Anthony David Teague v. State ( 2015 )

ACCEPTED
06-14-00053-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
2/22/2015 5:21:52 PM
DEBBIE AUTREY
CLERK
In the Court of Appeals for the
Sixth District of Texas at Texarkana FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
2/23/2015 10:05:00 AM
Anthony David Teague, § DEBBIE AUTREY
Appellant § Clerk
§
v. § No. 06-14-00053-CR
§
The State of Texas, §
Appellee §
On Appeal from Cause Number 366-82919-2013 in the 219th District Court
Judicial District Court of Collin County, Texas, the Honorable Scott J. Becker,
Judge Presiding.
§§§
State’s Brief
§§§
Greg Willis
Criminal District Attorney
Collin County, Texas
John R. Rolater, Jr.
Assistant Criminal District Attorney
Chief of the Appellate Division
SBT#00791565
2100 Bloomdale Rd., Ste. 200
McKinney, Texas 75071
(972) 548-4323
FAX (214) 491-4860
jrolater@co.collin.tx.us
Holly Griffin
Jonathan Richardson
Assistant Criminal District Attorneys
Table of Contents
Index of Authorities ................................................................................................. iii
Statement of the Case.................................................................................................1
Statement Regarding Oral Argument ........................................................................1
Statement of Facts ......................................................................................................2
Summary of the State’s Arguments .........................................................................11
State’s Reply to Appellant’s First Issue ...................................................................12
The trial court was not required to conduct an informal inquiry into Appellant’s
competence to stand trial because there was not a suggestion that Appellant was
incompetent to stand trial and no facts before the trial court required it to suggest
Appellant’s incompetence sua sponte. .................................................................12
Standard of Review ...............................................................................................12
Applicable Law .....................................................................................................12
Argument ..............................................................................................................13
State’s Reply to Appellant’s Second Issue ..............................................................16
The State’s evidence is sufficient because Appellant repeatedly engaged in
conduct directed at RK that he knew would place her in fear of bodily injury or
death, she did fear she would suffer bodily injury or death, and her fear was
objectively reasonable. .........................................................................................16
Standard of Review ...............................................................................................16
Applicable Law .....................................................................................................17
Appellant’s Sufficiency Argument is Contrary to the Statutory Text and
Unsupported by Applicable Authority ..................................................................17
Ample Evidence Supports Appellant’s Conviction for Stalking, Including
Threats, Disclosures, Following the Victim, and Evidence of Her Fear .............18
Prayer .......................................................................................................................21
i
Certificate of Service ...............................................................................................21
Certificate of Compliance ........................................................................................22
ii
Index of Authorities
Cases
Brooks v. State,
323 S.W.3d 893 (Tex. Crim. App. 2010) .............................................................16
Fluellen v. State,
443 S.W.3d 365 (Tex. App.—Texarkana 2014, no pet.) ........................ 12, 14, 15
Jackson v. Virginia,
443 U.S. 307 (1979) .............................................................................................16
Montgomery v. State,
810 S.W.2d 372 (Tex. Crim. App. 1991)(op. on reh’g) .......................................12
Ploeger v. State,
189 S.W.3d 799 (Tex. App.—Houston [1st Dist.] 2006, no pet.) .... 17, 18, 19, 20
Pomier v. State,
326 S.W.3d 3731 (Tex. App.—Houston [14th Dist.] 2010, no pet.) ...................18
Turner v. State,
422 S.W.3d 676 (Tex. Crim. App. 2013) ................................................ 14, 15, 16
Statutes
Act of May 19, 2011,
82nd Leg. , R.S., Ch. 591, § 1,
2011 Tex. Sess. Law. Serv. 1433 .........................................................................17
Tex. Code Crim. Proc. art. 46B.003(a) ....................................................................13
Tex. Code Crim. Proc. art. 46B.004(a) ....................................................................13
Tex. Code Crim. Proc. art. 46B.004(b) ....................................................................13
Tex. Code Crim. Proc. art. 46B.004(c) ....................................................................13
Tex. Penal Code § 22.01 ..........................................................................................18
Tex. Penal Code § 42.072 ................................................................................. 17, 18
iii
To the Honorable Court of Appeals:
Statement of the Case
Appellant was convicted of stalking after a jury trial. He pleaded true to a
single enhancement paragraph, and the jury found the enhancement paragraph to
be true. The jury assessed punishment at 20 years’ confinement in the Texas
Department of Criminal Justice and a fine of $10,000. CR 1730.
Statement Regarding Oral Argument
Appellant has not requested oral argument and the State likewise does not
request oral argument. The State does not believe oral argument will assist the
Court in deciding the case.
1
Statement of Facts
In late Summer of 2012, RK was about to begin a graduate program in video
game design at the Guildhall, a program of Southern Methodist University located
in Plano, Collin County, Texas. 3 RR 99-100, 108, 127, 238-40. The school started
a Facebook page that allowed the students to meet one another before classes
began. 3 RR 99. RK met her roommate, AH, this way, as well as Appellant. 3 RR
99-100. RK met Appellant at a group dinner for students at BJ’s Brewhouse. 3 RR
100, 241-42.
RK found Appellant to be unusual, but he was someone that she could talk
to. 3 RR 101. They communicated frequently on Facebook. 3 RR 101. Appellant
helped her get furniture at IKEA and move into her apartment, and he helped her
buy items for her apartment at Home Depot. 3 RR 101-102, 242-43. They also
spent time together at group functions with fellow students, and spent time together
after one of these functions. 3 RR 101-102.
The two spoke frequently on the phone and by text message. 3 RR 244-45.
Appellant told RK he wanted a romantic relationship, but she told him frequently
and bluntly that she did not want that type of relationship. 3 RR 102. RK had
recently been through a bad breakup. 3 RR 102. Appellant tried giving her gifts,
but that made RK uncomfortable and she refused the gifts except for a lighter and
2
some cat toys. 3 RR 102-103. Appellant was “adamant” and “pushy” that she
should accept the gifts. 3 RR 103-104.
The Guildhall program consisted of forty to forty-five students who were in
class all day, every day. 3 RR 108. Appellant sat behind her in class, but he would
follow her outside whenever she took a break to smoke. 3 RR 108. Appellant was
jealous of their male classmates and made comments about them. 3 RR 107.
After classes began, the relationship between RK and Appellant briefly
became intimate. 3 RR 104, 244, 246. Appellant pressured her to become more
intimate with him, and she did. 3 RR 104. He badgered her “we should kiss,” “we
should have sex,” and “this is what you want.” 3 RR 104. RK “was in a bad place
emotionally” and immediately regretted allowing the relationship to become
sexual. 3 RR 104, 246. RK and Appellant had sexual encounters three times in
about a week. 3 RR 105. RK told Appellant it was a mistake and she wasn’t
comfortable with that type of relationship, but he kept trying to convince her
otherwise. 3 RR 104-105. Eventually, he agreed to take a step back, but they got
drunk with a group of students after a test and had sex for the third, and last, time.
3 RR 106.
On August 28, 2012, after meeting with her counselor, RK felt empowered
and told Appellant that the intimate relationship would stop. 3 RR 109. Appellant
became angry and irrational, bouncing between despondence and saying cruel and
3
vulgar things. 3 RR 110. Appellant sent RK 69 text messages, called her three
times, and posted many messages on Facebook. 3 RR 110; SX7; SX 5; SX 6. On
Facebook Appellant called RK a “selfish cunt” and told her to “fuck off…
seriously just die.” SX 6 at 6. By text message he told her “someday you’ll regret
your choices” and “[i]f you try to give me that lighter back you’ll regret it.” SX 5
at 3, 13. But, more ominously, Appellant kept insisting that he need to see RK even
though she refused to see him. He would ask if he could come over, then when told
no, would still say he was coming over. SX 5 at 6, 8, 15. Appellant also threatened
to tell RK’s ex-boyfriend they had slept together and to give him RK’s address. SX
5 at 13, 17; SX6 at 33. Ultimately, Appellant called the police and sent them to
RK’s home at 4 a.m., telling them he was afraid she would hurt herself. 3 RR 132;
SX 5 at 18. On the phone he screamed at her, called her a slut, and said things
about her and her family that “were very manipulative.” 3 RR 132.
Appellant’s behavior made RK fearful. 3 RR 168-70. He tried to get her to
leave her apartment in the middle of the night. 3 RR 168; SX6 at 52. He told her on
Facebook that he knew she responded to fear and that he used that as a tactic. 3 RR
170; SX 6 at 56. He told her that he masturbated while talking to her on the phone.
SX 6 at 30, 32. And he accused her of having sexual feelings for another
classmate. SX 6 at 32. When RK told him she didn’t deserve to be spoken to like
that, Appellant told her “you deserve much worse… now fuck off before you get
4
it.” SX 6 at 32. Appellant vaguely threated to post photos of RK on Facebook,
although she did not believe him to possess any compromising photos of her. 3 RR
170, 266-67.
Several days later, RK agreed to meet Appellant at a Starbucks because he
promised to leave her alone if she did. 3 RR 171-72. Appellant tried to “twist
things” during the meeting and attack her psychologically. 3 RR 173. He also tried
to kiss her and touch her even though she told him not to. 3 RR 174. After she left
the meeting at Starbucks, she went home, then to visit a classmate, CF. 3 RR 184.
While she was at CF’s apartment, Appellant sent her a video of a love song. 3 RR
185-87. RK believed this meant Appellant knew where she was at the time because
he was jealous of CF, knew where CF lived, and her car was parked in front of
CF’s apartment. 3 RR 185-87.
On September 8, 2012, RK was forced to call the police when Appellant was
messaging “adamantly” that he was coming over to her apartment. 3 RR 187-88.
She called them again the next day when Appellant, who seemed irrational,
insisted that he was coming to her apartment even though she told him there was
nothing he could not say over the phone. 3 RR 188-89. By September 12, RK and
her roommate began staying at other places to avoid Appellant. 3 RR 190-91. SMU
issued a “no contact” letter to Appellant and published it to the other students, and
5
he received a criminal trespass warning for SMU’s campuses including the
Guildhall. 3 RR 188-89; 4 RR 29, 63.
But even after Appellant was kicked out of the Guildhall and ordered not to
contact RK he continued to do so. 3 RR 188-89. RK had friends stay at her
apartment when her roommate was away. 3 RR 192. Appellant also contacted
other persons about RK. 3 RR 192. On October 22, 2012, Appellant came into a
different Starbucks where RK was studying even though it was away from the area
where he lived. 3 RR 194-95. Six days later, Appellant left a pack of cigarettes on
her car while she was watching movies with a group at CF’s apartment. 3 RR 198.
RK was terrified because Appellant was following her again. 3 RR 199-200. Her
friends followed her home that night, and she called police again when she
received a call from a blocked number at 4:00 a.m. the next morning. 3 RR 199-
200. Appellant called again while the police were there and she could hear his
voice on the phone speaking to the police. 3 RR 199-200.
Others witnessed Appellant’s stalking behavior toward RK. One of the
Guildhall students, SK, noticed that Appellant was jealous of other people and was
ready to propose to RK within a month even though they did not sit together in
class and Appellant complained that RK did not know what she wanted. 4 RR 27.
SK advised Appellant that RK was young and had just ended a long term
relationship. 4 RR 27-28. SK also thought Appellant should not date someone “his
6
daughter’s age” in a closed program of forty people. 4 RR 27-28. Appellant was
spiteful and asked SK what other girl in the program he could use to make RK
jealous. 4 RR 28. Although SK thought RK did not reciprocate Appellant’s
feelings, Appellant said that she did and that the two had “hooked up.” 4 RR 28-
29.
Appellant came to SK’s apartment unannounced the same day that the
Guildhall informed the other students of the no contact order. 4 RR 29-30. He told
SK and another student that they “were going to hear some things about [RK],”
that she was “very confused,” and that they should “not be mad at her.” 4 RR 30-
31. Appellant was nervous and agitated during the conversation, but it was not
unusual behavior for him. 4 RR 32. SK had to ask him several times before he
would leave the apartment. 4 RR 32-33.
CF had talked with Appellant after classes had started, and both had
discovered they liked RK. 4 RR 36-37. Appellant told CF “she’s all yours” and
that he had a relationship with a girl in Dallas he was going to pursue, but he also
seemed visibly upset at the time. 4 RR 37. Appellant later told CF, in a casual
statement in front of other students, that he and RK had had sex and that “it wasn’t
that great.” 4 RR 37-38. Appellant contacted CF even after the Guildhall issued the
no contact order. 4 RR 37-38. Appellant told CF that “he had to warn him about
[RK],” that “[RK] intentionally draws people in to get the close and then pushes
7
them away.” 4 RR 38. Appellant told CF that “[RK] wants to be punished” and that
“he wants to fix her… that something was wrong with her.” 4 RR 38. Appellant
came to CF’s apartment and talked about RK for three to four hours, but the things
he said did not make a lot of sense. 4 RR 38-39. After Appellant left, RK came to
CF’s apartment and was “barely holding herself together.” 4 RR 39-40. She told
him Appellant had been stalking her and following her everywhere she went. 4 RR
40-41.
RK’s roommate, AH, also a Guildhall student, did not learn of the failed
relationship until several days after RK broke up with Appellant. 4 RR 47. RK
woke her about 1 a.m. crying, and AH thought something had happened to RK’s
mother. 4 RR 47. RK told her about Appellant’s actions, and AH listened as RK
yelled at Appellant and told him he was “scaring her” and to “leave her alone. 4
RR 48-49. A few days later, Appellant insisted he was coming over, and RK and
AH turned out the lights and hid in their apartment while he knocked on the door. 4
RR 50. AH called the police herself on another occasion when Appellant insisted
he was coming over and RK was home alone. 4 RR 51. AH saw Appellant in their
apartment parking lot at least twice during this time. 4 RR 53. AH cancelled
appointments so that RK would not be alone, drove RK to school, and would buy
cigarettes for RK so that she did not have to go to the gas station alone. 4 RR 56-
57.
8
HT, another Guildhall student who lived in the same apartment complex,
also saw Appellant in the apartments and thought it was strange. 4 RR 59. HT also
saw Appellant several days later at another student’s birthday party to which RK
was invited but Appellant was not. 4 RR 60-61.
Plano Police Officer Ray Arnold was dispatched to RK’s apartment on
September 9, 2012, regarding Appellant’s behavior. 4 RR 73-75. She was upset
and scared and asked Arnold to contact Appellant and tell him leave her alone. 4
RR 75. Arnold called Appellant and told him RK did not want him to contact her
any more, including on social media. 4 RR 75-77. Appellant told Arnold he had
seen the officer drive into RK’s apartment complex, and left because he was
scared. 4 RR 76. Appellant told Arnold he understood the request and acted as if he
would comply. 4 RR 77. Appellant was calm on the phone. 4 RR 77.
Plano Police Officer Robert Mills was dispatched to RK’s apartment on
October 28, 2012, along with Officer Brian Franz. 4 RR 82-84, 154. Mills
patrolled the complex looking for suspicious activity while Franz contacted RK. 4
RR 84-85, 154-55. Appellant called RK while Franz was talking to her, and he
answered the call “Hello Mr. Teague.” 4 RR 156-57. Frantz told Appellant any
further communications would be considered harassment. 4 RR 156. Appellant
asked “who is this really?”, and Franz identified himself by name and badge
number. 4 RR 156. Appellant asked if Franz “was having sex with his girlfriend?”
9
4 RR 156-57. Franz said he was a Plano Police Officer and invited Appellant back
to the apartment to speak with him. 4 RR 157. Mills also spoke to Appellant when
he called back after Franz hung up on him. 4 RR 86-87.
Appellant also contacted RK’s mother, who lived in Dallas. 4 RR 94-96.
Appellant first contacted her by LinkedIn, but she later received phone messages
and text messages from him. 4 RR 96-100; SX 15. She reported the inappropriate
messages to the Dallas Police Department, who instructed Appellant to “cease and
desist.” 4 RR 101-103.
Appellant met with Plano Detective Phelan while the matter was under
investigation. 4 RR 108-109. Phelan told Appellant on September 13, 2012, that
RK wanted no more contact from him and that she was afraid of him. 4 RR 110.
Appellant told Phelan that he was angry and unhappy with how RK had handled
the matter. 4 RR 110. Appellant told Phelan he understood and promised to stop
contacting RK. 4 RR 110-11. Phelan also spoke with Appellant on September 18,
2012, again telling Appellant that RK wanted no more communications from him
and that she considered the relationship to be over. 4 RR 11. On October 29, 2102,
Phelan again met with Appellant about another incident between him and RK. 4
RR 111-12. Appellant admitted to Phelan that he had continued to contact RK. 4
RR 112-13. In Phelan’s opinion, Appellant’s behavior was escalating. 4 RR 8.
10
Summary of the State’s Arguments
The trial court was not required to conduct an informal inquiry into
Appellant’s competence to stand trial because there was not a suggestion that
Appellant was incompetent to stand trial and no facts before the trial court required
it to suggest Appellant’s incompetence sua sponte.
The evidence is legally sufficient to prove that Appellant committed the
offense of stalking because it shows that he repeatedly engaged in conduct that he
knew would place her in fear of bodily injury or death, she did fear she would
suffer bodily injury or death, and her fear was objectively reasonable.
11
State’s Reply to Appellant’s First Issue
In his first issue, Appellant claims the trial court erred in failing to conduct
an informal inquiry into whether there was evidence he was incompetent to stand
trial. The trial court was not required to conduct an informal inquiry into
Appellant’s competence to stand trial because there was not a suggestion that
Appellant was incompetent to stand trial and no facts before the trial court required
it to suggest Appellant’s incompetence sua sponte.
Standard of Review
This Court reviews a trial court’s failure to conduct an informal competency
review for abuse of discretion. Fluellen v. State, 443 S.W.3d 365, 369 (Tex.
App.—Texarkana 2014, no pet.). To show a clear abuse of discretion requires
more than a showing that this Court disagrees with the trial court’s determination
of the issue. Rather, a clear abuse of discretion is shown only where the trial
court’s determination falls outside “the zone of reasonable disagreement” with
regard to the determination. Montgomery v. State, 810 S.W.2d 372, 386, 391 (Tex.
Crim. App. 1991) (op. on reh’g).
Applicable Law
To be competent to stand trial, a person must possess both a sufficient
present ability to consult with the person’s lawyer with a reasonable degree of
rational understanding and a rational as well as factual understanding of the
12
proceedings against the person. See Tex. Code Crim. Proc. art. 46B.003(a)(1)-(2).
Either party or the trial court may suggest a defendant is incompetent to stand trial.
See Tex. Code Crim. Proc. art. 46B.004(a). If evidence suggesting the defendant
may be incompetent comes to the attention of the trial court, it must suggest the
defendant is incompetent. Tex. Code Crim. Proc. art. 46B.004(b). On a suggestion
of incompetence, the trial court must conduct an informal inquiry to determine
whether there is some evidence from any source that would support a finding that
the defendant may be incompetent to stand trial. Tex. Code Crim. Proc. art.
46B.004(c).
Argument
Appellant argues the trial court erred in failing to conduct an informal
competency review. Appellant’s brief at 9-10, 11-13. But Appellant’s argument
focuses on historical facts related to his offense and incarceration rather than facts
related to his mental status at or near the time of trial. Appellant references letters
sent to the trial court in July and August of 2013. CR 121, 124, 127, 133. The trial
testimony referenced by Appellant relates to events that transpired in the early fall
of 2012. Appellant’s brief at 12-13. But Appellant’s trial took place in February of
2014. CR 1730. Appellant’s two trial lawyers never suggested to the trial court that
Appellant was unable to consult with them or did not understand what was
occurring in court. Appellant only testified during the punishment phase, and then
13
only for the purpose of indicating to the trial court that he understood his Fifth
Amendment rights, he did not testify at guilt because of his prior convictions, and
he did not choose to testify in the punishment phase. 7 RR 202-205. Appellant
points to nothing in this colloquy indicating Appellant could not consult with
counsel or did not understand the proceedings in court.
Here, while the record contains some evidence that Appellant could not
conform his conduct to what society expected of him, there is no evidence that
Appellant could not consult with counsel and did not understand the nature of the
proceedings. The facts of this case are similar to those reviewed by the Court in
Fluellen. 443 S.W.3d at 367-70. In that case, Fluellen, while rejecting plea offers
pretrial, essentially accepted the same offers by an open plea of guilty later in the
trial. Id. at 369. Furthermore, there was some evidence of discord between Fluellen
and his attorney. Id. Nevertheless, this Court noted that the record contained
nothing indicating that Fluellen was not “fully engaged in the legal process” and
competent to stand trial. Id. at 369-70. Thus, the trial court was not required to
engage in an informal competency determination. Id.
The facts of the instant case are unlike those in Turner v. State, 422 S.W.3d
676 (Tex. Crim. App. 2013), where a sharply divided Court of Criminal Appeals
found that the trial court should have conducted formal competency review even
though prior examinations by mental health professionals had found Turner
14
competent to stand trial. In Turner, trial defense counsel several times requested
that the trial court revisit the issue of Turner’s competence because he refused to
communicate with them, accused them of being in league with the prosecutors,
maintained a strange story about the local mayor threatening him, and tried to fire
his lawyers before final arguments. Id. at 679-87. The trial court even had Turner
examined another time for competency, but Turner refused to cooperate. Id. at 683.
The Court noted that the fact a defendant is mentally ill does not mean he is
incompetent, nor does a refusal to cooperate with counsel. Id. at 691. But, when a
defendant’s mental illness operated to prevent him from rationally understanding
the proceedings against him or engaging rationally with counsel in pursuit of his
best interests, then he is incompetent. Id. Evidence that raises this possibility is
what triggers an informal inquiry. Id. Ultimately, the Court in Turner remanded the
case to the trial court for determination whether a retrospective competency
determination could be made. Id. at 696-97.
This case is like Fluellen. The trial court received no information from trial
counsel, Appellant, or other witnesses indicating that Appellant suffered from
mental illness that prevented him from rationally understanding the proceedings
against him or rationally assisting his counsel. Rather, the record contains only
evidence showing that prior examinations had shown that Appellant was not
incompetent. CR 1693-97. Accordingly, the trial court did not abuse its discretion
15
by failing to sua sponte suggest Appellant was incompetent and conduct an
informal review under Article 46B.004(b).1 Appellant’s first issue should be
overruled.
State’s Reply to Appellant’s Second Issue
In his second issue, Appellant claims the evidence is insufficient to sustain
the jury’s verdict. The State’s evidence is sufficient because Appellant repeatedly
engaged in conduct directed at RK that he knew would place her in fear of bodily
injury or death, she did fear she would suffer bodily injury or death, and her fear
was objectively reasonable.
Standard of Review
In determining whether the evidence is sufficient, a reviewing court views
all the evidence in the light most favorable to the State and determines whether any
rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010). This standard ensures that it remains
the jury’s responsibility to fairly resolve conflicts in the testimony, weigh the
evidence, and to draw reasonable inferences from basic to ultimate facts. Jackson,
443 U.S. at 319.
1
In the event the Court determines the trial court abused its discretion, the proper remedy is
remand to the trial court to determine under Article 46B.0004(c) if there is some evidence of
incompetency. If there is such, then the trial court should conduct a formal competency hearing
pursuant to Article 46B. See Turner, 422 S.W.3d at 696-97 & n.42.
16
Applicable Law
A person commits the offense of stalking, as charged in this case, if a
person, on more than one occasion and pursuant to the same scheme or course of
conduct that is directed specifically at another person, knowingly engages in
conduct that the person knows or reasonably believes the other person will regard
as threatening bodily injury or death for the other person, causes the other person
to be placed in fear of bodily injury or death, and would cause a reasonable person
to fear bodily injury or death for himself. Act of May 19, 2011, 82nd Leg., R.S.,
Ch. 591, § 1, 2011 Tex. Sess. Law. Serv. 1433, current version codified at Tex.
Penal Code § 42.072; Ploeger v. State, 189 S.W.3d 799, 807-808 (Tex. App.—
Houston [1st Dist.] 2006, no pet.); CR. 20-22.
Appellant’s Sufficiency Argument is Contrary to the Statutory Text and
Unsupported by Applicable Authority
Here, Appellant concedes that Appellant’s conduct was directed specifically
at RK pursuant to the same scheme or course of conduct. Appellant’s brief at 17.
Appellant claims that the evidence is otherwise insufficient because there was “no
history of violence, no protective orders,2 no assaults, no weapons, nor [was] there
a threat of bodily injury.” Appellant’s brief at 17. But Appellant’s claim that
violence, weapons and specific threats of harm are required is not consistent with
the terms of Section 42.072 or cases applying the statute. Rather, the portion of the
2
A protective order was issued in the case after Appellant was arrested. SX 8; 3 RR 203-204.
17
stalking statute applicable to Appellant penalizes those who “engage in conduct”
that the actor “knows or reasonably believes” another person will find threatens
bodily injury or death. In other offenses, the Legislature explicitly requires threats
of bodily injury or injury in fact, while in the stalking statute they included no such
requirement. Compare, e.g., Tex. Penal Code § 22.01(a)(1)-(2) (offense of assault
includes causing bodily injury or threatening imminent bodily injury) with Tex.
Penal Code § 42.072(a)(1)-(3). Moreover, Appellant cites no authority supporting
his claim that the absence of such evidence renders the evidence insufficient to
sustain a conviction. Appellant’s brief at 16-17. Appellant’s sole authority, Pomier
v. State, 326 S.W.3d 373, 379-81 (Tex. App.—Houston [14th Dist.] 2010, no pet.),
finds a different set of facts to be sufficient to sustain a conviction, but it does not
stand for the proposition that violence or a weapon is required to sustain a
conviction for stalking.
Ample Evidence Supports Appellant’s Conviction for Stalking, Including Threats,
Disclosures, Following the Victim, and Evidence of Her Fear
In Ploeger, the court of appeals found the evidence sufficient to sustain a
conviction for stalking on evidence similar to that in the instant case. Ploeger
became fixated on a younger member of his church. He repeatedly sent her
flowers, gifts, and notes even after he was asked to leave her alone and leave the
church. Ploeger would stare at the victim and follow her. Ploeger’s behavior made
the victim nervous, “extremely jumpy,” and fearful enough that she stopped
18
attending church. Ploeger’s behavior continued even after he was told that it was
scaring his victim and he should leave her alone. The victim testified that she
feared Ploeger would hurt or kill her, but there was not testimony the he ever
directly threatened her. The court of appeals held this evidence legally sufficient to
sustain Ploeger’s conviction for stalking. 189 S.W.3d at 808-811.
In comparison to Ploeger, the instant case contains evidence of more serious
threats and conduct. Appellant exposed the intimate nature of his relationship with
RK to other students and to her ex-boyfriend. 4 RR 37-38; SX 5 at 13, 17. He
specifically threatened her if she discarded a gift and if she chose to break things
off with him. SX5 at 3, 13. He repeatedly tried to meet with her despite her
insistence she did not want to meet with him. SX 5 at 6, 8, 15; SX 6 at 52-53; 3 RR
168. Indeed, he admitted lying to her about his car breaking down in an attempt to
lure her to meet him, an episode she described as “wake up dead in a ditch”
material. SX 6 at 52-53; 3 RR 185. When she did meet with him, he attempted to
touch her multiple times against her wishes and without her consent. 3 RR 171-74.
And, he lurked near her apartment multiple times, followed her to CF’s apartment
on multiple occasions, and lurked near gathering of students she attended. 3 RR
186-87, 198-99; 4 RR 49, 53, 59-60. And, against her wishes, he contacted her
again and again by multiple means to make threatening, crass, and scary
comments. SX 5; SX 6; 3 RR 199-200. Appellant recognized that RK responded to
19
fear and attempted to use that to manipulate her. 3 RR 170; SX 6 at 56. And the
record demonstrates she was fearful: she left her apartment, made arrangements
never to be alone, and had her roommate drive her around and run public errands
for her. 3 RR 190-92; 4 RR 56-57. Moreover, nothing in the record shows that
RK’s reaction to Appellant’s behavior was objectively unreasonable. Rather, any
young, single woman would be fearful of an older, larger man with an explosive
personality who would not let go or go away. Appellant continued to act this way
even though he knew his attentions were unwanted and they were causing RK fear.
The evidence in the instant case amply supports the jury’s verdict. See Ploeger,
189 S.W.3d at 808-11. Appellant’s second issue should be overruled.
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Prayer
The State prays that Appellant’s conviction and sentence be affirmed.
Respectfully submitted,
Greg Willis
Criminal District Attorney
Collin County, Texas
/s/ John R. Rolater, Jr.
John R. Rolater, Jr
Assistant Criminal District Attorney
Chief of the Appellate Division
SBT#00791565
2100 Bloomdale Rd., Ste. 200
McKinney, TX 75071
(972) 548-4323
(214) 491-4860 fax
jrolater@co.collin.tx.us
Certificate of Service
A copy of the State’s brief has been sent by electronic service to counsel for
Appellant, Shawn S. Ismail, at shawnismail@gmail.com, on this, the 22nd day of
February, 2015.
/s/ John R. Rolater, Jr.
John R. Rolater, Jr.
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Certificate of Compliance
This brief complies with the word limitations in Texas Rule of Appellate
Procedure 9.4(i)(2). In reliance on the word count of the computer program used to
prepare this brief, the undersigned attorney certifies that this brief contains 4,671
words, exclusive of the sections of the brief exempted by Rule 9.4(i)(1).
/s/ John R. Rolater, Jr.
John R. Rolater, Jr.
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