Blount v. State

O’CONNOR, Justice,

dissenting.

I dissent from the panel’s resolution of the appellant’s challenge to the factual sufficiency of the evidence. David Lynn Blount, the appellant, challenges the factual sufficiency of the evidence to support the court’s finding that he was guilty of the misdemeanor offense of harassment.

Factual Sufficiency

Under the factual sufficiency review, we consider all the evidence, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Appellant claims that finding him guilty, when considering the entire record, would produce a manifestly unjust result and would shock the conscience of the court. I agree.

The first element challenged by factual sufficiency is whether the appellant made repeated telephone calls. In this record, we have evidence of only four telephone calls: two calls were made sometime dining the month before September 19th, and two calls were made on September 19th.¹ The earlier calls were not taped or described by Cliett. The only evidence of those calls was:

Q: Can you tell me what happened around 11:00 p.m. [on September 19]?

A: [Cliett]: Sir, around 11:00 p.m., the phone rang and I though maybe it would be him because I had previously told him on two occasions not to call me that late at night, and so I allowed the answering machine to pick it up because I figured it would be him, sir.

Q: You said you previously told him not to call you. Why — had the two of you been having some personal difficulties?

A: Well, sir, just ever since the time I quit him and went to work for another wrecker service, he on occasions, he would call me after 11:00 o’clock at night and harassing me about, well you shouldn’t have quit me and on and on, and I said, David, please do not call me anymore in the condition you’re in, because in my opinion, he was always drunk when he called me at that hour, and I said, if you can’t call me at a decent hour in a decent condition, please don’t call me, and I said, or — he goes, well, what are you going to do to me, and I says, well, you’ll find out.

Q: So there had been some unfriendly communications between the two of you before September 19th?

A: Yes, sir, after I quit him, yes, sir.

(Emphasis added.)

The majority considers the two calls made sometime the month before, which were characterized by Cliett as “unfriendly communications,” as part of the repeated element in the harassment of Cliett. I disagree.

The two earlier calls were made after Cliett left his job with the appellant and the month before the two calls in the indictment. The apparent topic for conversation in those calls was about leaving his job with the appellant to compete with him. Those calls were not related to the same complaint as those in the September 19th calls, which involved vandalism to appellant’s truck. Thus, we should not consider the earlier telephone calls as part of a series of calls made with the intent to harass. If we separated the earlier calls from the September 19th calls, we would only have two calls to consider.

I would find that the “repeated” element requires more than two calls between people who have known and worked with each other for a number of years, particularly when the relationship ends and one party wants to discuss a problem that resulted in the termination of the relationship. See e.g., Ford v. State, 870 S.W.2d 155, 157, 161 (Tex.App—San Antonio 1993, pet. ref'd) (no evidence that repeated telephone calls, in which defendant identified himself and tried to resolve a relationship, were made with intent to harass); Bader v. State, 773 S.W.2d 769, 770 (Tex.App.—Corpus Christi 1989, pet. ref'd) (repeated calls involved 15 calls in one day, 2 calls next day, and 12 calls next day). I would sustain the challenge to the element of “repeated” telephone calls.

The second element challenged by factual sufficiency is whether the appellant made repeated telephone calls with an intent to harass, annoy, alarm, abuse, torment, or embarrass. For this part of the review, we should look to the substance of the two calls made on September 19th.

In the first call on the night of September 19th, the appellant demanded that Cliett pick up the phone; when Cliett did not answer, the appellant used curse words and hung up. Cliett, a former U.S. Marine sergeant, admitted he uses curse words himself. In the second call, which occurred a few minutes later, the appellant berated Cliett for not picking up the telephone and for damaging his tow truck, called him obscene names, and ended the call with an oblique threat. The second call on September 19th was the only call which Cliett claimed the appellant alarmed him in any way. The most that can be said about the first call, in which the appellant cursed and hung up, was that it was mildly annoying. One mildly annoying call and one alarming call are factually insufficient to support the finding of guilt.

Under the factual sufficiency challenge, I would find the appellant did not make “repeated” calls with the intent to harass, annoy, alarm, abuse, torment, or embarrass. I would reverse and remand the judgment for a new trial.

1 . Cliett said the appellant called him after he quit and went to work for a competitor on August 14, 1995; he said the calls probably started on August 16. The incident made the basis of the complaint was on September 19, 1995.