MODIFY and AFFIRM; and Opinion Filed February 9, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00420-CR

                            DAVID EDWARD BUTLER, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 203rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1641680-P

                             MEMORANDUM OPINION
                          Before Justices Francis, Evans, and Boatright
                                  Opinion by Justice Boatright
       David Butler was convicted of stalking. He now challenges the sufficiency of the evidence

to support his conviction. The State asserts a cross-point that seeks to correct the trial court’s

judgment to conform to the record. We modify the judgment and affirm the judgment as modified.

       In order to commit the offense of stalking, a person must also commit the offense of

harassment. TEX. PENAL CODE ANN. § 42.072(a)(1) (West 2016). Accordingly, the indictment that

charged Butler with stalking the victim in this case, a child we will call T.S., alleged that he had

committed the offense of harassment against her, too. Although Butler waived his right to a jury

trial and pled guilty, the State was required to introduce evidence showing his guilt. TEX. CODE

CRIM. PROC. ANN. art. 1.15 (West 2005). The State attempted to do so by submitting Butler’s

judicial confession, in which he admitted that he had engaged in conduct that satisfied each element
of a stalking offense. He specifically confessed to knowingly engaging in conduct that constituted

the offense of harassment against T.S.

       Nevertheless, Butler contends on appeal that the State failed to prove harassment. He

claims that the State proved only “window peeping,” which he characterizes as a violation of the

disorderly conduct statute, TEX. PENAL CODE ANN. § 42.01 (West 2016), but not the harassment

statute, id. § 42.07 (West Supp. 2017). He argues that harassment required proof that he engaged

in violent or potentially violent conduct and that the State did not offer evidence that Butler

engaged in such conduct.

       Texas law provides that a person commits the offense of harassment if he intends, among

other things, to abuse another and threatens, in a manner reasonably likely to alarm the person

receiving the threat, to inflict bodily injury or commit a felony against her. TEX. PENAL CODE ANN.

§ 42.07(a)(2). A threat may be communicated by action or conduct as well as words. McGowan v.

State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984). Thus, a person could commit harassment by

intending to abuse someone by threatening, through action or conduct, to commit a felony that

does not inflict bodily injury.

       At Butler’s plea hearing, several witnesses testified that he had peered through T.S.’s

window and loitered around her house. In addition, a detective testified that officers who

responded to complaints about Butler’s peeping found two pair of women’s underwear, which did

not belong to T.S., outside of her window. T.S.’s mother testified that a while after finding the

underwear the family found T.S.’s screen slit and later found the whole frame and screen had been

removed. The detective also testified that Butler believed that T.S. intentionally left her blinds

open so that Butler could view her. At the time, T.S. was 12 years old; Butler was in his late 30’s.

This is evidence that Butler’s conduct constituted a threat to engage in sexual contact with a child

under 17 or to cause her to engage in sexual contact, which is a felony. TEX. PENAL CODE ANN. §

                                                –2–
21.11(a)(1), (d) (West Supp. 2017). T.S.’s mother testified that Butler’s conduct frightened her,

prompted the family to install a video security system outside the home, caused T.S. to sleep in

her room with the lights on, and some nights caused T.S. to sleep with her mother while her father

slept in T.S.’s bed. Therefore, the State submitted evidence of each element of the offense of

harassment: that Butler, with intent to abuse T.S., engaged in conduct that threatened, in a manner

reasonably likely to alarm T.S., to commit a felony against her.

       In light of Butler’s guilty plea, our review is confined to determining whether sufficient

evidence supports the judgment of guilt. McGill v. State, 200 S.W.3d 325, 330 (Tex. App.—Dallas

2006, no pet.). The evidence need not prove Butler’s guilt beyond a reasonable doubt—instead, it

must simply embrace every essential element of the offense charged. Id. (citing Stone v. State, 919

S.W.2d 424, 427 (Tex. Crim. App. 1996)). Because the State submitted evidence embracing every

essential element of the charged offense, we overrule Butler’s sole issue.

       The State raises a cross-point urging that the trial court’s judgment should be modified to

conform to the record. Although stalking is a third-degree felony, TEX. PENAL CODE ANN. §

42.072(b) (West 2016), the record reflects that Butler pleaded true to an enhancement allegation,

which increased his punishment to that of a second-degree felony, TEX. PENAL CODE ANN. §

12.42(a) (West Supp. 2017). The trial court sentenced Butler to twenty years’ confinement,

consistent with a second-degree felony. See TEX. PENAL CODE ANN. § 12.33(a) (West 2011)

(prescribing punishment range of two to twenty years’ imprisonment for second-degree felony

conviction). However, the court made no express finding of true with respect to the enhancement,

and the judgment likewise reflects no such finding. The State requests this Court to modify the

judgment to reflect that Butler pled true to the enhancement and that the trial court made an implied

finding of true. We have implied such a finding in similar circumstances and have modified the

judgment accordingly. Petersimes v. State, No. 05-10-00227-CR, 2011 WL 2816725, at *13 (Tex.

                                                –3–
App.—Dallas July 19, 2011, pet. ref’d) (not designated for publication); see TEX. R. APP. P. 43.2(b)

(authorizing court of appeals to modify trial court’s judgment and to affirm it as modified). We

likewise imply a finding of true to the enhancement paragraph in this case. We modify the trial

court’s judgment to reflect that Butler pled true to the enhancement and that the trial court found

the paragraph to be true.

                                         CONCLUSION

       We modify the judgment of the trial court and affirm the judgment as modified.




                                                   /Jason Boatright/
                                                   JASON BOATRIGHT
                                                   JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2

170420F.U05




                                                –4–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 DAVID EDWARD BUTLER, Appellant                     On Appeal from the 203rd Judicial District
                                                    Court, Dallas County, Texas
 No. 05-17-00420-CR         V.                      Trial Court Cause No. F-1641680-P.
                                                    Opinion delivered by Justice Boatright.
 THE STATE OF TEXAS, Appellee                       Justices Francis and Evans participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to reflect that appellant pled true to the enhancement paragraph and that the trial court found
such paragraph to be true.

       As REFORMED, the judgment is AFFIRMED.


Judgment entered this 9th day of February, 2018.




                                              –5–
