s exact
location ―because there’s [sic] a couple of different baseball diamonds out there‖
and there is back access to the fields. Appellant admitted Butler called someone on
the radio after appellant identified himself to Butler but claimed not to know that it
was the police because Butler never said who he was talking to and because
appellant is hard of hearing.

Both Butler’s and Officer Gast’s testimony supports a jury finding that
appellant’s actions prevented or interfered with Butler’s ability to provide
additional important information to police, namely, his precise location in an area
consisting of more than one baseball field, with more than one access point.
Viewed in the light most favorable to the verdict, the evidence shows that the jury
was rationally justified in finding beyond a reasonable doubt that appellant
knowingly prevented or interfered with Butler’s ability to place an emergency call
or request assistance in an emergency from a law enforcement agency when he

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grabbed the radio from Butler’s hand and slung it several feet away from Butler in
the course of Butler’s radio communications with Officer Gast. Therefore, we
overrule appellant’s first issue.

B. Whether Butler feared or is reasonably believed to have feared
imminent assault to constitute an “emergency”

Appellant’s second legal sufficiency challenge focuses on whether Butler
was even making an ―emergency‖ radio call. Appellant argues that there is
insufficient evidence that Butler was in fear of imminent assault as defined by
section 42.062(d) because the testimony shows that Butler could have walked
away but instead confronted and then followed appellant, and that both Butler and
appellant were upset and in each other’s faces.

Appellant relies on Matlock v. State, where the Tyler Court of Appeals
considered whether there was legally sufficient evidence that an interrupted call to
9-1-1 constituted an emergency call for purposes of section 42.062(d). No. 12-05-
00413-CR, 2006 WL 2106951, at *2 (Tex. App.—Tyler July 31, 2006, no pet.)
(mem. op., not designated for publication). This case is unpublished and, as such,
is not precedent and has no precedential value. See TEX. R. APP. P. 47.7 & 2008
cmt.; Scillitani v. State, 343 S.W.3d 914, 919 n.3 (Tex. App.—Houston [14th
Dist.] 2011, pet. ref’d) (noting that an opinion not designated for publication ―does
not have any precedential value‖); see also State Farm Lloyds v. Borum, 53
S.W.3d 877, 889 & n.7 (Tex. App.—Dallas 2001, pet. denied) (refusing to
consider unpublished opinion because such opinions have no precedential value
and are not authority); Frizzel v. Cook, 790 S.W.2d 41, 43 (Tex. App.—San
Antonio 1990, writ denied) (equating an opinion withdrawn by the issuing court
with an unpublished opinion and stating that both withdrawn and unpublished
opinions have no precedential value and should not be considered by appellate

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courts). But, even if it had precedential value and could be considered as
persuasive authority, we would not find it to be on point.

The Matlock court sustained the appellant husband’s sufficiency challenge
because there was no record evidence that the complainant wife was afraid of the
appellant, no proof of facts or circumstances from which one could infer that she
reasonably feared he would assault her, and no evidence that the appellant had
threatened her. Id. at *2–3.

Here, unlike in Matlock, there is sufficient evidence for the jury to
reasonably find that Butler was in fear of or is reasonably believed to be in fear of
imminent assault from appellant at the time Butler was engaged in calling police.
Butler testified that after arriving at the baseball field, he asked appellant what was
going on and appellant informed Butler he was ―supervising‖ the students fighting.
When Butler started walking away to talk to the students, appellant followed Butler
and taunted him ―several times‖ with racial slurs. At this point, when appellant
was about three to four feet away, Butler testified he called Officer Gast on the
radio about an adult male who was ―insulting‖ and ―threatening‖ him. Officer
Gast testified that she could tell that ―something had happened‖ from Butler’s tone
of voice when he called in for help on the radio. Butler testified that appellant kept
following him to within a foot’s distance, ―within striking distance‖—close enough
that Butler could smell alcohol on appellant’s breath—yelling profanity and
―egging‖ Butler on by asking him ―what you want to do, what you want to do.‖
Butler thought appellant ―wanted to fight‖ and ―was going to grab [him], hit
[him],‖ so he stepped back. As Butler did so, Officer Gast called in on the radio
that she and SLPD were en route. According to Butler, appellant then said, ―[O]h,
you need your cop friends to come and help you,‖ grabbed the radio out of Butler’s
hand, and threw the radio at least five to six feet away. At that time, Butler

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testified, he had just heard Officer Gast requesting his exact location. Butler
retrieved his radio and appellant started to walk away. Butler saw that the police
truck was unable to pursue appellant and so he followed him ―from a distance,‖
―far enough for [appellant] not to turn around and punch‖ Butler. Butler testified
that ―[o]f course . . . [he] was afraid, [he] didn’t know what [appellant] was going
to do.‖ Butler testified that appellant never prevented him from leaving. Butler
also testified that his job is to protect his students’ safety and he ―knew [appellant]
was drunk, knew he had been out there with the kids,‖ which is why he wanted
police to apprehend appellant. Appellant admitted to having drunk two beers
beforehand, but denied using any racial slurs or profanity with Butler. Appellant
testified it was Butler who approached appellant ―actually aggravated‖ and
―hollered‖ at appellant, ―got pretty close‖ to appellant and threw his hands up,
which is when appellant flinched, their arms hit, and Butler dropped the radio.
Appellant testified that Butler then followed appellant ―like a little Chihuahua‖
when he tried to walk away.

We must presume that the jury resolved any conflicting inferences in favor
of the verdict, and must defer to that resolution. Jackson, 287 S.W.3d at 350
(citing Jackson, 443 U.S. at 326). Thus, a rational jury could conclude Butler’s
testimony was credible and established that Butler feared or was reasonably
believed to be in fear of an imminent assault at the time he placed the radio call to
Officer Gast—when appellant was insulting Butler using racial slurs and
threatening him—and that this fear of imminent assault continued at least until the
time that appellant grabbed and threw Butler’s radio away—when appellant was
screaming profanity ―within inches‖ of Butler, taunting Butler about needing his
―cop friends to come and help‖ him, and ―egging‖ him on, and Butler thought
appellant was going to ―grab‖ and ―hit‖ him. A rational jury also could conclude

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that Officer Gast’s testimony about Butler’s tone of voice when he called her for
help because there was an ―adult out there threatening‖ him corroborated that
Butler was ―nervous‖ and involved in a tense situation with appellant. See id. at
351–52 (concluding evidence was legally sufficient to support existence of an
emergency where complainant testified she thought appellant would hurt her, that
appellant demonstrated ―rage,‖ and that appellant said, ―[B]itch, you going to call
the cops, I’m going to give you something to call the cops for,‖ and officer testified
complainant told him that appellant assaulted her and slapped the phone away from
her as she tried to call 9-1-1, and complainant was crying when officer arrived at
scene).

While Butler admits to following appellant, this took place after appellant
grabbed and threw the radio and appellant started to quickly walk away; Butler
testified that despite being ―afraid,‖ he wanted police to apprehend appellant,
Butler’s priority was the students’ safety, and he did not know whether appellant
would try to ―fight‖ the students. Moreover, Butler’s behavior after appellant
started to leave the scene—by following him at a distance safe enough to avoid any
physical contact—is not inconsistent with Butler’s having been in fear or
reasonably believed to be in fear at the time when Butler was engaged in, and
appellant prevented or interfered with, the radio call with police. Finally,
appellant’s contention that both men were upset does not diminish the probative
value of Butler’s testimony that he thought appellant would ―grab‖ or ―hit‖ him in
showing Butler’s fear. See Caballero v. State, 919 S.W.2d 919, 921 (Tex. App.—
Houston [14th Dist.] 1996, pet. ref’d) (concluding that complainant’s fear may be
established by circumstantial evidence such as what complainant was thinking at
time of offense). Viewed in the light most favorable to the verdict, the evidence
shows that the jury was rationally justified in finding beyond a reasonable doubt

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that Butler was in fear or reasonably believed to be in fear of imminent assault
from appellant, which constitutes an ―emergency‖ for purposes of section
42.062(d). Therefore, we overrule appellant’s second issue.

IV. CONCLUSION

Accordingly, we affirm the trial court’s judgment.

/s/ Tracy Christopher
Justice

Panel consists of Justices Frost, Christopher, and Jamison.
Do Not Publish — TEX. R. APP. P. 47.2(b).

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