Affirm and Opinion Filed July 12, 2013




                                         S  In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-12-00296-CR

                              DEBRA HERNANDEZ, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the County Criminal Court No. 3
                                   Dallas County, Texas
                           Trial Court Cause No. MB11-12510

                                           OPINION

                         Before Justices Bridges, FitzGerald, and Myers
                                 Opinion by Justice FitzGerald

       Appellant was convicted of the misdemeanor offense of harassment and sentenced to 180

days in jail probated for two years, and a $500 fine. In a single issue on appeal, appellant asserts

the evidence was insufficient to support her conviction. We affirm the trial court’s judgment.

                                        BACKGROUND

       Prior to the offense, appellant was in a relationship with Christopher Guerrero. Guerrero

left appellant for Gayle Kent while appellant was pregnant with his child. Appellant admitted she

harbored a great deal of animosity towards Guerrero and directed this animosity towards Kent.

       After appellant threatened Kent with a series of profane electronic messages and

annoying telephone calls, she was charged by information with harassment. The information

alleged that appellant, with the intent to harass, annoy, alarm, abuse, torment, and embarrass
Kent, (1) caused the telephone of Kent to ring repeatedly; (2) made repeated telephone calls

anonymously; (3) knowingly permitted a telephone under her control to be used by another to

commit an offense; (4) threatened to inflict bodily injury on Kent by electronic communication

in a manner reasonably likely to alarm Kent; and (5) sent repeated electronic communications in

a manner reasonably likely to harass, annoy, torment, or offend another.1

           At trial, Kent testified that over a two month period, appellant sent profane and

threatening electronic messages to her on Facebook. Appellant referred to Kent as a “hoe,” and

challenged Kent to “say it to [her] muther f*** face.” She also told Kent that “[she] don’t play

no f*** games.” Kent testified that the messages made her feel annoyed and threatened.

Appellant also published a public statement about Kent on her Facebook page that Kent

described as making her feel very embarrassed, and sent a message to Guerrero, stating “[h]andle

that bitch or I will. And you know I will. I’m not one to be messed with . . . .”

           Kent sent appellant a message asking that she stop contacting her. Appellant responded,

“[y]ou know what u got urself in[to].” Kent again requested that appellant cease contacting her

and then blocked appellant’s ability to contact her on Facebook. After doing so, Kent began

receiving email communications from pornographic and dating websites that she had not signed

up for. Kent also began receiving anonymous calls.

           On one occasion, while Kent was in class, appellant telephoned eleven times in ten

minutes. The calls were such a nuisance that Kent was asked to leave class. Kent answered the

phone on the eleventh call and told appellant if she wanted to speak with Guerrero, she would

need to call back after 5:30. Two minutes later, appellant sent Kent six text messages referring


     1
       Although the information lists “causing the telephone of complainant to ring repeatedly” and “makes repeated telephone communications
anonymously,” as separate theories, both are listed disjunctively in section (a)(4) of the harassment statute. This section of the statute states that it
is an offense if, “with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he . . . (4) causes the telephone of another to ring
repeatedly or makes repeated telephone communications anonymously . . . .” See TEX. PENAL CODE ANN. § 42.07(a)(4) (West 2011).




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to her as a bitch and a slut and threatening to assault her. Kent stated that she was afraid that

appellant would try to hurt her.

       Appellant admitted she sent messages to Kent but claimed Kent had initiated the

exchange by electronic mail. Appellant introduced copies of the alleged emails but could not

produce them in their original form because she cancelled the account where she had allegedly

received them. On cross-examination, appellant admitted that portions of the text within the

emails were very similar to the Facebook messages she sent. Kent testified that she had never

seen the emails and did not send them.

        After receiving all of the evidence, the trial judge found appellant guilty. In so doing, the

judge noted that he found it “a little incongruent that [appellant and Kent] would communicate

for several months by email and then all of a sudden switch over to communicating by

Facebook.” The trial judge also stated, “And especially the blast that went out for the whole

world to see would obviously be embarrassing, seem somewhat annoying, tormenting, et cetera.

And there seems to be uncontroverted evidence that these e-mails were sent and that they had

that effect. And on that basis, I find the Defendant guilty.”

       Appellant filed a motion for new trial, and the trial court denied the motion. Thereafter,

appellant timely filed her notice of appeal.

                                          DISCUSSION

       In her sole issue, appellant asserts the evidence is insufficient to support her conviction.

Specifically, appellant contends that three Facebook messages and one Facebook post over a

three month period is insufficient to establish a repeated electronic communication for purposes

of the harassment statute.

       We review the sufficiency of the evidence under the standard of review set forth in

Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.

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App. 2010). Under the Jackson standard, we review all of the evidence in the light most

favorable to the verdict and determine whether any rational trier of fact could have found the

elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330

S.W.3d 633, 638 (Tex. Crim. App. 2010). In conducting a sufficiency review, we defer to the

jury’s role as the sole judge of the witnesses’ credibility and the weight their testimony is to be

afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s duty to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim App. 2007). When the record supports conflicting inferences, we presume the factfinder

resolved the conflicts in favor of the prosecution and defer to that determination. Jackson, 443

U.S. at 326; Clayton, 235 S.W.3d at 778.

        In the present case, appellant was charged by information with violating the harassment

statute under four different theories: threatening Kent with bodily injury through electronic

communications, causing Kent’s telephone to ring repeatedly or making anonymous telephonic

communications repeatedly, permitting another to use one’s telephone to commit harassment,

and repeated electronic communications. See TEX. PENAL CODE ANN. § § 42.07(a)(2),(4),(6),(7)

(West 2011). Only three of these sections are at issue on appeal: Section (a)(2), threatening

bodily injury by electronic communication, Section (a)(4), causing the telephone of another to

ring repeatedly, and Section (a)(7), sending repeated electronic communications.2

        Appellant argues the judge found her guilty under section 7 (repeated electronic

communication) and acquitted her under sections 2 (threatening electronic communication) and 4

(causing telephone to ring repeatedly). Appellant’s argument is premised on the comments

        2
           The State concedes that no evidence was introduced to support a conviction for a section (6)(a) violation
(permitting another to use one’s telephone to commit harassment).



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preceding the trial court’s pronouncement of a general verdict of guilt. According to appellant,

the judge made no findings related to the contested testimony concerning the phone calls and text

messages. The judge’s comments began with a reference to the emails appellant introduced into

evidence. The judge stated:

                  Well, first I find it a little incongruent that they would be communicating
                  for all these months by e-mail and then all of a sudden switch over to
                  communicating through the Facebook account, or whatever it is. But even
                  if these e-mails are true, I don’t have to decide whether they are or they
                  aren’t. The statute says that it doesn’t -- as opposed to the stalking statute,
                  where there has to actually be a threat of bodily injury, under the
                  harassment statute, which surprisingly was found Constitutional by the
                  Court of Criminal Appeals within the last year or so, that the statute’s
                  saying that if it’s done for purposes to embarrass, torment, annoy, et
                  cetera, that under the harassment standards that that is sufficient. And
                  especially the blast that went out for the whole world to see would
                  obviously be embarrassing, seem somewhat annoying, tormenting, et
                  cetera. And there seems to be uncontroverted evidence that these e-mails
                  were sent and that they had that effect. And on that basis, I find the
                  Defendant guilty.

        In support of her argument that these findings constitute an implied acquittal on all

theories alleged in the information except the section (a)(7) theory, appellant relies on State v.

Hamilton, 05-97-00233-CR, 1997 WL 537717 (Tex. App.—Dallas Sept. 3, 1997, no pet.) (not

designated for publication). The Hamilton case, however, is distinguishable from the instant

case.

           In Hamilton, the defendant was charged with criminal mischief. But at the conclusion of

a bench trial, the judge found the evidence substantiated a finding that the defendant had

committed a lesser offense — reckless destruction of property. In a footnote, this Court stated

that the trial court’s finding was an “implied acquittal on the offense of criminal mischief.” Id. at

*6, n.9.

        Unlike this case, Hamilton involved an acquittal of a greater offense by entering a finding

that the defendant committed a lesser offense. Id. Here, appellant was charged under four


                                                   –5–
different theories of the same offense rather than a lesser offense. Because of this distinction, we

decline to characterize the court’s comments as an implied acquittal of the charges under sections

(a)(2) and (a)(4). The record shows the judge pronounced a general verdict of guilt for the crime

of harassment.3

           Appellant’s challenge is directed only to the sufficiency of the evidence to support a

conviction under section (a)(7). In particular, appellant complains that one public post and three

Facebook messages over the scope of three months do not constitute a “repeated

communication” within the meaning of the statute as interpreted by the Texas Supreme Court.4

But we need not determine whether the evidence was sufficient under section (a)(7) if the

evidence is sufficient to support a conviction under any of the theories alleged. See Rabbani v.

State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992). When the trier of fact returns a general

verdict and the evidence is sufficient to support a finding under any of the theories submitted, the

verdict will be upheld. See Grissam v. State, 267 S.W.3d 39, 41 (Tex. Crim. App. 2008);

Norwood v. State, No. 05-10-00261-CR, 2011 WL 1206787, at *5 (Tex. App. —Dallas Feb. 23,

2011, no pet.) (determining evidence sufficient under section (a)(4) despite appellant’s challenge

to sufficiency under section (a)(7)).

           Here, there is sufficient evidence in the record to support a conviction under section

(a)(4). Section (a)(4) of the statute provides:

                      (a) A person commits an offense, if, with intent to harass, annoy, alarm,
                          abuse, torment, or embarrass another, he . . .




     3
       The written judgment also does not specify that appellant was found guilty pursuant to a particular subsection of the harassment statute.
Indeed, the judgment does not contain a statutory reference at all.
     4
       See e.g. Scott v. State, 322 S.W.3d 662, 669 n. 12 (Tex. Crim. App. 2010). In Scott, the court considered the meaning of “repeated” with
regard to a “repeated telephone communication.” The court stated that “repeated,” means “more than one telephone call in close enough
proximity to be properly termed a single episode.” Id.




                                                                     –6–
               (4) causes the telephone of another to ring repeatedly or makes repeated
               telephone communications anonymously or in a manner reasonably likely
               to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

TEX. PENAL CODE ANN. § 42.07(a)(4). Kent testified that she was in class when appellant called

eleven times in ten minutes. When Kent answered the phone and told appellant she would have

to call later if she wanted to speak to Guerrero, appellant immediately sent six text messages.

The messages referred to Kent as a bitch and a slut and included a threat of assault. Kent testified

that she was afraid appellant would try to harm her, and these phone calls, like the messages on

Facebook, made her feel annoyed and embarrassed.

       Although appellant denied making the phone calls and claimed she did not intend to

harass Kent, the judge was free to assess her credibility and accept or reject her testimony. See

Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987). Therefore, on this record, we

conclude the evidence was sufficient to support appellant’s conviction for harassment. Because

we have found the evidence sufficient under section (a)(4), we need not consider whether the

evidence was also sufficient under any of the alternative theories under which appellant was

charged. See Norwood, 2011 WL 1206787, at *5. Having resolved appellant’s sole issue against

her, we affirm the trial court’s judgment.




                                                      /Kerry P. FitzGerald/
                                                      KERRY P. FITZGERALD
                                                      JUSTICE

DO NOT PUBLISH
TEX. R. APP. P. 47

120296F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

DEBRA HERNANDEZ, Appellant                         On Appeal from the County Criminal Court
                                                   No. 3, Dallas County, Texas
No. 05-12-00296-CR        V.                       Trial Court Cause No. MB11-12510.
                                                   Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee                       Justices Bridges and Myers participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered July 12, 2013




                                                   /Kerry P. FitzGerald/
                                                   KERRY P. FITZGERALD
                                                   JUSTICE




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