State v. Esmeralda L. Chavez ( 2019 )

NUMBER 13-18-00034-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
THE STATE OF TEXAS, Appellant,
v.
ESMERALDA L. CHAVEZ, Appellee.
On appeal from the County Court at Law No. 1
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria and Rodriguez1
Memorandum Opinion by Justice Rodriguez
Appellee Esmeralda Chavez was charged by information with telephone
1 Retired Thirteenth Court of Appeals Justice Nelda Rodriguez, assigned to this Court by the Chief
Justice of the Supreme Court of Texas pursuant to the government code. See TEX. GOV’T CODE ANN.
§ 74.003.
harassment. See TEX. PENAL CODE ANN. § 42.07(a)(4). A jury found her guilty and
assessed punishment at sixty days incarceration in Nueces City jail and a $500 fine.
Chavez filed a motion for new trial, which the trial court granted. By one issue, the
appellant State argues the trial court erred in granting the motion for new trial. We affirm.
I. BACKGROUND
Following her conviction, Chavez moved for a new trial, complaining that there was
no evidence to support the allegation that she caused the complainant’s telephone to ring
repeatedly. In her motion, Chavez alleged, in pertinent part, as follows:
There was no evidence introduced at trial by the complaining witness in
regard to her telephone allegedly ringing. However, evidence was admitted
at trial regarding a series of text messages allegedly transmitted to the
complaining witness by the defendant. The text messages fell outside the
parameters of the State’s charging instrument or Complaint and were not
supported by telephone records or Information Technology [IT]
documentation.
...
After conducting a hearing, the trial court granted a new trial on the sole ground “that the
judgment of conviction was contrary to the law and evidence.” The trial court made the
following finding of fact: the evidence presented at trial concerning text messages was
insufficient to support the State’s theory that Chavez harassed the complainant by
causing the complainant’s phone to ring repeatedly, and Chavez “failed to prove any other
ground to support her motion for new trial.” The State appealed the trial court’s order.
II. MOTION FOR NEW TRIAL
The State argues the trial court erred in granting Chavez’s motion for new trial
because Chavez failed to show the evidence was insufficient to support her conviction.
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A. Standard of Review
We review a trial court’s ruling on a motion for new trial for an abuse of discretion.
Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). We view the evidence in
the light most favorable to the trial court’s ruling and uphold the trial court’s ruling if it was
within the zone of reasonable disagreement. Id. We do not substitute our judgment for
that of the trial court, but rather we decide whether the trial court’s decision was arbitrary
or unreasonable. Id. Thus, a trial court abuses its discretion in denying a motion for new
trial only when no reasonable view of the record could support the trial court’s ruling.
Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).
B. Legal Sufficiency
We review evidentiary sufficiency challenges under the Jackson standard. See
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); Jackson v. Virginia, 443
U.S. 307 (1979). Under this standard, evidence is insufficient to support a conviction if,
considering all the record evidence in the light most favorable to the verdict, no rational
fact finder could have found that each essential element of the charged offense was
proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Laster v. State, 275
S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex.
Crim. App. 2007).
Viewed in the light most favorable to the verdict, the evidence is insufficient when
either: (1) the record contains no evidence, or merely a “modicum” of evidence, probative
of an element of the offense; or (2) the evidence conclusively establishes a reasonable
doubt. See Laster, 275 S.W.3d at 518. We do not weigh any evidence or evaluate the
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credibility of any witnesses, as this was the function of the fact finder. Williams, 235
S.W.3d at 750. Instead, we determine whether both the explicit and implicit findings of
the fact finder are rational by viewing all the evidence admitted at trial in the light most
favorable to the verdict and resolving any inconsistencies in the evidence in favor of the
verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992).
We review the sufficiency of the evidence by a hypothetically correct jury charge
as authorized by the indictment. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997) (en banc). As charged in this case, a person commits the offense of harassment
if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, she causes
the telephone of another to ring repeatedly in a manner reasonably likely to harass,
annoy, alarm, abuse, torment, embarrass, or offend another. TEX. PENAL CODE ANN. §
42.07(a)(4).
C. Discussion
The State charged Chavez with the offense of harassment as follows:
On or about 9 August 2014, . . . in Nueces County, State of Texas, [Chavez]
did then and there, with intent to harass, annoy, alarm, abuse, torment, or
embarrass, [complainant], cause the telephone of [complainant] to ring
repeatedly, against the peace and dignity of the State.
Section 42.07(a)(7) of the Texas Penal Code is pertinent to our analysis: a person
commits an offense if with intent to harass, annoy, alarm, abuse, torment, or embarrass
another, the person sends repeated electronic communications in a manner reasonably
likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another. 2 Id.
“Electronic communication” means a communication initiated through a text message. TEX. PENAL
2
CODE ANN. § 42.07(b)(1)(A). This section is content-based and does not have to do with noise or sound.
Id.
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§ 42.07(a)(7). On the other hand, a person commits the offense as charged here if the
person, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, she
causes the telephone of another to ring repeatedly in a manner reasonably likely to
harass, annoy, alarm, abuse, torment, embarrass, or offend another. Id. § 42.07(a)(4).
Thus, as charged, the State must show Chavez committed the offense of harassment
under § 42.07(a)(4) rather than 42.07(a)(7). See id. § 42.07(a)(4), (7).
However, the State produced no evidence at trial that Chavez caused the
complainant’s phone to ring repeatedly. See id. § 42.07(4). In fact, the trial court stated
that it never heard evidence that the complainant’s phone “shook or rang” and heard “very
little about the annoying text messaging.” Chavez requested a directed verdict because
of the lack of evidence, and the trial court replied, “I don’t know if [the harassment statute]
has been updated to include the modern way of text messaging . . . you’re trying to fit a
square peg in a round hole.” However, neither side could present case law for the trial
court to consider regarding text messages and harassment. Thus, the trial court denied
Chavez’s request for a directed verdict.
After being convicted, Chavez filed a motion for new trial. At the motion for new
trial hearing, Chavez argued that she should have been charged under § 42.07(7), which
expressly defines electronic communication as a “text message.” In response, the State
argued that although § 42.07(4) “only states ringing instead of telecommunication, the
legislative intent is clear to include the repeated text messages.” However, the legislature
expressly included text messages in § 42.07(7). According to the State, at trial, the
“evidence undisputedly has shown that there was repeated telecommunication [i.e.]
repeated text messages in a manner reasonably likely to harass, annoy, alarm, abuse,
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torment, embarrass, or offend the [complainant]” and therefore the motion for new trial
should be denied.
As authorized in the indictment, the State was required to prove that Chavez
caused the complainant’s phone to “ring repeatedly,” not that Chavez made “repeated
telecommunications.” See Malik, 953 S.W.2d at 240; see also Clinton v. State, 354
S.W.3d 795, 799 (Tex. Crim. App. 2011) (citing Gollihar v. State, 46 S.W.3d 243, 254
(Tex. Crim. App. 2001) (“[W]hen the statute defines alternative methods of manner and
means of committing an element and the indictment alleges only one of those methods,
‘the law’ for purposes of the hypothetically correct charge[ ] is the single method alleged
in the indictment.”). Moreover, the State did not charge Chavez with harassment by
sending repeated electronic communications, i.e., text messages pursuant to
§ 42.07(a)(7) or with “making repeated telephonic communications” under § 42.07(a)(4).
See Wilson v. State, 448 S.W.3d 418, 426 (Tex. Crim. App. 2014) (holding that the
content of six calls over a ten-month period, combined with evidence of [defendant’s]
combative conduct and verbal abuse toward [complainant], the jury could have rationally
found that [defendant], with the intent to harass, annoy, alarm, abuse, torment, or
embarrass [complainant], made repeated telephone communications to [complainant] in
a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend
her) (Emphasis added). Although the State may have obtained a harassment conviction
under § 42.07(a)(7)’s electronic communication provision or the latter portion of
§ 42.07(a)(4)’s “making repeated telephonic communications,” the State charged Chavez
with causing the complainant’s phone to “ring repeatedly.” See TEX. PENAL CODE ANN.
§ 42.07(a)(4); Clinton, 354 S.W.3d at 799; see also Perone v. State, No. 14-12-00969-
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CV, 2014, 2014 WL 1481318 at *2 (Tex. App.—Houston [14th Dist.] Apr. 15, 2014, no
pet.) (mem. op., not designated for publication) (concluding that text messages are
“telephonic communications” under § 42.07(a)(4)).
Because we find nothing in the record to demonstrate that Chavez caused the
complainant’s phone to “ring repeatedly,” we find the evidence was legally insufficient to
support a conviction of harassment as authorized by the charging instrument. See Malik,
953 S.W.2d at 240; Jackson, 443 U.S. at 319. Therefore, the trial court did not abuse its
discretion when it granted Chavez’s motion for new trial. Webb, 232 S.W.3d at 112. We
overrule the State’s issue.
III. CONCLUSION
We affirm the trial court’s judgment.
NELDA RODRIGUEZ,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
22nd day of August, 2019.
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