James Hamm v. State

AFFIRM; and Opinion Filed March 6, 2015.

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01687-CR

JAMES DESTRY HAMM, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 02-13-340

MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Myers
Opinion by Justice Lang-Miers

Appellant James Destry Hamm appeals his conviction for the offense of stalking. A jury

found appellant guilty and assessed his punishment at six years’ imprisonment. In three issues

on appeal, appellant argues that portions of the charge to the jury were fundamentally erroneous

and that the evidence was insufficient to support the conviction. Because all dispositive issues

are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm.

BACKGROUND

The complainant testified that, during her junior year of high school when she was

sixteen years old, a man who appeared to be in his mid-forties repeatedly drove by her, honked,

smiled, and waved at her about once a week during her walk from school to work. Three or four
weeks after these incidents began, the complainant saw the same man pull his car into the

parking lot of a convenience store that the complainant was entering. The man watched and

waited for her to approach the store. As she came to the doors, he walked across the sidewalk,

opened the door for her, and said, “Hey, how are you doing?” She did not respond and went into

the store. The man also went into the store, purchased cigarettes, and then watched the

complainant “like he was checking [her] out” as she waited in line to purchase a drink. He then

exited and drove away. The complainant testified that she was “scared as he pulled up” and she

did not know “if he was going to come up and grab” her. She testified that she was fearful

because it appeared that he was “going to attempt” to “match [her] schedule and kidnap [her] or

something.” She stated that she had learned in school that “someone may attempt to kidnap you

if they are following you and you don’t know them.”

During the summer, the same man honked and waved at the complainant a couple of

times. But when the complainant began her senior year of high school, he began to honk to get

her attention once a week or once every other week at the same intersection. In late September,

as the complainant exited a store after purchasing a drink, she noticed that the same driver was

driving very slowly beside her. When she looked at him, he waved, mouthed words to her that

she could not understand, and “made gestures beckoning” her and pointed “at the passenger seat

of his car, requesting that [she] come and get in his car with him.” The complainant testified that

she “was panicked” and concerned that he could kidnap her and “that he might stop the car and

get out and pull me into the car[.]” After she turned away, the driver drove off. As the car

passed, the complainant noted the license plate number and typed the number into her phone.

The complainant and her mother called the police to report the incident and the license

plate number. Officer Josh Ellis of the Rockwall Police Department responded, and the

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complainant and her mother described to him the history of the events leading up to the latest

incident. Ellis asked the complainant to report any future incidents to the police.

Officer Ellis testified that he determined that the car was registered to appellant based on

the license plate number. That evening, Officer Ellis went to appellant’s residence and

interviewed him. Officer Ellis testified that he explained to appellant that he had received a call

from “a concerned mother and a daughter about her safety.” Ellis testified, “I explained to Mr.

Hamm that, you know, the victim was a juvenile and that it would be in his best interests not to

make any more contact with her as she was in fear, you know, of her safety and her mother was

also[.]” Ellis testified that appellant said that he did not think that he was doing anything wrong.

Appellant also commented, “Well, how am I supposed to get a date if I can’t talk to anyone?”

Ellis responded, “Well, I’m not telling you you can’t speak to anyone, but this particular

individual, she is very concerned about her safety, and it would just be in your best interests not

to speak with her and make any more contact with her.” Ellis testified that he thought “Mr.

Hamm understood . . . the seriousness of it, and he assured [Ellis] that he would not make any

more contact with the victim.” Ellis stated that he felt that “going to Mr. Hamm’s residence and

expressing . . . the concern from the mother and the victim, that he would . . . stop” and that

“basically he told [Ellis] that he would” as appellant “apologized and said he wouldn’t make any

more contact.” When asked what it indicates when a person continues engaging in conduct that

the police requested that they stop, Ellis responded, “It basically tells me that they didn’t

comprehend it or they’re just ignoring the law and going to continue, you know, harassing or

stalking someone.”

After Officer Ellis met with appellant, the complainant did not see appellant for several

months. But during the spring semester, appellant began to follow and honk at her again. After

two or three of these incidents, appellant drove up the street behind the complainant as she

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walked on the sidewalk and “was following” her. He honked, and when she did not look at him,

he honked again, “persisting that [she] give some attention.” When she looked, the driver

smiled, waved, and then turned the corner.

The complainant and her mother reported the incident to the police. Officer John

Donaldson of the Rockwall Police Department responded, and heard about the recent and past

incidents involving appellant from the complainant and her mother. Donaldson testified that he

contacted Officer Ellis prior to interviewing appellant, and that Ellis told him that Ellis had

“informed Mr. Hamm that he had placed a juvenile female in fear due to his repeated attempted

contacts with her; that she was young; that it was inappropriate; that a man of his age should not

be approaching young girls in this fashion; and that he was to stop having contact with her.”

Donaldson then interviewed appellant at his residence. Donaldson testified:

I reminded him that Officer Ellis had told him previously months earlier
that his behavior had placed her in fear and he had been told to stay away from
her, and here now the same pattern of behavior, same girl, and that he had placed
her in fear where she was left crying at an intersection.

Donaldson testified that appellant eventually admitted that he knew to whom Donaldson

was referring but said that it was a coincidence that he was near her. When asked if appellant

understood “the point when [Donaldson] spoke to him, or did he seem to think that his behavior

was okay[,]” Donaldson replied that appellant “did not get the point” and he “made excuses

about his behavior,” “changing the story” and “the excuse why it was okay.” Donaldson testified

that he strove to give appellant the opportunity to give a reasonable explanation for his repeated

behavior, but that Donaldson did not find appellant’s responses and excuses reasonable. 1 As a

result, after the interview, Donaldson sought and obtained an arrest warrant against appellant.

1
A video of Donaldson’s interview of appellant was admitted as an exhibit for the State and played for the jury.

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 JURY CHARGE ERROR

In his first issue, appellant argues that the application paragraph in the jury charge at the

guilt-innocence phase of trial was fundamentally erroneous because it omitted an element of the

offense: that a reasonable person would fear bodily injury or death from appellant’s actions. In

his second issue, appellant argues that the application paragraph of the jury charge was also

fundamentally erroneous because it did not require the jury to find that appellant engaged in

conduct that he knew or reasonably believed the complainant would regard as threatening bodily

injury or death, but only that appellant knew or reasonably believed that the complainant would

regard the conduct as threatening.

Background

The jury charge read, in relevant part:

Our law provides that a person commits an offense if, on more than one
occasion and pursuant to the same scheme or course of conduct that is directed
specifically at another person, the person knowingly engages in conduct that the
person knows or reasonably believes the other person will regard as threatening
bodily injury or death to the other person, and causes the other person to be placed
in fear of bodily injury or death, and would cause a reasonable person to fear
bodily injury or death for himself or herself.

....

“Reasonable belief” means a belief that would be held by an ordinary and
prudent person in the same circumstances as the actor.

....

Now, if you find from the evidence beyond a reasonable doubt that
between the dates of on or about June 1, 2012 and May 10, 2013, in Rockwall
County, Texas, the defendant, JAMES DESTRY HAMM, did then and there
unlawfully, knowingly engage in conduct directed specifically toward [the
complainant] that the defendant knew or reasonably believed the said
[complainant] would regard as threatening, and the defendant’s conduct would
cause fear, and did cause [the complainant] to fear bodily injury or death for said
[complainant], by following [the complainant] on more than one occasion and by
continuing to follow [the complainant] after being notified by Officer J. Ellis,
Rockwall Police Department, that the defendant was placing [the complainant] in
fear, and it is further presented in and to said Court, that each of the foregoing acts
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 was committed pursuant to the same scheme or course of conduct that was
directed specifically at [the complainant], then you will find the defendant guilty
as charged in the indictment.

The language of the application paragraph tracked the language of the indictment. Before

the court read the charge to the jury, the defense stated that it had no objections to the charge.

Applicable Law and Standard of Review

The previous version of section 42.072 of the penal code that applies here provides in

relevant part:

(a) A person commits an offense if the person, on more than one occasion
and pursuant to the same scheme or course of conduct that is directed specifically
at another person, knowingly engages in conduct that:

(1) the actor knows or reasonably believes the other person will
regard as threatening:

(A) bodily injury or death for the other person;

....

(2) causes the other person . . . to be placed in fear of bodily injury
or death . . . ;

....

(3) would cause a reasonable person to fear:

(A) bodily injury or death for himself or herself[.] 2

In our review of a claim of jury-charge error, we must first determine whether there was

error in the charge. Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007). If there was

error, we must then determine whether the appellant suffered harm as a result of the error. Id.;

2
The legislature amended section 42.072 of the penal code in 2013. Because the amended version applies to offenses committed on or after
September 1, 2013, the previous version of the statute applies here as Hamm was indicted for offenses committed between June 1, 2012, and May
10, 2013. Act of Jan. 27, 1997, 75th Leg., R.S., ch. 1, § 1, 1997 Tex. Gen. Laws 1, 1, amended by Act of Apr. 23, 1999, 76th Leg., R.S., ch. 62,
§ 15.02(e), 1999 Tex. Gen. Laws 127, 358, amended by Act of May 26, 2001, 77th Leg., R.S., ch. 1222, § 2, 2001 Tex. Gen. Laws 2795, 2795–
96, amended by Act of May 19, 2011, 82nd Leg., R.S., ch. 591, § 1, 2011 Tex. Sess. Law. Serv. 1433, 1433 (West) (amended 2013) (current
version at TEX. PENAL CODE ANN. § 42.072 (West Supp. 2014)).

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Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g). When an

appellant did not object to the charge, the appellant must show that the error actually caused him

egregious harm. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). Errors that

result in egregious harm are errors that deprive the defendant of a valuable right, affect the very

basis of the case, or vitally affect a defensive theory. Id. at 461–62.

Arguments of the Parties

Appellant argues that the wording and omissions in the jury charge allowed the jury to

convict appellant “on less than the essential statutory elements and definition of the offense.”

Appellant contends that the error in the charge resulted in egregious harm because he was denied

his right to a jury determination on each element of the alleged offense and, as a result, was

denied a fair and impartial trial. The State responds that there was error in the jury charge, but

argues that the error did not result in egregious harm.

Analysis

“A jury charge must distinctly set forth the law applicable to the case and set out all of

the essential elements of the offense.” Martin v. State, 200 S.W.3d 635, 639 (Tex. Crim. App.

2006); see TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007) (requiring the judge to deliver to

the jury “a written charge distinctly setting forth the law applicable to the case”). “The meaning

of a jury instruction must be taken from the whole charge, and jurors are not authorized to return

a verdict except under those conditions given by the application paragraph of the charge.”

Delapaz v. State, 228 S.W.3d 183, 212 (Tex. App.—Dallas 2007, pet. ref’d). A jury charge is

adequate

if it either contains an application paragraph specifying all of the conditions to be
met before a conviction under such theory is authorized, or contains an
application paragraph authorizing a conviction under conditions specified by
other paragraphs of the jury charge to which the application paragraph necessarily
and unambiguously refers, or contains some logically consistent combination of
such paragraphs.
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Plata v. State, 926 S.W.2d 300, 304 (Tex. Crim. App. 1996), overruled on other grounds by

Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997).

In this case, the jury charge contained a “logically consistent combination of” the

application paragraph with the earlier abstract paragraph that laid out the three elements of

stalking. See id.; see also Ploeger v. State, 189 S.W.3d 799, 805 (Tex. App.—Houston [1st

Dist.] 2006, no pet.) (stating that “sub-paragraphs (1), (2), and (3) of section 42.072(a) are each

elements of a single offense” of stalking). The application paragraph included the requirements

that the jury find from the evidence beyond a reasonable doubt that appellant “knowingly

engage[d] in conduct directed specifically toward [the complainant] that the defendant knew or

reasonably believed the said [complainant] would regard as threatening, and the defendant’s

conduct would cause fear, and did cause [the complainant] to fear bodily injury or death for

[herself.]” The abstract paragraph laid out the elements of the offense of stalking, stating that a

person commits the offense of stalking if “the person knowingly engages in conduct that the

person knows or reasonably believes the other person will regard as threatening bodily injury or

death to the other person, and causes the other person to be placed in fear of bodily injury or

death, and would cause a reasonable person to fear bodily injury or death for himself or herself.”

As a result, the application paragraph stated the first element of stalking—that appellant

knew or reasonably believed that the other person would regard his conduct as threatening—but

did not include the last phrase of that element—“bodily injury or death for the other person.”

The abstract paragraph stated the element in its entirety, including the requirement that appellant

know or reasonably believe that the other person “will regard” his conduct “as threatening bodily

injury or death to the other person[.]” Similarly, the abstract paragraph stated the third

element—that appellant’s conduct “would cause a reasonable person to fear bodily injury or

death for himself or herself.” The application paragraph referred to this element with the
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requirement that the jury find beyond a reasonable doubt that “the defendant’s conduct would

cause fear[.]”

Two cases that the State cites as authority are analogous. In Dinkins v. State, the

appellant argued that the jury charge erroneously authorized a capital murder conviction without

requiring that the second murder involved in the offense be committed intentionally or

knowingly. 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). Although the abstract portion of the

charge defined capital murder and murder, the application portion did not state a culpable mental

state for a second murder. Id. The court concluded that, because the application portion of the

charge allowed the jury to convict the appellant of capital murder only if it found that both

killings were murders and the abstract portion provided the statutory definition of murder, “the

jury was instructed that a person commits capital murder only if both killings were committed

intentionally and knowingly” and, as a result, the jury charge was not defective. Id. at 339–40.

In Holley v. State, the appellant argued that the application paragraph allowed conviction

under the felony murder rule for a death that resulted during the commission of a misdemeanor

because the application paragraph did not require a finding of serious bodily injury and allowed

conviction upon a finding that defendant’s conduct was committed recklessly. 766 S.W.2d 254,

255 (Tex. Crim. App. 1989). The application paragraph required the jury to find that the

defendant “intentionally or knowingly or recklessly committed or attempted to commit a felony,

to wit: injury to a child[.]” The abstract portion stated, “Our law provides that it is a felony to

intentionally or knowingly or recklessly cause serious bodily injury to a child younger than

fifteen years of age.” Id. The court concluded that the application paragraph “tacitly

incorporate[d] an abstract proposition of law which was stated earlier in the charge.” Id. at 256.

The court stated that, because the application paragraph properly instructed the jury under what

circumstances they could convict appellant and because one of these circumstances—

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commission of “a felony, to wit: injury to a child”—was “completely explained to the jury” in

the abstract portion of the charge, the instructions provided a “complete map” to the jury of

“each step necessary to convict.” Id. Consequently, the court concluded that there was no error.

Id. at 257.

Similarly, in this case, the application paragraph “tacitly incorporate[d] an abstract

proposition of law” stated earlier in the charge. The application paragraph “informed the jury

under what circumstances they could convict appellant” and two of these circumstances—that

the defendant knew or reasonably believed that the other person would regard his conduct “as

threatening” and that “the defendant’s conduct would cause fear”—were “completely explained

to the jury” in the abstract paragraph, which made clear that the defendant must have known or

reasonably believed that the other person would regard his conduct as “threatening bodily injury

or death to the other person” and the requirement that his conduct “would cause a reasonable

person to fear bodily injury or death.” Consequently, these instructions provided a “complete

map” to the jury of each step that they had to follow in order to convict appellant. See id. at

256–57.

The authorities that appellant cites are distinguishable. In Ploeger, the court concluded

that it was error for the application paragraph of the jury charge to state the three elements of

stalking under penal code section 42.072 disjunctively rather than conjunctively. 189 S.W.3d at

804–07. The jury charge in this case stated the three elements of section 42.072 conjunctively.

In Campbell v. State, the court of criminal appeals stated that “it is error for a trial judge to refer

to the law of parties in the abstract portion of the jury charge and not to apply that law or to refer

to that law in the application paragraph of the jury charge.” 910 S.W.2d 475, 477 (Tex. Crim.

App. 1995). In the present case, the application paragraph “refer[red]” to the three elements of

stalking, which were explained completely to the jury in the abstract paragraph. In Harris v.

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State, the court of criminal appeals held that, although the abstract paragraphs adequately

explained the law, “there [was] a complete failure to apply this law to the facts and issues in

evidence.” 522 S.W.2d 199, 201 (Tex. Crim. App. 1975). In contrast, the jury charge at issue

here contained an application paragraph that applied the law to the facts and issues. Likewise, in

Fennell v. State, the court concluded that, because the court only instructed the jury abstractly on

the issue of self defense and did not apply that law to the facts, there was error in the charge.

424 S.W.2d 631, 632–33 (Tex. Crim. App. 1968). As explained above, in this case, the jury

charge not only explained the elements of stalking abstractly, it applied the law to the facts of the

case.

We conclude that there was no error. We overrule appellant’s first and second issues.

SUFFICIENCY OF THE EVIDENCE

In his third issue, appellant argues that there was legally insufficient evidence to support

the element requiring that appellant knew or reasonably believed that the other person would

regard his conduct as threatening bodily injury or death. The State contends that the evidence

was sufficient to support this element.

Applicable Law and Standard of Review

In analyzing a claim of insufficient evidence, we review all the evidence in the light most

favorable to the verdict and determine whether a rational factfinder could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

318–19 (1979); Wise v. State, 364 S.W.3d 900, 902 (Tex. Crim. App. 2012). The factfinder is

the exclusive judge of the credibility of the witnesses and the weight to give their testimony and

resolves all conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App.

2000). When we analyze the sufficiency of the evidence, we “determine whether the necessary

inferences are reasonable based upon the combined and cumulative force of all the evidence

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when viewed in the light most favorable to the verdict.” Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)).

We treat direct and circumstantial evidence equally. Id.

Analysis

Appellant argues the evidence was insufficient to establish that appellant knew or

reasonably believed that the complainant would regard his conduct as threatening bodily injury

or death because (1) the complainant and her family did not express their concerns directly to

appellant, (2) there was not “a scintilla of evidence of actual threat of bodily injury or death[,]”

and (3) there was no evidence that appellant “was aware of the nature of his conduct or that his

conduct was reasonably certain to cause the result[.]”

Appellant argues that the “State’s own proof negated the required culpability of the

offense.” He asserts that Officers Ellis and Donaldson “testified that if Appellant did not obey

the warning he either did not comprehend or decided to ignore the law[.]” Appellant also relies

on Donaldson’s statement that appellant did not “get the point” and his “changing the excuse

why it was okay.” And appellant contends that the significance of Officer Ellis’s warning to

appellant to stay away from the complainant should be discounted because the “Complainant’s

Mother testified Ellis said that he didn’t necessarily feel that the girl was in danger and that the

Mother considered the danger more seriously than did Officer Ellis.” In addition, appellant

stresses Officer Ellis’s testimony that appellant’s acts, excluding the later honking incident, did

not in their entirety constitute “an arrestable offense[.]” Appellant contends that, as a result, the

evidence negates rather than proves “the guilty knowledge and intent required by the statute.”

But, as the State points out, evidence in the record was sufficient to support a finding that

appellant knew or reasonably believed that the complainant would regard his conduct as

threatening bodily injury or death. Officer Ellis testified that he informed appellant that his

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conduct placed the complainant in fear for her safety and that it would be in his best interest to

cease his contacts with her. Ellis testified that he thought “Mr. Hamm understood . . . the

seriousness of it, and he assured [Ellis] that he would not make any more contact with the

victim.” The fact that the complainant’s mother testified that she did not believe that Officer

Ellis considered the incidents as seriously as she did does not negate the fact that Ellis made

appellant aware that he was placing the complainant in fear for her safety. And Ellis’s testimony

that he thought that appellant’s later actions towards the complainant indicated that appellant did

not “comprehend it” or that he was ignoring the law does not negate Ellis’s testimony that he

informed appellant and made him aware of the effect of his conduct on the complainant.

Likewise, Officer Donaldson testified that he reminded appellant that Officer Ellis had

previously told him “that his behavior had placed her in fear and he had been told to stay away

from her” and that, with this “same pattern of behavior, same girl,” he “had placed her in fear

where she was left crying at an intersection.” Although Donaldson testified that appellant “did

not get the point” and made excuses, Donaldson’s testimony demonstrated that he informed

appellant that his conduct was causing the complainant to be in fear of her safety.

In sum, viewing all the evidence in the light most favorable to the verdict, we conclude

that the evidence was sufficient for a reasonable factfinder to find that appellant knew or

reasonably believed that the complainant would regard his conduct as threatening bodily injury

or death. See Jackson, 443 U.S. at 318–19; Wise, 364 S.W.3d at 902. We overrule appellant’s

third issue.

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 CONCLUSION

We affirm the trial court’s judgment.

/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE

Do Not Publish
Tex. R. App. P. 47.2(b)

131687F.U05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

JAMES DESTRY HAMM, Appellant On Appeal from the 382nd Judicial District
Court, Rockwall County, Texas
No. 05-13-01687-CR V. Trial Court Cause No. 02-13-340.
Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee Justices Bridges and Myers participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 6th day of March, 2015.

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