Campbell v. State , 1983 Tex. Crim. App. LEXIS 1090 ( 1983 )

ONION, Presiding Judge,

dissenting.

Appellant was convicted of the offense of telephone harassment. Punishment is 180 days in the Harris County Jail. The First Court of Appeals in Houston affirmed appellant’s conviction. Appellant in his petition for discretionary review contends that the Houston Court of Appeals was in error due to fundamental defects in both the information and jury charge.

Section 42.07(a)(1), V.A.P.C. provides:

“A person commits an offense if he intentionally:

“(1) communicates by telephone or in writing in vulgar, profane, obscene, or indecent language or in a coarse and offensive manner and by this action intentionally, knowingly, or recklessly annoys or alarms the recipient or intends to annoy or alarm the recipient.” ¹

In the instant situation the charging instrument alleges, in pertinent part that the appellant did:

“intentionally communicate by telephone in vulgar, profane, obscene and indecent language, and in coarse manner intentionally and knowingly annoy and alarm the recipient .... ”

In Kramer v. State, 605 S.W.2d 861 (Tex.Cr.App.1979) Judge Phillips identified the essential elements which the State must prove in order to convict under the harassment statute:

“Under this provision of the harassment statute the elements the State must prove are (1) a person (2) intentionally (3) communicates (by telephone or writing) (4)(a) in vulgar, profane, obscene, or indecent language or (b) in a coarse and offensive manner and by such action (5)(a) intentionally, knowingly, or recklessly annoys or alarms the recipient or (b) intends to annoy or alarm the recipient.”

The plain language of the statute establishes that the offense is committed by the defendant communicating in such a manner as to annoy or alarm the victim.² This communication must be the action which causes the victim’s annoyance or alarm. Failure of the charging instrument in the instant case to tie the communication by the appellant to the victim’s annoyance or alarm was fundamental error.

The judgment of the Court of Appeals should be reversed and the information ordered dismissed. I dissent.

ODOM, TEAGUE and MILLER, JJ., join in this opinion.

1 . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

2 . We note the proposed charging instruments found in 7 Morrison and Blackwell, Texas Practice, Wilson’s Texas Criminal Forms Annotated, Sections 18.08, 18.09, 18.10 (8th ed. 1977) each include language which adequately connect the harassment with the victim’s annoyance or alarm:

“Sec. 18.08 Harassment — Profane, etc. Language

“[Commencement Form, Ch. 1] A.B., did then and there, intentionally communicate by telephone [or in writing] in vulgar, profane, obscene and indecent language [or in a coarse and offensive manner] and by this action intentionally and knowingly [or recklessly] annoyed and alarmed [or intended to annoy and alarm] C.D. the recipient of said communication.

“Sec. 18.09 Harassment — Threats “[Commencement Form, Ch. 1] A.B., did then and there intentionally threaten by telephone [or in writing] to take unlawful action, to wit: _[specify] against C.D. and by this action intentionally and knowingly [or recklessly] annoyed and alarmed [or intended to annoy and alarm] C.D. the recipient of said threats.

“Sec. 18.10 Harassment — Anonymous Calls “[Commencement Form, Ch. 1] A.B., did then and there intentionally place an (or more than one) anonymous telephone call to C.D. at an unreasonable hour, to wit: _ specify without a legitimate purpose of communication [or in an offensive and repetitious manner] and by this action intentionally and knowingly [or recklessly] annoyed and alarmed [or intended to annoy and alarm] C.D. the recipient of said call [or calls].”