Kramer v. State

OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

This is an appeal from a conviction for harassment, as denounced by V.T.C.A., Penal Code, Section 42.07(a)(1). The jury assessed punishment at 180 days, probated.

Upon original submission, a panel of this Court found, with one judge dissenting, that the evidence is insufficient to support the judgment. We now hold that the evidence is sufficient to support the conviction.

The uncontroverted testimony of complainant Anne Reiser establishes that on December 31, 1975, six days after returning home from the hospital with her newborn son, complainant found State’s Exhibit # 1 in the mailbox of the home where she and her husband resided. The exhibit is a postcard, addressed to her husband, John Reiser, with the following message, apparently taken from a newspaper advertisement, affixed to the back:

“Baby Problem Solved!
with this beautiful
ALL METAL
CASRET-VAULT COMBINATION
CRYPT-A-CRIB
P. 0. Box 11074
Cincinnati, Ohio 45211”

The sending of that postcard is the action complained of in the State’s information. *865Viewed in a light most favorable to the verdict of the jury, the testimony of the Keisers and of Harry L. Felker, Jr., an expert document examiner, establishes the following:

Appellant first met John Reiser in 1970, when both lived in the same apartment building in Honolulu, Hawaii. Reiser and appellant lived together for a period of almost four months, after which appellant left Hawaii. When appellant returned to Hawaii, Reiser had already met Anne Reiser and no further contact with appellant was initiated by Reiser.

The Reisers were married in May, 1971. Between that time and August, 1974, when the Reisers moved to Duncanville, appellant repeatedly was observed by the Reisers near their living quarters. Appellant also wrote frequently to John Reiser.

The correspondence continued after the Reisers moved to Duncanville, to the extent that, although much of it was disposed of by the Reisers, two or three grocery sacks of mail were made available to the Dallas County district attorney’s office. Included among that correspondence were two letters, one typewritten and one in longhand, both signed “Shirley”, and their typewritten envelopes, addressed to John Reiser and marked “restricted delivery.” Those letters and envelopes were admitted in evidence.

The content of both letters demonstrates an intent by their author to continue seeing and otherwise contacting John Reiser despite attempts upon his part, described in the letters, to avoid their author.

Comparison of the handwriting of the longhand letter and of a writing exemplar of the appellant showed the letter to have been written by appellant.

Comparison of the typewritten letter, the envelopes, and the address of the postcard on a letter by letter basis using sophisticated optical comparison equipment revealed that each exhibit was typed upon the same machine.

The record shows further that appellant, after threatening for some time to follow the Reisers to Duncanville, appeared one day outside of John Reiser’s place of work and subsequently and repeatedly both near his place of work and outside the Reiser home, and that appellant was aware of Reiser’s work schedule and of Mrs. Reiser’s pregnancy.

Appellant’s long standing course of conduct, combined with her knowledge of Anne Reiser’s pregnancy and the use of the same typewriter to address each of the State’s exhibits, is sufficient to exclude other reasonable inferences than that appellant sent the postcard that is the basis of this prosecution.

Appellant’s knowledge of John Reiser’s work schedule and her knowledge that she could send letters to John Reiser without Anne Reiser seeing their contents prior to her husband’s perusal of them, demonstrated by appellant’s prior use of “restricted delivery” postal service in writing to John Reiser, make untenable appellant’s argument that the postal card may not have been meant to be seen by Anne Reiser, but may have been for John Reiser’s eyes only.

The question of whether the message on the postcard was intended to annoy and alarm the mother of a newborn baby, six days home from the hospital, is answered by the message itself.

In Sullivan v. State, 564 S.W.2d 698 (Tex.Cr.App.1978), this Court, on motion for rehearing, said:

“It is well established that a conviction on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of guilt and proof amounting only to a strong suspicion is insufficient. Flores v. State, 551 S.W.2d 364 (Tex.Cr.App.1977); Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976); Indo v. State, 502 S.W.2d 166 (Tex.Cr.App.1973). However, it is not necessary that every fact point directly and independently to the defendant’s guilt; it is enough if the conclusion is warranted by the combined and *866cumulative force of all the incriminating circumstances. Flores v. State, supra; Herndon v. State, 543 S.W.2d 109 (Tex.Cr.App.1976)....”

In the instant case, as in Sullivan, the evidence, taken as a whole, excludes to a moral certainty every reasonable hypothesis except appellant’s guilt.

Appellant contends that the information fails to state a cause of action because the language of the message complained of is not in itself coarse or offensive, nor was it communicated in a coarse or offensive manner. V.T.C.A., Penal Code, Section 42.07(a), provides:

“(a) a person commits an offense if he intentionally:
“(1) communicates by telephone or in writing in vulgar, profane, obscene, or indecent language or in a coarse and offensive manner and by this action intentionally, knowingly, or recklessly annoys or alarms the recipient or intends to annoy or alarm the recipient; ..."

Appellant contends that to fit the proscription of Section 42.07, supra, the language of the message or its manner of delivery must be coarse and offensive because the substantive proscription of the sections were limited to vulgar, profane, obscene or indecent language, while “coarse and offensive manner” refers only to the means of delivery. We decline to follow such a construction.

We hold that the statute as applied to this case requires only that one communicate with another by telephone or in writing “in a coarse and offensive manner” with intent to alarm on the part of the sender. A seemingly harmless group of words can be intended to cause their recipient great distress, and that intent can be carried out to great effect. The instant ease is precisely the situation where the alternative of a “coarse and offensive manner” is necessary to vindicate the rights of the recipient of spite messages and the State’s interest in protecting citizens from such intrusion.

Appellant contends that Section 42.07(a) is vague and overbroad, and therefore viola-tive of appellant’s Fourteenth Amendment rights. Appellant bases her vagueness contention on the use in the statute of the words “annoy”, “alarm”, “coarse” and “offensive;” This Court rejected the same contention as to the words “annoy” and “alarm” in Section 42.07 in Collection Consultants, Inc. v. State, 556 S.W.2d 787 (Tex.Cr.App.1977).

Appellant argues that if we allow the statute to stand then any recipient of a message may decide what that recipient thinks is “coarse and offensive”, and that the person of ordinary intelligence is therefore without a guide to the conduct forbidden by Section 42.07. But the gravamen of the violation of Section 42.07(a) as charged in the information is the intent to annoy and alarm by means of a “coarse and offensive” message. The alternative, not • charged in the instant case, would require that the actor be at least reckless in actually annoying or alarming the recipient of his coarse and offensive message. There is no room in the statute for a vindictive or overly sensitive recipient to create an offense by his own belief in the coarseness or offensiveness of a message. When the provisions of the statute, including the culpability requirement, are read together, a person of ordinary intelligence can readily understand what is proscribed.

Neither is Section 42.07(a) unconstitutionally overbroad. In reversing the conviction of a person who wore a jacket bearing the words “_the draft” inside a courthouse, the Supreme Court said:

“. . . No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult.. . .
“Finally, in arguments before this Court much has been made of the claim *867that Cohen’s distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to appellant’s crude form of protest. Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. See, e. g., Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue, e. g., Rowan v. United States Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970), we have at the same time consistently stressed that ‘we are often “captives” outside the sanctuary of the home and subject to objectionable speech.’ Id., at 738, 90 S.Ct., at 1491. The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.
“In this regard, persons confronted with Cohen’s jacket were in a quite different posture than, say, those subjected to the raucous emissions of sound trucks blaring outside their residences. Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes. And, while it may be that one has a more substantial claim to a recognizable privacy interest when walking through a courthouse corridor than, for example, strolling through Central Park, surely it is nothing like the interest in being free from unwanted expression in the confines of one’s own home. ... ” Cohen v. California, 403 U.S. 15, 22, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971).

Section 42.07(a) does not by its terms regulate public communication.- it deals with messages communicated to a recipient over the telephone or in writing.

Use of the word “recipient” rather than “viewer” indicates that the writing contemplated is in the nature of a letter or personal message. Acts forbidden by Section 42.-07(a), therefore, require the communication to be via the recipient’s telephone or to be delivered to the recipient’s home or person.1 No provision is made in Section 42.07(a) for punishing acts not directed to a private recipient.

Both Cohen and Rowan v. United States Post Office Department, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970), recognize the interest of the State in protecting the recipient’s privacy within the house; the same considerations apply to the telephone and, a fortiori, to the person.

We find no constitutional infirmity in Section 42.07(a) as applied in this case.

Exception is taken to the trial court’s refusal to shuffle the jury panel before the voir dire. The record shows that the panel was shuffled during the voir dire. No showing of harm to appellant is made or attempted. The error, if any, was harmless.

Appellant contends the failure of the court to define “annoy” and “alarm” or “coarse” and “offensive” in its charge to the jury was reversible error. Article 3.01, V.A.C.C.P., provides:

“All words, phrases and terms used in this Code are to be taken and understood *868in their usual acceptation in common language, except where specially defined.”

The contention has no merit. King v. State, 553 S.W.2d 105 (Tex.Cr.App.1977).

Appellant contends that prosecution’s statement during final argument to the jury that “[i]f you want to sentence John and Anne Keiser to a lifetime of Shirley Kramer, then you find her not guilty” was so prejudicial that the court’s instruction to the jury to disregard the statement was insufficient to prevent irreparable harm to appellant. Error, if any, was made harmless by the court’s instruction.

Appellant’s final contention is that the court erred in admitting State’s Exhibit No. 1, the postcard with the complained of message, into evidence because it varied from the version set out in the information in that it had an address-that of John Keiser-upon the obverse side while only the reverse was shown in the information. In Fischer v. State, 172 Tex.Cr.R. 592, 361 S.W.2d 395 (1962), this Court said:

“Appellant next complains of the admission of the letter in evidence over the objection of a variance because the letter contained more words, phrases, and language than the quoted phrases in the information. We find no error in admitting the letter in evidence, as the quoted phrases set out in the information were exactly as contained in the letter. The burden was upon the state to prove that the letter was written and sent. In making such proof, the entire letter was admissible, although it was not necessary to set out the letter in its entirety in the information. Bradfield v. State, supra. [73 Tex.Cr.R. 353, 166 S.W. 734]” 361 S.W.2d at 397.

Appellant’s contention is without merit.

The State’s motion for rehearing is granted. The reversal is set aside; the judgment is now affirmed.

. We do not imply that a communication could not be within the ambit of Section 42.07(a) if left, e. g., on complainant’s desk at work rather than handed over directly; we mean only that the writing must be delivered to a place personal to the complainant.