PD-0623-15
May 26, 2015
No. ________________
In The
COURT OF CRIMINAL APPEALS OF TEXAS
Austin, Texas
Elisa Merrill Wilson, Petitioner
v.
State of Texas, Respondent
On Appeal from County Court at Law No. 2 Fort Bend County, Texas
and from the First Court of Appeals, Houston, Texas
Trial Court Case No. 10CCR149142
Court of Appeals Case No. 01-11-01125-CR
PETITION FOR DISCRETIONARY REVIEW
Timothy A. Hootman
SBN 09965450
2402 Pease St
Houston, TX 77003
713.247.9548
713.583.9523 (f)
Email: thootman2000@yahoo.com
ATTORNEY FOR PETITIONER, ELISA
MERRILL WILSON
Oral argument requested
1
Table Of Contents
TABLE OF CONTENTS……………………………………………………………………………… 2
INDEX OF AUTHORITIES………………………………………………………………………….. 3
STATEMENT REGARDING ORAL ARGUMENT ……………………………………………….. 5
STATEMENT OF CASE ………………………………………………………………………………6
STATEMENT OF PROCEDURAL HISTORY ……………………………………………………… 7
QUESTIONS PRESENTED FOR REVIEW………………………………………………………… 8
ARGUMENT …………………………………………………………………………………………. 9
I. Introduction. ……………………………………………………………….….. 9
II. Texas preservation-of-error rules. ………………………………. 14
III. Federal due process and the Texas preservation-of-
error rules. …………………………………………………………………….. 16
IV. Vagueness and overbreadth.…..……………………………………. 20
PRAYER …………………………………………………………………………………………….. 31
CERTIFICATE OF WORD COUNT………………………………………………………………. 32
CERTIFICATE OF SERVICE ………………………………………………………………………32
APPENDIX…………………………….. Memorandum Opinion on Remand from the
First Court of Appeals
2
INDEX OF AUTHORITIES
Texas cases:
Ex parte Halstead, 147 Tex. Crim. 453, 182 S.W.2d 479 (1944)……………… 23
Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009)………. 8, 12, 14, 15
Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996)…………………….. 25, 30
May v. State, 765 S.W.2d 438 (Tex. Crim. App. 1989)……………………………23
Osterberg v. Peca, 12 S.W.3d 31 (Tex. 2000)……………………………………….. 19
Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002)…………………….. 22
Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010)……………………passim
State v. Wilson, 448 S.W.3d 418 (Tex. Crim. App. 2014)……………….. passim
Wilson v. State, 431 S.W.3d 92 (Tex. App.—Houston [1st Dist.] 2013)………. 9
U.S. Supreme Court cases:
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)………………………… 25
Broadrick v. Oklahoma, 413 U.S. 601 (1973)………………………………….. 25, 26
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)……………………………..26
Curtis Pub. Co. v. Butts, 368 U.S. 130 (1967)……………………………..………….17
Freytag v. Comm’r, 501 U.S. 868 (1991)………………………………………………. 17
Grayned v. Rockford, 408 U.S. 104 (1972)…………………………………….. 23, 24
New York v. Ferber, 458 U.S. 747 (1982)…………………………………………….. 25
Spence v. Washington, 418 U.S. 405 (1974)………………………………………….28
United States v. Olano, 507 U.S. 725 (1993)…………………………………………. 17
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489
(1982)……………………………………………………………………………………….23
Virginia v. Hicks, 539 U.S. 113 (2003)………………………………………………….24
Federal court of appeals cases:
Gormley v. Director, Conn. State Dep’t of Prob., 632 F.2d 938 (2nd Cir.
1980)……………………………………………………………………………………….. 27
Kramer v. Price, 712 F.2d 174 (5th Cir. 1983)…………………………………………25
3
Thorne v. Bailey, 846 F.2d 241 (4th Cir. 1988)……………………………………… 26
Out-of-state cases:
McKillop v. State, 857 P.3d 358 (Alaska Ct. App. 1993)………………………… 28
State v. Thorne, 333 S.E.2d 817 (W. Va. 1985)……………………………………… 29
4
STATEMENT REGARDING ORAL
ARGUMENT
Petitioner requests oral argument. This Court has given
conflicting messages as to when an argument may be raised for the
first time on appeal. Whether or if application of waiver and
forfeiture rules applies when a subsequent re-interpretation of a
statute has caused a party to “waive” an argument, or whether in
those situations such rules violate due process, raise significant
questions that warrant oral argument, especially in light of the
complexities of working through these questions under the
circumstances of this case.
5
STATEMENT OF THE CASE
A jury found appellant guilty of telephone harassment. The
court of appeals reversed and acquitted. This Court reversed and
remanded to have the remaining issues addressed that had been
raised in appellant’s brief in the court of appeals. On remand, the
court of appeals affirmed the conviction.
6
STATEMENT OF PROCEDURAL HISTORY
On May 9, 2013, the First Court of Appeals acquitted appellant
in a published opinion. Wilson v. State, 431 S.W.3d 92 (Tex. App.—
Houston [1st Dist.] 2013). This Court reversed and remanded to have
the remaining issues that had been raised in appellant’s brief in the
court of appeals addressed. State v. Wilson, 448 S.W.3d 418 (Tex.
Crim. App. 2014).
On March 31, 2015, the First Court of Appeals affirmed
appellant’s conviction with an unpublished opinion. Wilson v. State,
No. 01-11-01125-CR (Tex. App.—Houston [1st Dist.] 2015, March 31,
2015).
On April 14, 2015, appellant filed a motion for rehearing which
was denied on April 30, 2015.
7
QUESTIONS PRESENTED FOR REVIEW
Question one:
Does Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App.
2009) bar Wilson from arguing for the first time, after the
court of appeals and this Court have issued opinions, that
the harassment statute is vague and overbroad in
violation of the First and Fourteenth Amendment to the
U.S. Constitution?
Question two:
Does application of Texas’s preservation-of-error rules to
bar Wilson from raising her vagueness and overbreadth
challenges to the harassment statute after the court of
appeals and this Court have issued opinions—in a
supplemental brief on remand—violate federal due
process under the Fifth and Fourteenth Amendments of
the U.S. Constitution?
Question three:
Is section 42.07(a)(4) of the harassment statute as re-
interpreted in Wilson v. State, 448 S.W.3d 418 (Tex.
Crim. App. 2014) vague and overbroad on its face?
Question four:
Is section 42.07(a)(4) of the harassment statute as re-
interpreted in Wilson v. State, 448 S.W.3d 418 (Tex.
Crim. App. 2014) vague and overbroad as applied to the
facts developed in the trial court regarding appellant’s
conviction?
8
ARGUMENT
I. Introduction.
Wilson was convicted of the portion of the telephone
harassment statute that says:
A person commits an offense if, with intent to
harass, annoy, alarm, abuse, torment, or
embarrass another, he … makes repeated
telephone communications … in a manner
reasonably likely to harass, annoy, alarm,
abuse, torment, embarrass, or offend another.
TEX. PENAL CODE § 42.07(a)(4).
At the time of Wilson’s conviction, the relevant authority interpreting
this section was Scott v. State, 322 S.W.3d 662 (Tex. Crim. App.
2010), which held that “repeated telephone communications” meant
“more than one telephone call in close enough proximity to properly
be termed a single episode”. Id. at 669 n.12. Based on the Scott
interpretation, Wilson argued in the court of appeals that there was
legally insufficient evidence to support her conviction because the
telephone calls in her case were more than thirty days apart. Wilson
v. State, 431 S.W.3d 92, 94 (Tex. App.—Houston [1st Dist.] 2013)
rev’d, State v. Wilson, 448 S.W.3d 418 (Tex. Crim. App. 2014). The
court of appeals, also relying on the Scott interpretation, agreed with
Wilson and held that because the calls were not within a thirty-day
9
period of each other there was legally insufficient evidence to sustain
the conviction. Id. at 96 (citing Scott).
On the State’s petition for discretionary review, this Court
reversed the court of appeals’ judgment of acquittal by abrogating
Scott and re-interpreting the meaning of “repeated telephone
communications” such that (1) the phrase repeated telephone
communications no longer requires the communications to occur
within a certain time frame in relation to one another, and (2) “a
facially legitimate reason for the communication does not negate per
se an element of the statute.” Wilson, 448 S.W.3d at 420. On
rehearing in this Court, Wilson attempted to raise for the first time on
appeal the vagueness and overbreadth of the portion of the statute
that she was convicted of violating by arguing:
Under this Court’s prior interpretation of the
telephonic harassment statute there was no
need for Wilson to challenge the vagueness or
overbreath of the statute because, under Scott,
there was legally insufficient evidence to
sustain Wilson’s conviction based on the
evidence presented at trial. Because of this,
Wilson pursued her defense in the trial court
and on appeal on the basis of insufficiency,
without making the unnecessary and, under
Scott, unviable argument that the statute was
vague or subject to an overbreath challenge.
The court of appeals agreed with Wilson that
the evidence was insufficient under Scott and
10
acquitted. This Court, by reinterpreting the
language used in the statute, has created a
vagueness and overbreath problem with the
statute, which must now be raised by
appellant—under the Scott interpretation of
the statute there was no clear vagueness or
overbreath problem, but under the Wilson
interpretation there is. Namely, that the
statute as interpreted by this Court in its
opinion reversing the court of appeals’
decision to acquit Wilson does not require the
telephonic communications to occur within a
certain time frame in relation to one another
and that a facially legitimate reason for the
communications do not negate an element of
the statute. This interpretation causes the
statute to be vague and overbroad, according
to Supreme Court jurisprudence.
See Aplt. M. Rhr. at 4-5 filed in the Court of Criminal Appeals. The
majority of the Court denied the motion for rehearing without
opinion, but Justice Alcala wrote an opinion in dissent (joined by
Justices Johnson and Cochran) noting that, “Because there had been
no reason to challenge the vagueness or overbreadth of the telephone
harassment statute as this Court had interpreted its requirements in
Scott, appellant had no reason to assert that challenge until this
Court’s reformulation of the law in this case.” Wilson, 448 S.W.3d at
431. Thus, this Court did not reach the merits of Wilson’s vagueness
and overbreadth argument.
11
On remand in the court of appeals, Wilson filed a motion for
leave to file a supplemental brief, which was granted. In Wilson’s
supplemental brief she argued that (1) Karenev v. State does not bar
her from raising for the first time on appeal and after remand that the
harassment statute as re-interpreted by Wilson is vague or overbroad,
(2) the statute is vague and overbroad as re-interpreted by Wilson on
its face, and (3) the statute is vague and overbroad as re-interpreted
by Wilson as applied.
The court of appeals affirmed the conviction and wrote in its
memorandum opinion that “well-established error preservation rules
requiring that such complaints [e.g., the facial challenge] be made
both in the trial court and in the initial briefing on appeal preclude
our consideration of these arguments on remand” and therefore “we
hold that Wilson waived her facial challenge and thus decline to
consider it, because it was first raised in supplemental briefing on
remand.” Memo. Op. at 22, 24. Therefore, Wilson filed a motion for
rehearing arguing:
If it is true that Texas law results in a waiver of
the facial challenge complaint in this case by
not having raised it before Scott was
abrogated by Wilson, then those Texas waiver
rules violate appellant’s right to due process
under the fifth and fourteenth amendments of
12
the federal constitution. That is, state
preservation rules that are so harsh as to
violate federal due process are void under the
supremacy clause.
The motion for rehearing was denied without opinion.
Thus, two procedural and two substantive questions are
presented: (1) Do Texas preservation-of-error rules bar Wilson from
raising the vagueness and overbreadth challenges to the Wilson re-
interpretation of section 42.07(a)(4) of the harassment statute? If so,
(2) do those rules, under the circumstances of this case, violate
Wilson’s right to federal due process? (3) Does the Wilson re-
interpretation render section 42.07(a)(4) vague and overbroad on its
face? And, (4) does the Wilson re-interpretation cause section
42.07(a)(4) to be vague and overbroad as applied?
13
II. Texas preservation-of-error rules.
Question one:
Does Karenev v. State, 281
S.W.3d 428 (Tex. Crim. App.
2009) bar Wilson from
arguing for the first time, after
the court of appeals and this
Court have issued opinions,
that the harassment statute is
vague and overbroad in
violation of the First and
Fourteenth Amendment to the
U.S. Constitution?
Generally, a vagueness and overbreadth challenge may not be
raised for the first time on appeal. See Karenev v. State, 281 S.W.3d
428, 434 (Tex. Crim. App. 2009). This is because the “State and the
trial court should not be required to anticipate that a statute may later
be held to be unconstitutional” absent an initial challenge in the trial
court. Id. This rationale applies to Wilson in this case who should
not be required to have anticipated that section 42.07(a)(4) of the
harassment statute would be re-interpreted by this Court as a
prerequisite to challenging the yet-to-exist re-interpretation later on.
If such a rule were taken seriously by appellate lawyers, anticipatory
preservation steps inundate appellate records and briefs in a very
confusing and inefficient way. This petition should be granted to
clarify whether that really is the state of Texas preservation-of-error
14
law in the context of significant statutory re-interpretations by this
Court. If is suggested that this is not the law in Texas as evidenced
by Karenev and Justice Alcala’s dissent regarding denial of rehearing
in Wilson.
This same rationale applies to Wilson in this case; namely, she
should not be required to anticipate that a statute will be re-
interpreted by this Court barring her from raising the constitutional
infirmities of the new interpretation because she did not raise the
challenge for the first time in the trial court. The concurring opinion
in Karenev by Justice Cochran (joined by Justices Price, Womack and
Johnson) makes clear that in the appropriate circumstance, a
vagueness and overbreadth challenges can be raised for the first time
on appeal. Id. at 435-41. This case presents such an appropriate case,
and therefore, the court of appeals should have addressed the
vagueness and overbreadth challenges presented in Wilson’s
supplemental brief on remand. In short, Wilson should be allowed to
raise the vagueness and overbreadth challenges for the first time on
appeal, and in the court of appeals, and this Court should grant this
petition because the court of appeals’ holding on remand that Wilson
15
“waived her facial challenge” is in conflict with Karenev and Justice
Alcala’s statement in her dissenting opinion in Wilson.
III. Federal due process and the Texas
preservation-of-error rules.
Question two:
Does application of Texas’s
preservation-of-error rules to
bar Wilson from raising her
vagueness and overbreadth
challenges to the harassment
statute after the court of
appeals and this Court have
issued opinions—in a
supplemental brief on
remand—violate federal due
process under the Fifth and
Fourteenth Amendments of
the U.S. Constitution?
It would make no sense for Wilson to have argued in her first
brief on appeal that “under Scott there is insufficient evidence, but
just in case Scott is overruled by way of a possible future
reinterpretation of section 42.07(a)(2) by the Court of Criminal
Appeals different from Scott thus allowing for the record in this case
to contain sufficient evidence, that reinterpretation gives rise to a
facial challenge which is being raised now.” This speculative
argument is what Wilson would have had to lodge under the court of
appeals’ failure-to-preserve holding if she wanted to have the merits
16
addressed after Scott was abrogated by Wilson—of course it could not
have been addressed before Scott was abrogated because the facial
challenge alone arose after Scott was abrogated. If the court of
appeals is correct and this truly is the state of Texas preservation
rules, then they violate federal due process in the procedural context
of this case.
Of course, an objection must be raised timely, meaning when
the opportunity first arises. Timeliness problems are presented when
a right or rule is first created after trial but before resolution of a case
on appeal. In these situations, federal due process requires that a
party be allowed to raise the objection for the first time on appeal.
See Curtis Pub. Co. v. Butts, 368 U.S. 130 (1967). It is illogical and
unfair to require an objection before the problem even exists. Texas
preservation rules to the contrary violate federal due process.
Whereas waiver involves the “intentional relinquishment of a
known right,” forfeiture implies the “failure to make the timely
assertion of a right.” United States v. Olano, 507 U.S. 725, 733
(1993); see also Freytag v. Comm’r, 501 U.S. 868, 895 n.2 (1991). In
this case, this distinction is important because, clearly, Wilson did not
waive the facial challenge complaint. Thus, this court of appeals’
17
conclusion that the error was not properly preserved under Texas
preservation law turns on the timeliness question in the forfeiture
context.
Texas preservation of error rules require that an objection be
made when the opportunity first arises. If the rule in Texas is that a
party must object to an adverse law that does not even exist as a
prerequisite to challenging the yet-to-exist law later, then application
of that Texas rule to this case violates federal due process because it is
unfair to impose such an impossible burden on a party. Such a
burden violates basic notions of rule-of-law—if there is a rule, a party
is entitled to rely on it without being required to make futuristic
ascertainments about the rule’s being abrogated. See LON L. FULLER,
THE MORALITY OF LAW 106 (rev. ed. 1969). Perhaps the most basic
element underlying all of the criteria of the rule of law is that human
actors can fairly comply with the law. If human actors cannot fairly
comply with the law, not only does that particular law fail to obey the
rule of law, but it also calls into question the entire enterprise of law
as a set of rules that can and should govern human conduct. For
Texas preservation-of-error rules to be so esoteric and Byzantine to
require inclusion of predictions of how a statute will be reinterpreted
18
violates fundamental notions of rule of law and therefore federal due
process.
Federal constitutional law in this regard states that when
deciding whether a party has waived its federal constitutional claims
in state court, courts look first to procedural rules that govern when a
party must raise those claims and then consider whether those
procedural rules are adequate as a matter of federal substantive
constitutional law to protect the constitutional interests at stake.
Osterberg v. Peca, 12 S.W.3d 31 (Tex. 2000). Moreover, regarding
first amendment issues, as in this case, waiver must be shown by clear
and compelling circumstances. Id. A court has a heightened duty to
protect fundamental rights, such as those protected by the first
amendment of the federal constitution. Application of state
preservation of error rules so as to avoid reaching the merits of a
fundamental rights issue can itself be a violation of federal due
process. Application of forfeiture or waiver to Wilson in this case,
where she raised the facial challenge to TEX. PENAL CODE ANN. §
42.07(a)(4) when the opportunity first arose, violates Wilson’s right
to due process of law as protected by the fifth and fourteenth
amendment of the federal constitution. Therefore, if it is true that
19
Texas law is as the court of appeals held that Wilson did not preserve
the constitutional issues she seeks to raise, that Texas law violates
federal due process. These important, and fundamental, questions
should be addressed by this Court via this petition for discretionary
review.
IV. Vagueness and overbreadth.
Question three:
Is section 42.07(a)(4) of the
harassment statute as re-
interpreted in Wilson v. State,
448 S.W.3d 418 (Tex. Crim.
App. 2014) vague and
overbroad on its face?
Question four:
Is section 42.07(a)(4) the
harassment statute as re-
interpreted in Wilson v. State,
448 S.W.3d 418 (Tex. Crim.
App. 2014) vague and
overbroad as applied to the
facts developed in the trial
court regarding appellant’s
conviction?
Subsection (a)(4) of the harassment statute, as re-interpreted
by this Court in Wilson, is void for vagueness and overbreadth in
violation of the First and Fourteenth Amendments to the United
States Constitution. That is, the statute is “facially” unconstitutional
without reference to the particular facts presented in the trial court
20
record of this case; the statute is “as applied” unconstitutional
because, as re-interpreted by this Court in Wilson, it is inherently
vague in reference to Wilson’s conduct. More specifically, as
interpreted, subsection (a)(4)’s phrase “causes the telephone of
another to ring repeatedly or makes repeated telephone
communications anonymously or in a manner reasonably likely to
harass, annoy, alarm, abuse, torment, embarrass, or offend another”
is unconstitutionally vague because it is impossible for Wilson or any
other citizen to know what is prohibited. This Court has concluded in
Wilson that the legislature intended by the statute (1) that the phrase
repeated telephone communications does not require the
communications to occur within a certain time frame in relation to
one another, and (2) that a facially legitimate reason for the
communication does not negate per se an element of the statute. See
Wilson. This broadened re-interpretation from what was prohibited
under the Scott interpretation makes it impossible to know when
calls beyond one call and what content of a telephone call are
tantamount to criminal conduct, thereby implicating vagueness and
overbreadth problems “facially” with respect to all citizens and “as
21
applied” with respect to the specific conduct presented in the record
of this case.
When reviewing a challenge to the constitutionality of a statute,
it is presumed that the statute is valid and that the legislature acted
reasonably in enacting the statute. Rodriguez v. State, 93 S.W.3d 60,
69 (Tex. Crim. App. 2002). Here, it should be kept in mind that the
in Scott and Wilson this Court was interpreting the legislative intent
as to what the legislature meant when using the words employed in
the harassment statute. That is, the Court was interpreting the
statute; it was not considering whether the statute violated the federal
constitution. Interestingly enough, the new and broad Wilson re-
interpretation gives rise to the question of whether the statute is
overly vague and overly broad, a question that was not addressed by
this Court. Now that this Court has clarified what the legislature
intended by use of the words contained in the statute, the
constitutional questions are ripe for consideration. And, to repeat, as
a starting point, it is presumed that the statute is constitutional.
Rodriguez, 93 S.W.3d at 69.
Additionally, if First Amendment freedoms are not implicated,
Wilson must show that the statute is unconstitutional as applied to
22
her conduct. See Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 495 (1982). On the other hand, if the
statute’s language is capable of reaching protected speech or
otherwise threatens to inhibit the exercise of constitutional rights, a
stricter vagueness standard applies than when the statute regulates
unprotected conduct. Id. at 497. That is, when speech is at stake,
Wilson is allowed to raise a facial vagueness challenge without
showing the statute is vague as applied to her conduct because the
otherwise continued existence of the statute in unnarrowed form
would tend to suppress constitutionally protected rights. Id.
A legislative enactment is void for vagueness if its prohibitions
are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104,
108 (1972); May v. State, 765 S.W.2d 438, 439 (Tex. Crim. App.
1989); see also Ex parte Halstead, 147 Tex. Crim. 453, 182 S.W.2d
479, 482 (1944). Although overbreadth and vagueness challenges
often appear in tandem, they are distinct concepts. “An overbroad
statute is one designed to burden or punish activities which are not
constitutionally protected, but … includes within its scope activities
which are protected by the First Amendment.” John E. Novak, et. al.,
Constitutional Law, ch. 18, § III at 868 (2d ed. 1983); see also
23
Virginia v. Hicks, 539 U.S. 113, 123 S.Ct. 2191, 2196 (2003). In
contrast, a statute is unconstitutionally vague if it fails to give “a
person of ordinary intelligence a reasonable opportunity to know
what is prohibited, so that he may act accordingly” or if it allows for
arbitrary and discriminatory enforcement by failing to provide an
objective standard for those who are charged with enforcing or
applying the law. Grayned, 408 U.S. at 108.
The U.S. Supreme Court’s Grayned opinion elaborates on the
vagueness problem:
Vague laws offend several important values.
First, because we assume that man is free to
steer between lawful and unlawful conduct, we
insist that laws give the person or ordinary
intelligence a reasonable opportunity to know
what is prohibited, so that he may act
accordingly. Vague laws may trap the
innocent by not providing fair warning.
Second, if arbitrary and discriminatory
enforcement is to be prevented, laws must
provide explicit standards for those who apply
them. A vague law impermissibly delegates
basic policy matters to policemen, judges, and
juries for resolution on an ad hoc and
subjective basis, with the attendant dangers of
arbitrary and discriminatory application.
Third, but related, where a vague statute abuts
upon sensitive areas of basic First
Amendment freedoms, it operates to inhibit
the exercise of those freedoms. Uncertain
meanings inevitably lead citizens to steer far
wider of the unlawful zone that if the
24
boundaries of the forbidden areas are clearly
marked.
Id. at 108-09 (quotations omitted); see also Long v. State, 931 S.W.2d
285, 287 (Tex. Crim. App. 1996); Kramer v. Price, 712 F.2d 174, 176-
77 (5th Cir. 1983) (case striking down pre-1983 version of the Texas
harassment statute), vacated on reh’g, 716 F.2d 284 (1983), trial
court aff’d after statute repealed, 723 F.2d 1164 (1984).
On the other hand, the purpose of the overbreadth doctrine is to
protect those persons who, although their speech or conduct is
constitutionally protected, “may well refrain from exercising their
rights for fear of criminal sanctions susceptible of application to
protected expression.” New York v. Ferber, 458 U.S. 747, 768 (1982)
(quotation omitted). While the Constitution “gives significant
protection from overbroad laws that chill speech within the First
Amendment’s vast and privileged sphere,” Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 244 (2002), the application of the
overbreadth doctrine is “strong medicine” to be employed “only as a
last resort,” Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). Thus,
“[i]t remains a matter of no little difficulty to determine when a law
may properly be held void on its face and when such summary action
is inappropriate.” Broadrick, 413 U.S. at 615 (quotations omitted).
25
The overbreadth of a statute must be real and substantial, judged in
relation to the statute’s plainly legitimate sweep. See Broadrick, 413
U.S. at 615. The criterion of substantial overbreadth precludes a
court from invalidating a statute on its face simply because of the
possibility, however slight, that it might be applied in some
unconstitutional manner. See Secretary of State of Md. V. J.H.
Munson Co., 467 U.S. 947, 964-65 (1984). If a statute is found to be
substantially overbroad, the statute must be invalidated unless the
court can supply a limiting construction or partial invalidation that
narrows the scope of the statute to constitutionally acceptable
applications. Broadrick, 413 U.S. at 615-16.
It is well established that “[r]esort to epithets or personal abuse
is not in any proper sense communication of information or opinion
safeguarded by the Constitution, and its punishment as a criminal act
… raise[s] no question under that instrument.” Cantwell v.
Connecticut, 310 U.S. 296, 309-10 (1940); see also Chaplinsky v.
New Hampshire, 315 U.S. 568, 572 (1942). As one federal court has
stated, “ ‘[p]rohibiting harassment is not prohibiting speech, because
harassment is not … protected speech.’ ” Thorne v. Bailey, 846 F.2d
241, 243 (4th Cir. 1988), quoting State v. Thorne, 333 S.E.2d 817, 819
26
(W. Va. 1985) (upholding West Virginia’s telephone harassment
statute). Such “speech” is more properly termed conduct and is
therefore not subject to First Amendment protection. Thorne, 846
F.2d at 243 (telephone harassment statute “prohibits conduct and not
protected speech”); Gormley v. Director, Conn. State Dep’t of Prob.,
632 F.2d 938, 941-42 (2nd Cir. 1980) (Connecticut’s telephone
harassment statute “regulates conduct, not mere speech. What is
proscribed is the making of a telephone call, with the requisite intent
and in the specified manner.”).
On the other hand, a telephone call can be, and generally is,
speech and not conduct, thereby invoking First Amendment
protection. Whether the communications in this case are protected
speech versus prohibited conduct is the essential gravamen. The
legislative intent as reflected in the statute (according to Wilson)
moves the line dividing these two concepts significantly, thereby
implicating the vagueness and overbreadth problems. That is, under
the Wilson re-interpretation of what the legislature intended by the
statute (1) the phrase repeated telephone communications does not
require the communications to occur within a certain time frame in
27
relation to one another, and (2) a facially legitimate reason for the
communication does not negate per se an element of the statute.
“In deciding whether particular conduct possesses sufficient
communicative elements to bring the First Amendment into play,
[the U.S. Supreme Court has] asked whether ‘[a]n intent to convey a
particularized message was present, and [whether] the likelihood was
great that the message would be understood by those who viewed it.”
Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v.
Washington, 418 U.S. 405, 410-11 (1974)).
According to at least one appellate opinion that is in keeping
with U.S. Supreme Court admonishments, a telephonic harassment
statute is not vague and overly broad if it is written so as “to prohibit
telephone calls only when the call has no legitimate communicative
purpose—when the caller’s speech is devoid of any substantive
information and the caller’s sole intention is to annoy or harass the
recipient.” McKillop v. State, 857 P.3d 358, 364 (Alaska Ct. App.
1993). The legislative intent regarding the harassment statute (as
clarified by Wilson) is squarely opposed to this refrain. Under the
Wilson re-interpretation the “facially legitimate reason for the
communication does not negate per se an element of the statute.”
28
That is, any call after the first harassing call at any time is subject to
criminal liability, even if the content of the second call contains
objectively non-harassing substantive content and is made more than
thirty days after the first call. Given that this is what the legislature
intended by adopting the harassment statute, the vagueness and
overbreadth doctrines are violated because from a “facial attack”
perspective in is impossible to know what calls are criminal—
apparently any calls beyond one are criminal if they are annoying,
such as annoying sales calls, political campaign calls, or calls from
exes. See Wilson, (Keller, P.J., concurring) and (Cochran, J.,
concurring). And from an “as applied” perspective, appellant’s
conduct as described in the court of appeals’ original opinion was
neutral in content and spread out of a relatively long period of time
which would be hard are impossible to know is criminal under the
statute. First amendment freedoms are implicated because the re-
interpretation covers not only calls intended to be harassing speech,
which is not protected, but also non-harassing speech that is intended
to communicate proper information and ideas. The statute’s
amazingly broad attempt to define what annoys and alarms people
and its failure to specify beyond (1) that the phrase repeated
29
telephone communications does not require the communications to
occur within a certain time frame in relation to one another, and (2)
that a facially legitimate reason for the communication does not
negate per se an element of the statute causes it to be
unconstitutionally vague on its face and as applied to the facts of this
case. The vagueness of the proscribed conduct described could be
reduced, for example, by linking it to more specific conduct, such as a
specific time frame between calls, a specific number of calls beyond
which is harassing, or facially neutral communications as being
beyond the reach of the statute. See Long, 931 S.W.2d at 293-94
(examining the Fifth Circuit analysis of the re-1983 Texas harassment
statute in Kramer).
Finally, it should be noted that for this Court to conclude that
the harassment statute is vague and over broad in violation of the
First and Fourteenth Amendments to the U.S. Constitution does no
offense to the Wilson opinion by this Court because there the Court
was not confronted with the constitutional challenge, was only
focusing on the statutory construction question of what exactly the
legislature intended by the words employed in the statute, and
therefore was deferring to later courts, such as this Court now or the
30
court of appeals on remand to take the first bite at determining the
constitutional infirmities of the statute.
PRAYER
Petitioner prays that this petition be granted, that briefing on
the merits be ordered, and that this case be reversed and the original
judgment of acquittal be reinstated, or that the case be remanded to
the court of appeals for further consideration.
Respectfully submitted,
/s/Timothy A. Hootman_____
TIMOTHY A. HOOTMAN
SBN 09965450
2402 Pease St
Houston, TX 77003
713.247.9548
713.583.9523 (f)
E-mail: thootman2000@yahoo.com
ATTORNEY FOR PETITIONER
31
CERTIFICATE OF WORD COUNT
I hereby certify that, in accordance with Rule 9.4 of the Texas
Rules of Appellate Procedure, that the number of words contained in
this document are 4,445 according to the computer program used to
prepare this document.
Dated: May 26, 2015.
/s/Timothy A. Hootman_____
Timothy A. Hootman
CERTIFICATE OF SERVICE
I hereby certify that, in accordance with Rule 9.5 of the Texas
Rules of Appellate Procedure, I have served the forgoing document
upon the following attorneys by electronic service:
John J. Harrity III
Assistant District Attorney
Fort Bend County
301 Jackson St, Rm 101
Richmond, TX 77469
Lisa C. McMinn
John R. Messinger
P.O. Box 13046
Austin, TX 78711
Dated: May 26, 2015.
/s/Timothy A. Hootman_____
TIMOTHY A. HOOTMAN
32
Opinion issued March 31, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-01125-CR
———————————
ELISA MERRILL WILSON, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2
Fort Bend County, Texas
Trial Court Case No. 10CCR149142
MEMORANDUM OPINION
In 2011, a Fort Bend County jury found Elisa Wilson guilty of telephone
harassment, and the trial court assessed punishment of 180 days in jail, probated
for 12 months. See TEX. PENAL CODE ANN. § 42.07(a)(4) (West Supp. 2014).
Wilson appealed her conviction, raising four issues: (1) that the evidence was
insufficient to support the conviction; (2) that the trial court erred in rejecting
Wilson’s proffered jury instruction; (3) that the trial court abused its discretion in
overruling Wilson’s objection to the State’s extraneous-offense evidence; and (4)
that the trial court abused its discretion in excluding proffered defense evidence.
On original submission to this court, we found the evidence insufficient and, as a
result, reversed. The Court of Criminal Appeals reversed, holding that evidence
that Wilson left six telephone messages for Nicole Bailey over a 10-month period
supported the statutory requirement of “repeated telephone calls” and that the
benign content, or the facially legitimate purpose, of a telephone call does not
legally negate the prohibited intent of the call. The Court of Criminal Appeals
remanded the case to this Court for consideration of Wilson’s jury-charge and
evidentiary complaints. Also, Wilson seeks to raise both facial and as-applied First
Amendment challenges to the telephone harassment statute in a supplemental brief
filed after remand. We affirm.
Background
The information against Wilson charged that, “on or about April 6, 2009
thr[ough] March 3, 2010, [Wilson] did then and there, with intent to harass, annoy,
alarm, abuse, torment or embarrass Nicole Bailey, make repeated telephone
communications to Nicole Bailey in a manner reasonably likely to harass or annoy
or alarm or abuse or torment or embarrass or offend the said Nicole Bailey.” The
2
jury heard evidence that Wilson left six telephone messages for Bailey, on April 6,
2009, June 11, 2009, August 31, 2009, September 5, 2009, December 23, 2009,
and February 5, 2010. In these messages, Wilson:
• said that she saw a dog in her yard that looked like another
neighbor’s dog and asked Bailey to let them know that the
neighbor could come pick it up if they were missing their dog;
• told Bailey that she did not want Bailey to talk to her or
approach her in public ever again;
• referred to an incident that occurred on August 30, 2009, in
which Wilson followed Bailey through a grocery store
screaming at her; Wilson said that she was caught off guard
and thought “it was an attack,” and stated that she was calling
to say she was sorry;
• complained that the work Bailey was having done on her
driveway was against the deed restrictions;
• told Bailey that she saw what looked like cement debris from
the driveway job that needed to be cleaned up, and that she
was asking her “nicely this time”; and
• reminded Bailey that Wilson had surveillance cameras, told
Bailey that she could “come pick up her newspaper,” and
warned Bailey to leave her alone and not “accost” or “harass”
her any more.
The content of Wilson’s calls was not overtly harassing. For this reason, the
State sought to admit evidence of Wilson’s various interactions with Bailey and
other neighbors over the course of several years.
3
Bailey moved into a Fort Bend County subdivision in 2000. She became
acquainted with her neighbors, the Wilsons. After Stephanie Ballard and her
husband moved into the neighborhood, they all became friends and socialized
frequently. Bailey and Wilson developed a close friendship, which they likened to
a “mother-daughter” relationship. Ballard and Bailey, who were nearer each other
in age, also became close friends.
The first witness to testify at trial was Stephanie Ballard. In December
2004, the Ballards held a Christmas party, which Bailey and the Wilsons attended.
The party took on a celebratory tone until the conversation turned to politics.
Ballard’s husband said something that upset Wilson. She raised her voice, and,
using profanity, left abruptly.
The Ballards’ relationship with Wilson became strained. When Wilson set
off fireworks in early 2005, Ballard, upset that the noise had awakened her toddler,
went outside and confronted Wilson. The next day, she went to Wilson’s home to
discuss the situation, Wilson invited her into her dining room, went into the
kitchen, and returned holding a revolver, which she placed on the table pointing
toward Ballard. Then, Wilson told Ballard, “If you would like to talk, let’s go
ahead and talk.” Wilson explained to Ballard her understanding of her legal right
to set off fireworks.
4
After that incident, Wilson set off fireworks with greater frequency,
beginning early in the morning and sometimes hourly. Ballard filed a lawsuit in
the justice court seeking a “peace bond” to prevent Wilson from setting off
fireworks. Bailey agreed to appear at the hearing on Ballard’s behalf. The
proceeding was unsuccessful; the justice court decided that Wilson was acting
within her rights to set off the fireworks.
After the hearing, Wilson became even more hostile to Ballard and turned
against Bailey for siding with Ballard. She continued discharging fireworks and
made other loud noises with an air horn and her car horn. According to Ballard,
Wilson reported child abuse to Children’s Protective Services, alleging that Ballard
was mentally unstable and that she “was involved in a pornographic pedophile
website, that [her] children were being used for a pornographic website of some
sort.”
In December 2005, the Ballards went to Bailey’s home to greet her during
the holidays and encountered Wilson, who had also been invited. Wilson leaned
toward Ballard’s husband to greet him, and he backed away from her. Shortly
thereafter, the Ballards received a letter from Wilson’s lawyer alleging that Ballard
had assaulted Wilson during the incident. Around the same time, the Ballards
found nails in their car tires, which they attributed to Wilson. Ballard testified to
various other incidents involving Wilson, including the following:
5
• When Ballard returned home from the hospital with her second child,
she noticed a sign in Wilson’s window stating: “Never mind the gun.
Beware of the neighbor”;
• Wilson took pictures of her and her children when they were out in
the front yard;
• Wilson filed a false report with Animal Control that the Ballards
allowed their dog to run loose in a rabid state.
Ballard explained that she and her family moved from the neighborhood
specifically because of Wilson’s behavior toward them. After they moved, Ballard
testified, Wilson
• came to Ballard’s workplace and told Ballard to stop sending her
letters, which Ballard had not sent in the first place;
• told Ballard’s boss, “Do you know . . . what kind of person you have
working for you?,” after which she was dismissed from the premises;
• called Ballard twice on her cell phone in January 2010 and talked
about incidents with her (and Ballard’s former) neighbors, which
Ballard found harassing; and
• came up to the Ballards in a restaurant and told them how much she
liked their new house, which unnerved Ballard because she had taken
lengths to keep Wilson from knowing her new home’s location and
Wilson’s description indicated that she knew where they lived.
The second witness to testify at trial was Tim Simmons, the neighborhood’s
representative to the homeowner’s association. Simmons related his experience in
dealing with Wilson in 2001, when the HOA sought easements from residents to
build a community fence around the perimeter. Simmons testified that Wilson
6
agreed to allow the fence to be on her property, but that she resisted signing an
easement to the HOA. Simmons also testified to many neighborhood complaints
he received about Wilson, including a 2006 complaint from Ballard about Wilson’s
use of firecrackers, and that the association had received fewer complaints about
Ballard and none about Bailey. Simmons recalled that Wilson began screaming at
him and his wife at an HOA meeting. In a 2007 election, Wilson’s husband ran
against Simmons for the neighborhood representative position and lost. The
following Halloween, Wilson decorated her fence with a ghoulish figure and put a
sign on it with the name “Sam” referring to Simmons’s wife.
The third witness was Lisa Decoster, another of Wilson’s neighbors.
Decoster testified that in 2005 and 2006, she took care of the Wilsons’ dog when
they were away. She described the Wilson’s home as “unusual,” because it had pet
feces on the floor and multiple law books on the dining room table. Decoster
corroborated Simmons’s testimony that Wilson was argumentative at HOA
meetings. Decoster also testified Wilson taped a letter on neighborhood doors in
November 2007 that talked about Stephanie Ballard in a “negative” and
“derogatory” way and had nothing to do with the ongoing HOA election.
According to Decoster, Wilson pointed out Bailey’s home to her and told her that
that Bailey made pornography videos and was a drug dealer.
7
The first day of trial closed with testimony from Joan Hendricks, another
neighbor. Like Ballard and Bailey, Hendricks had been friends with Wilson but
was no longer. Hendricks buttressed previous testimony concerning Wilson’s
behavior, including her propensity to set off fireworks and make other loud noises,
her animosity toward Simmons’s wife, problems with Wilson’s behavior raised at
HOA meetings, and Wilson’s false assault allegations against Ballard’s husband.
Hendricks recounted that her friendship with Wilson ended in late 2008.
Hendricks had watched the Wilsons’ home when they were out of town, and, when
the Wilsons returned, Wilson made a police report falsely alleging that Hendricks’s
daughter had taken Wilson’s car for a joyride. Hendricks told the jury that Wilson
would throw firecrackers at her husband when he was out or at their cars in the
driveway. She also described an incident where she saw Wilson walking in the
street with a large kitchen knife, which, Wilson told her, was to protect herself
against loose dogs.
Enrique Ozuna, who married Nicole Bailey in 2011, testified the following
morning. He explained that he first encountered Wilson while at the grocery store
with Bailey and that Wilson had screamed at them and accused them of being
involved in prostitution.
Bailey testified next. She described her circumstances when she moved into
the neighborhood and how she became friends with Wilson. She recounted a trip
8
that she took with Wilson to California following the death of Wilson’s father, and
that Bailey was taken aback at Wilson’s confrontations with her former
stepmother, whom Wilson accused of having murdered him, and area law
enforcement.
Bailey explained that her friendship with Wilson ended when she testified on
behalf of the Ballards at the peace bond proceeding. Wilson sued Bailey for
negligence under her homeowner’s insurance policy based on the December 2005
incident involving Ballard’s husband.
Bailey testified that she sent letters to Wilson and her lawyer in April 2006
asking Wilson to stop calling her. According to Bailey, three CPS complaints were
made concerning Ballard’s children and included allegations that Bailey was using
the children for internet pornography. Bailey also described Wilson’s 2008
Halloween decorations and the reference to Simmons’s wife. According to Bailey,
Wilson also harassed her by calling the police and feigning concern that Bailey
was suicidal, which caused the police to visit Bailey’s home. Bailey explained the
situation to the police, and the police instructed Wilson to stop communicating
with Bailey. Wilson retaliated by throwing dog feces into Bailey’s yard and
throwing fireworks at her car.
9
Bailey testified to the details of the messages that Bailey left on her
telephone answering machine on six occasions—April 6, 2009; June 11, 2009;
August 31, 2009; September 5, 2009; December 23, 2009; and February 5, 2010.
Officer Stevenson with the Fort Bend County Sheriff’s Department testified
about his investigation of the harassment complaint made by Ballard. He learned
of Wilson’s treatment of Bailey in the course of that investigation, and he recorded
Bailey’s statement to serve as the basis for her harassment complaint.
Discussion
I. Charge Error
During the charge conference, Wilson asked the trial court to include her
proposed definition for “repeated telephone communications” to mean “more than
one telephone call in close enough proximity to properly be termed a single
episode.” The trial court refused the instruction which, Wilson claims, was error.
The trial court must give the jury a written charge that sets forth the law
applicable to the case. TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). We
review a claim of jury-charge error using the procedure set out in Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1985), which first requires us to determine
whether there is error in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex.
Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim.
App. 2003)). Where, as here, the appellant has properly preserved a claim of
10
charge error by an objection or request for instruction, we must reverse if the error
is calculated to injure the defendant’s rights, that is, if there was “some harm.”
Treviño v. State, 100 S.W.3d 232, 242 (Tex. Crim. App. 2003).
The Court of Criminal Appeals disavowed our reliance on the proffered
instruction in overruling Wilson’s legal sufficiency challenge. See State v. Wilson,
448 S.W.3d 418, 422–23 (Tex. Crim. App. 2014). In the context of Wilson’s
charge complaint, we look to whether the instruction properly set forth the law
applicable to the case.
The Court of Criminal Appeals held that the trial court erred in submitting
an instruction purporting to define a statutorily undefined term in Kirsch v. State,
357 S.W.3d 645 (Tex. Crim. App. 2012). The defendant was charged with DWI
under section 49.04 of the Texas Penal Code, which provides that “[a] person
commits an offense if the person is intoxicated while operating a motor vehicle in a
public place.” TEX. PENAL CODE ANN. § 49.04(a), quoted in Kirsch, 357 S.W.3d at
649–50. In that case, the defendant objected to the inclusion in the charge of the
definition of “operate” as “to exert personal effort to cause the vehicle to function.”
The Court looked to the Code Construction Act for guidance, which
provides that statutorily undefined words and phrases shall be “construed
according to the rules of grammar and common usage.” Kirsch, 357 S.W.3d at 650
(quoting TEX. GOV’T CODE ANN. § 311.011). Words that have a technical or
11
particular legal meaning may require definition in the charge, but common terms
that have not acquired a technical meaning and may be interpreted according to
their common usage need not be defined. Id.; see Medford v. State, 13 S.W.3d
769, 772 (Tex. Crim. App. 2000) (explaining that jurors should be provided
uniform definition of statutorily undefined terms like “arrest,” which have acquired
precise legal meaning).
The Court classified “operate” as a common term subject to interpretation
according to its common usage, observing that “nothing in our case law suggests
that a risk exists that jurors may arbitrarily apply an inaccurate definition to the
term ‘operate’ or that an express definition is required to assure a fair
understanding of the evidence.” Kirsch, 357 S.W.3d at 650. It concluded that,
“[a]lthough the definition set forth in the charge is an appropriate definition for an
appellate court to apply in assessing the sufficiency of the evidence to support the
‘operate’ element, instructing the jurors as to that definition in this case
impermissibly guided their understanding of the term” and improperly focused the
jury on certain evidence, making it an improper comment on its weight. See id. at
652.
In this case, the Court of Criminal Appeals abrogated earlier caselaw and
held that the term “repeated” in the telephone harassment statute “simply speaks in
terms of the number of telephone communications, it does not attempt to define the
12
required frequency of the communications or temporal proximity of one
communication to another.” Wilson, 448 S.W.3d at 424. As a common term, the
jury was entitled to rely on its understanding of “repeated.” See id. Thus, similar
to the challenged definition in Kirsch, the proffered definition would have
impermissibly confined the jury’s understanding of the term and improperly
focused them on the frequency of the calls and the length of time between them,
constituting an improper comment on the weight of the evidence. Accordingly, we
hold that the trial court correctly rejected the proffered definition. See Kirsch, 357
S.W.3d at 652.
II. Evidentiary Complaints
A. Standard of review
We review the trial court’s evidentiary rulings for abuse of discretion. See
Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009); Montgomery v.
State, 810 S.W.2d 372, 380, 391 (Tex. Crim. App. 1990). A trial court abuses its
discretion if its decision is outside the zone of reasonable disagreement or if it acts
without reference to guiding rules or principles. Burden v. State, 55 S.W.3d 608,
615 (Tex. Crim. App. 2001); Montgomery, 810 S.W.2d at 391. If the ruling was
correct under any theory of law applicable to the case, we must uphold the
judgment. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005).
13
B. Admission of extraneous-act evidence
Wilson challenges the trial court’s admission of evidence of many incidents
demonstrating her problematic and deteriorating behavior in the neighborhood
toward various neighbors over a span of several years. Wilson objected to the
evidence under Texas Rules of Evidence 403 and 404(b) before and during trial
and received running objections to the State’s use of the evidence throughout the
trial, preserving her challenge for appellate review. See Clark v. State, 365 S.W.3d
333, 339 (Tex. Crim. App. 2012) (citing TEX. R. APP. P. 33.1(a)(1)(A)).
Rule 404(b) provides that “[e]vidence of other crimes, wrongs or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” TEX. R. EVID. 404(b). The Supreme Court of the United States has
explained that
Rule 404(b) is rooted in the common-law tradition of disallowing the
prosecution for using any evidence of a defendant’s evil character to
establish probability of his guilt. . . . The state may not show
defendant’s prior trouble with the law, specific criminal acts, or ill
name among his neighbors, even though such facts might logically be
persuasive that he is by propensity a probable perpetrator of the crime.
The inquiry is not rejected because character is irrelevant; on the
contrary, it is said to weigh too much with the jury and to so over
persuade them as to prejudge one with a bad general record and deny
him a fair opportunity to defend against a particular charge.”
Michelson v. United States, 335 U.S. 469, 475–76, 69 S. Ct. 213, 218 (1948),
quoted in Old Chief v. United States, 519 U.S. 172, 182, 117 S. Ct. 644, 650–51
14
(1997). Rule 404(b) further provides that evidence may be admissible for other
purposes, “such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” TEX. R. EVID. 404(b); see
Old Chief, 519 U.S. at 187, 117 S. Ct. at 653. For purposes of justifying the
admission of extraneous-offense evidence, intent is a contested issue if the required
intent for the primary offense cannot be inferred from the act itself or if the
defendant presents evidence to rebut the inference that the required intent existed.
Caro v. State, 771 S.W.2d 610, 617 (Tex. App.—Dallas 1989, no pet.); McGee v.
State, 725 S.W.2d 362, 364 (Tex. App.—Houston [14th Dist.] 1987, no pet.).
Wilson complains that the extraneous-offense evidence was inadmissible
character-conformity evidence that labeled Wilson as a neighborhood
troublemaker who should be convicted for her other bad behavior even if the
telephone calls themselves were not harassing in nature. The State, on the other
hand, argues that the extraneous-offense evidence was relevant to prove Wilson’s
intent to harass—an essential element of the offense—even if the calls otherwise
seemed infrequent and innocuous.
In the first appeal, the Court of Criminal Appeals observed that the
surrounding facts and circumstances are relevant to the issue of intent. In her
concurring opinion in this case, Justice Cochran explained that
A telephone harassment common plan or scheme might take the form
of numerous telephone calls within a short period of time, all relating
15
to a single objective, or they might be calls that are repeated over a
long period of time, but still relating to a single objective or goal.
For example, a person might make various unwanted telephone calls,
in-person harassing statements, derogatory social-media posts, false
reports to the police, animal control, or CPS, and perhaps play
practical jokes on the victim—all interspersed over a year or more—
with the ultimate goal of publicly humiliating the victim, making that
person lose her job, making her move, or literally driving her crazy.
The telephone calls might be repeated only three or four times, but,
coupled with the evidence of other types of harassment, they are
sufficient to prove the person’s scheme or plan and his intent to harass
the victim.
Wilson, 448 S.W.3d at 429 (Cochran, J., joined by Johnson and Alcala, JJ.,
concurring). Although Wilson’s multiple disparate acts were not similar to the
telephone calls on their face, the calls were part of a common scheme or plan to
harass. The circumstances surrounding the 2006 peace bond hearing showed
Wilson’s motive for turning on Bailey, and, in many of the incidents in which
Wilson exhibited animosity toward Ballard, it was directed to some extent at
Bailey as well. The evidence of Wilson’s harassing conduct toward Bailey and
Ballard also tends to prove intent.
Even if evidence is admissible under Rule 404(b), it may be inadmissible
under Rule 403 if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, misleading the jury, considerations of
undue delay, or needless presentation of cumulative evidence. Casey v. State, 215
S.W.3d 870, 879 (Tex. Crim. App. 2007); see TEX. R. EVID. 403. We accord the
16
trial court substantial discretion in balancing the Rule 403 factors, mindful that
“the mere fact that a trial judge may decide a matter within his discretionary
authority in a different manner than an appellate judge in a similar circumstance
does not demonstrate that an abuse of discretion has occurred.” Montgomery, 810
S.W.2d at 380.
Rule 403 favors admissibility of relevant evidence, and the presumption is
that generally, relevant evidence will be more probative than unfairly prejudicial.
Id. Unfair prejudice does not mean the evidence injures the opponent’s case—“the
central point of offering evidence.” Rogers v. State, 991 S.W.2d 263, 266 (Tex.
Crim. App. 1999). “Rather[,] it refers to ‘an undue tendency to suggest decision
on an improper basis, commonly, though not necessarily, an emotional one.’” Id.
(quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)).
Although not limited to the following enumerated factors, courts should
balance the following factors under a Rule 403 analysis: (1) the probative value of
the evidence; (2) the potential of the evidence to impress the jury in some
irrational, yet indelible, way; (3) the time needed to develop the evidence; and
(4) the proponent’s need for the evidence. Prible v. State, 175 S.W.3d 724, 733
(Tex. Crim. App. 2005). The trial court is presumed to have conducted the proper
balancing test if it overrules a 403 objection, regardless of whether it conducted the
17
test on the record. See Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim.
App. 1997).
The evidence of Bailey’s friendship with Wilson, and its ending—due, in
substantial part, to Bailey’s participation in the Ballards’ peace bond hearing,
coupled with evidence of Wilson’s bad conduct toward Bailey for the years
following the hearing—led to their interactions at the time Wilson made the
telephone calls. After the peace bond hearing, Wilson perceived Bailey as being
aligned with Ballard and against Wilson. As a result, this evidence is probative of
Wilson’s intent to harass Bailey.
We do not reach the question of whether the trial court erred in admitting the
remaining extraneous-acts evidence—involving Wilson’s conduct toward the HOA
representative and his wife and in HOA meetings, the signs outside of her home,
and her bad behavior toward other neighbors—because, even assuming it did, it
did not affect her substantial rights. See TEX. R. APP. P. 44.2(b) (stating that non-
constitutional error “that does not affect substantial rights must be disregarded.”).
The erroneous admission of evidence does not affect substantial rights “if the
appellate court, after examining the record as a whole, has fair assurance that the
error did not influence the jury, or had but a slight effect.” Solomon v. State, 49
S.W.3d 356, 365 Tex. Crim. App. 2001), quoted in Motilla v. State, 78 S.W.3d
352, 355 (Tex. Crim. App. 2002); Martinez v. State, No. 01–10–00622–CR, 2011
18
WL 5026457, at *4 (Tex. App.—Houston Oct. 20, 2011, pet. ref’d) (mem. op., not
designated for publication). In determining the extent to which the error
influenced the jury, we consider the entire record, the nature of the evidence
supporting the verdict, the character of the alleged error and its connection with
other evidence in the case, and whether the State emphasized the error. Motilla, 78
S.W.3d at 355–56. The remaining extraneous-acts evidence was not highly
inflammatory and did not take a substantial amount of time for the State to present,
and was in many ways repetitive of the un-neighborly conduct that Wilson had
engaged in toward Bailey and Ballard.
At Wilson’s request, the trial court gave the jury a limiting instruction,
informing the jurors about the purpose of the evidence and warning that they
should not consider it for any purpose unless from the evidence presented it found
beyond a reasonable doubt that Wilson had committed the extraneous acts. This
instruction minimized the prejudice associated with the extraneous-acts evidence.
See Miller v. State, 196 S.W.3d 256, 268 (Tex. App.—Fort Worth 2006, pet. ref d);
Simpson v. State, 886 S.W.2d 449, 452 (Tex. App.—Houston [1st Dist.] 2003, pet.
ref’d); see also Robinson v. State, 701 S.W.2d 895, 899 (Tex. Crim. App. 1985)
(“A proper instruction on the limited use of an extraneous offense will also lessen
the prejudice.”). We must presume that the jury followed the trial court’s
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instruction. See Gamez v. State, 737 S. W.2d 315, 324 (Tex. Crim. App. 1987).
We thus reject Wilson’s extraneous-offense evidentiary challenge.
C. Exclusion of interview recording
Relying on the rule of optional completeness, Wilson proffered the audio
recording of Officer Stevenson’s interview with Nicole Bailey in connection with
her cross-examination of the officer. Wilson contends that the trial court erred in
excluding the tape because it would have shown that Bailey was not as upset and
traumatized by Wilson’s actions closer in time to their occurrence as she seemed
during her trial testimony.
The rule of optional completeness “is designed to reduce the possibility of
the jury receiving a false impression from hearing only a part of some act,
conversation, or writing.” Walters v. State, 247 S.W.3d 204, 218 (Tex. Crim. App.
2007), quoted in Peña v. State, 353 S.W.3d 797, 814 (Tex. Crim. App. 2011).
Wilson did not seek to impeach Bailey with the recording, and the State did not
offer any part of the recording during Officer Stevenson’s direct testimony.
Stevenson testified that, during the interview, Bailey “exhibited an array of
emotions from laughing to crying to telling me she is scared.” This is a reasonably
accurate description of the recorded interview. We hold that the trial court acted
within its discretion in determining that the evidence presented by the State did not
create a false impression that admission of the recording would have corrected.
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III. First Amendment Challenges
In a supplemental brief after remand, Wilson brings both facial and as-
applied First Amendment challenges to the telephone harassment statute, claiming
that it is void for vagueness and overbreadth.1 Wilson acknowledges that,
generally, a defendant may not raise a facial challenge based on constitutional
vagueness or overbreadth for the first time on appeal. See Karenev v. State, 281
S.W.3d 428, 434 (Tex. Crim. App. 2009). Wilson did not raise her facial challenge
in the trial court or in this court on direct appeal. But, relying on an opinion
dissenting from the denial of her motion for rehearing in the Court of Criminal
Appeals, in which the dissenting justices raised the potential for constitutional
infirmity in connection with the statute, she requests that we allow supplemental
briefing on the issue on remand. See Wilson, 448 S.W.3d at 430 (Alcala, J., joined
by Johnson and Cochran, JJ., dissenting from denial of rehearing).
Generally, an appellant must raise an issue in her principal brief to have it
reviewed on appeal. See TEX. R. APP. P. 38.3; Barrios v. State, 27 S.W.3d 313,
322 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). If an issue is raised later in
the appellate proceedings, Rule 38.7 provides that a “brief may be amended or
1
Wilson attempted to raise her First Amendment challenges in a motion for
rehearing in the Court of Criminal Appeals. A majority of the Court denied the
motion without opinion. See Wilson v. State, 448 S.W.3d 418, 430 (Tex. Crim.
App. 2014) (denial of rehearing, followed by dissent from denial by Alcala, J.,
joined by Johnson and Cochran, JJ.).
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supplemented whenever justice requires, on whatever reasonable terms the court
may prescribe.” TEX. R. APP. P. 38.7. We therefore consider whether justice
requires us to address the constitutional claims in Wilson’s supplemental briefing
even though she did not raise them until the case was on rehearing in the Court of
Criminal Appeals. We conclude that well-established error preservation rules
requiring that such complaints be made both in the trial court and in the initial
briefing on appeal preclude our consideration of these arguments on remand.
A. Facial challenge
First, the Texas Court of Criminal Appeals has held that an appellant may
not raise a facial challenge to the constitutionality of a statute for the first time on
appeal. Karenev, 281 S.W.3d at 434. The Court of Criminal Appeals premised its
holding in Karenev on the doctrine that “[s]tatutes are presumed to be
constitutional until it is determined otherwise” and “[t]he State and the trial court
should not be required to anticipate that a statute may later be held to be
unconstitutional.” Id.
Wilson concedes that she did not assert her facial First Amendment
challenge in the trial court. But she contends that the rationale that Karenev
applies to the State and the trial court should also apply to her—namely, that she
should not be required to have anticipated that the Court of Criminal Appeals
would re-interpret the telephone harassment statute in a way that arguably gives
22
rise to the constitutional infirmity that she asserts. She claims that, as a result of
the Court’s disavowal of its opinion in Scott, in which it had offered a definition
for the statute’s use of the term “repeated,” it is now impossible to know what
timing, frequency, and content of calls will make the caller subject to criminal
prosecution.
But any constitutional infirmity would lie with the statute as written at the
time of Wilson’s offense, and the members of the high court disagreed as to the
importance of the disavowed definition from Scott, with the majority concluding
that it did not shed light on the statutory elements of criminal telephone
harassment. Compare Wilson, 448 S.W.3d at 422 (majority opinion) (finding Scott
“neither controlling nor persuasive” and describing its definition of “repeated” as
ambiguous, inartful, and confusing) with id. at 427 (Cochran, J., joined by Johnson
and Alcala, JJ., concurring) (taking issue with majority’s rejection of discussion
“repeated in Scott” and opining that majority’s “new definition clearly invites a
vagueness and overbreadth challenge to the statute”).
Further, Wilson declined to advance a facial challenge to the telephone
harassment statute’s constitutionality in the trial court because, she contends, it
would have been futile. Futility does not excuse the requirement that a party must
raise a constitutional challenge to a statute in the trial court to preserve it for
appellate review. See Sanchez v. State, 120 S.W.3d 359, 365–67 (Tex. Crim. App.
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2003); Schuster v. State, 435 S.W.3d 362, 364–65 (Tex. App.—Houston [1st Dist.]
2014, no pet.). Accordingly, we hold that Wilson waived her facial challenge and
thus decline to consider it, because it was first raised in supplemental briefing on
remand.
B. As-applied challenge
Second, with respect to her as-applied challenge, Wilson could have
presented her claim on direct appeal to this court. After the State presented its case
in the trial court, Wilson moved to dismiss the charge against her, contending that
the statute, as applied in the case against her, violated her First Amendment rights.
The trial court denied the motion. Wilson did not address this preserved challenge
in her principal brief to this Court. As a result, we have no basis for finding that
justice requires consideration of this argument now and decline to consider it.
Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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Wilson, Elisa Merrill
Combined Opinion