DocketNumber： 03-94-00631-CR
Filed Date： 6/21/1995
Status： Precedential
Modified Date： 9/5/2015
PER CURIAM
The State appeals from an order of the county court at law granting appellee's motion to quash the information in this cause. Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (West Supp. 1995); State v. Moreno, 807 S.W.2d 327 (Tex. Crim. App. 1991). The information accuses appellant of harassment pursuant to Penal Code section 42.07(a)(7). Tex. Penal Code Ann. § 42.07(a)(7) (West 1994). (1) The information reads, in pertinent part:
Eugene Jackie Lanzl, hereinafter referred to as "Defendant," did, with intent to harass, annoy, alarm, abuse, torment, or embarrass Mary Elson, on more than one occasion engaged [sic] in conduct directed specifically toward the said Mary Elson, that was reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the said Mary Elson, to-wit: on at least one of the said occasions, the said Defendant by acts or words threatened to inflict bodily injury on the said Mary Elson, namely on or about the 20th day of August, 1993, in the County of Comal and the State of Texas, the said Defendant did then and there threaten to strike the said Mary Elson and the said Mary Elson reported the conduct to the Comal County sheriff's office on the 20th day of August, 1993, and, further, on at least one of the said occasions after the making of the said report, the said Defendant engaged in said conduct, namely, on the 13th day of January, 1994, in the County of Comal and the State of Texas, the said Defendant shined the headlights of a motor vehicle through a window of the said Mary Elson's residence at night.
(Italics added.)
Appellee's motion to quash was directed to the emphasized portion of the information and complained that it "does not identify relative to what kind of conduct the defendant engaged in on January 13, 1994 which specifically related to any of the subparagraphs set out in art. [sic] 42.07 of the Tex. Penal Code as being an act or action prohibited by said article." Counsel sought to explain this complaint as follows:
MR. SCHROEDER: Right, it [section 42.07(a)(7)(C)] says described by this subdivision, though, and what is it that -- which subdivision is it referring to?
If it's referring to any of the subdivisions in that 42.07, in reading that that's not what he did according to the allegations. And if that relates, then, back to (B), in other words, you've got to again intentionally threaten to inflict injury, or a member of the family, that sort of thing. Then I think that's where it would come into play.
But I don't think shining a light through a window is sufficient, Judge.
THE COURT: I think the subdivision referred to is subdivision (7)(A).
MR. SCHROEDER: (7)(A), right, uh-huh.
THE COURT: Which would be conduct directed specifically toward the other person that's reasonably likely to alarm that person or embarrass that person. Any conduct that would reasonably believe.
MR. SCHROEDER: Uh-huh.
THE COURT: In addition to this threat, another threat.
MR. SCHROEDER: Specific conduct directed toward that person.
THE COURT: Shine a light through the window?
MR. SCHROEDER: Uh-huh. That's what I'm getting at as far as conduct. I can't figure out how that conduct would fit within the -- I mean, I know where David's [the prosecutor] coming from, and I understand that.
THE COURT: How would that alarm anybody, a light shined through a window?
MR. FRIESENHAHN: Well, it states that it was intended to alarm.
THE COURT: Would you-all be terribly upset if I granted this motion?
MR. FRIESENHAHN: Well, we'll make some new law one way or the other.
MR. SCHROEDER: I don't think that's what the statute really intended, I think it's more of a threat like -- this was actually adopted from the stalker legislation of other states where you have a stalker out there who is stalking other people.
I don't think really, Judge, it fits. Again, I understand the State's position, but I don't think it really fits within the purview of that law, or the intent of the law, let me put it this way.
THE COURT: Court's going to grant the Motion to Quash.
In its written order, the court gave no further explanation of its decision to grant the motion to quash.
An information must state facts which if true constitute a violation of the law. Posey v. State, 545 S.W.2d 162, 163 (Tex. Crim. App. 1977). As we understand the record, the county court at law was of the opinion that shining the headlights of a motor vehicle through the window of another person's residence at night is not conduct that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the other person. The court therefore concluded that the allegation that appellee "shined the headlights of a motor vehicle through a window of the said Mary Elson's residence at night" does not describe harassing conduct under section 42.07(a)(7).
Under section 42.07(a)(7), a person who repeatedly engages in conduct intended and reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass another person is guilty of harassment. On at least one of these occasions, the defendant must threaten the complainant with bodily injury or threaten to commit an offense against the person, family, or property of the complainant. Art. 42.07(a)(7)(B). Otherwise, section 42.07(a)(7) does not require that the defendant's conduct be inherently threatening or abusive. For example, the statute expressly states that following another person may constitute an offense if committed under the requisite circumstances. Art. 42.07(a)(7)(A). Following another person is, in itself, an innocuous act. But this act takes on a more sinister meaning if the actor intends to harass or alarm the person being followed, if the actor has directed other similarly motivated acts toward the person being followed, and if the actor has threatened the person being followed with bodily injury.
In this cause, the State does not seek to prosecute appellee merely for shining a light through Mary Elson's window at night. Instead, the information alleges a series of acts by appellee that were intended by him to harass, annoy, alarm, abuse, torment, or embarrass Elson. One of these acts consisted of a threat of bodily injury. It is in this context that the information alleges that appellant "shined the headlights of a motor vehicle through a window of . . . Mary Elson's residence at night." We believe that a reasonable person in Elson's position could perceive such conduct to be harassing, annoying, alarming, abusive, tormenting, or embarrassing under the circumstances alleged.
Appellee argues in his reply brief that the information does not allege harassing behavior because it does not allege that Elson was at home at the time appellant shined the lights through her window. An information is sufficient, however, if it alleges the offense in ordinary and concise language with a degree of certainty adequate to give the accused notice of the particular offense and to enable the pronouncement of the proper judgment. Thomas v. State, 621 S.W.2d 158, 161 (Tex. Crim. App. 1981) (opinion on motion for rehearing). The information in this cause is adequate under this standard. The State is not required to plead its evidence. Id.
We find the information in this cause sufficient to allege an offense under section 42.07(a)(7). Therefore, the State's point of error is sustained and the order granting appellee's motion to quash the information is reversed. The cause is remanded to the county court at law for further proceedings.
Before Chief Justice Carroll, Justices Aboussie and Jones
Reversed and Remanded
Filed: June 21, 1995
Do Not Publish
1. Section 42.07(a)(7) provides:
(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he:
. . .
(7)(A) on more than one occasion engages in conduct directed specifically toward the other person, including following that person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass that person;
(B) on at least one of those occasions by acts or words threatens to inflict bodily injury on that person or to commit an offense against that person, a member of that person's family, or that person's property; and
(C) on at least one of those occasions engages in the conduct after the person toward whom the conduct is specifically directed has reported to a law enforcement agency the conduct described by this subdivision.
The amendments to section 42.07 effective September 1, 1994, are irrelevant to this cause.