Opinion issued March 13, 2014




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-12-00397-CR
                           ———————————
                   SERGIO IAN RODRIGUEZ, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                 On Appeal from County Court at Law No. 3
                         Brazoria County, Texas
                       Trial Court Case No. 185062


                         MEMORANDUM OPINION

      Appellant, Sergio Ian Rodriguez, was charged by information with

harassment.1   Appellant pleaded not guilty.    The jury found him guilty and

assessed punishment at 180 days’ confinement and a fine of $1,000. The jury also


1
      See TEX. PENAL CODE ANN. § 42.07(a)(7) (Vernon Supp. 2013).
recommended that the confinement and fine be suspended and that Appellant be

placed on community supervision.              The trial court followed the jury’s

recommendation on punishment. In one issue on appeal, Appellant argues that the

evidence is insufficient to support his conviction.

      We affirm.

                                    Background

      Appellant’s ex-wife, Nora, divorced him in April 2007. They had two

children from the marriage, and Nora was designated as the primary conservator of

the children.   The parties had an acrimonious relationship at the time of the

divorce.

      Four years later, Appellant continued to use abusive, insulting, and vulgar

language against Nora. From January 8, 2011 through January 18, 2011—one of

the time periods focused on by the State— Appellant repeatedly sent Nora texts

that called her vulgar and demeaning names. Some of the texts were sent at times

of the night that Appellant knew Nora would be trying to sleep.          Appellant

regularly disparaged Nora’s abilities and qualities as a mother, and made repeated

crass sexual allegations. In one text sent on the anniversary of their wedding day,

Appellant wrote, “Happy anniversary whore. You’ll remember this day for a long

time.” Nora testified she understood that text as a threat and was concerned that

Appellant would try to kill her. The evidence establishes that Nora repeatedly


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asked Appellant to leave her alone in response to Appellant’s texts. In response to

one such text, Appellant wrote, “Jesus. How many final warnings do I get?”

      The State also presented evidence of a chain of emails sent between

Appellant and Nora in early February 2011.         The email chain contained a

particularly lengthy email from Appellant using similar vulgar and demeaning

language. Nora again instructed Appellant to stop harassing her.

      At trial, Appellant admitted that at least some of the things he wrote in the

texts in question were “pretty offensive.” He also admitted that, of the texts and

emails admitted at trial, what Appellant said to Nora was disproportionate to

anything she sent to him. Nevertheless, Appellant testified that the way he talked

to her in the texts and emails was typical of how both of them would talk to each

other. Appellant insisted that texts and emails from Nora from other time periods

would have shown similarly abusive language. He also claimed that the abusive

and vulgar texts he would send to her were part of his attempt to get her to leave

him alone.

                           Sufficiency of the Evidence

      In his sole issue on appeal, Appellant argues the evidence is insufficient to

support his conviction.




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A.    Standard of Review

      We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under a single

standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)

(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979). Winfrey v. State, 393 S.W.3d 763, 768 (Tex.

Crim. App. 2013). Pursuant to this standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071

(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be

insufficient under the Jackson standard in two circumstances: (1) the record

contains no evidence, or merely a “modicum” of evidence, probative of an element

of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See

Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see

also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.




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      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes that the fact finder resolved any conflicts

in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In

viewing the record, direct and circumstantial evidence are treated equally;

circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, and circumstantial evidence alone can be sufficient to establish guilt.

Clayton, 235 S.W.3d at 778.         Finally, the “cumulative force” of all the

circumstantial evidence can be sufficient for a jury to find the accused guilty

beyond a reasonable doubt. See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim.

App. 2006).

B.    Analysis

      As it pertains to Appellant, a person commits harassment “if, with intent to

harass, annoy, alarm, abuse, torment, or embarrass another, the person . . . sends

repeated electronic communications in a manner reasonably likely to harass,

annoy, alarm, abuse, torment, embarrass, or offend another.” TEX. PENAL CODE

ANN. § 42.07(a)(7) (Vernon Supp. 2013). An electronic communication is “a


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transfer of signs, signals, writing, images, sounds, data, or intelligence of any

nature transmitted in whole or in part by a wire, radio, electromagnetic,

photoelectronic, or photo-optical system.” Id. § 42.07(b)(1). Email is explicitly

included in this definition. Id. § 42.07(b)(1)(A). We hold this also includes text

messaging. See id. § 42.07(b)(1).

      Appellant argues the evidence is insufficient to establish intent, to establish

that the relevant acts occurred on the date alleged by the state, or to establish that

the electronic communications he sent were repeated. We begin with Appellant’s

argument that there was insufficient evidence to establish that the relevant acts

occurred on the date alleged by the state. As part of this argument, Appellant

claims that the State was required to establish that he sent repeated

communications on January 13, 2011, the date specified in the charging

instrument. This is wrong.

      The charging instrument filed against Appellant alleged that he sent repeated

electronic communications “on or about the 13th day of January, 2011, and before

the making and filing of this Complaint.” The State is not required to allege a

specific date in a charging instrument. Sledge v. State, 953 S.W.2d 253, 255 (Tex.

Crim. App. 1997). “The primary purpose of specifying a date in the [charging

instrument] is not to notify the accused of the date of the offense but rather to show

that the prosecution is not barred by the statute of limitations.” Garcia v. State,


                                          6
981 S.W.2d 683, 686 (Tex. Crim. App. 1998). As a result, when the State alleges

an offense was committed “on or about” a specific date, the State can “prove a date

other than the one alleged in the indictment as long as the date is anterior to the

presentment of the indictment and within the statutory limitation period.” Sledge,

953 S.W.2d at 256. Accordingly, the State was not limited to establishing only

that Appellant repeatedly sent electronic communications on January 13, 2011.

      Next, Appellant argues that the evidence was insufficient to establish he sent

electronic communications repeatedly because the messages were not close enough

together in time.    Appellant relies on Blount v. State for authority for this

argument. 961 S.W.2d 282 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). In

Blount, we considered whether “two calls in one night and two calls sometime

during the month before” could be considered “repeated” under the statute. 2 Id. at

284. We held that, while these were not many calls, they were “sufficient evidence

to support the finding of repeated calls.” Id.

      The evidence in this case shows Appellant sent Nora 59 texts over a nine-

day period. While some of the texts, considered individually, likely would not be

considered harassing, the cumulative force of the repeated texts is sufficient to

2
      Blount involved harassment through telephonic communications rather than
      through electronic communications. See Blount v. State, 961 S.W.2d 282 (Tex.
      App.—Houston [1st Dist.] 1997, pet. ref’d); TEX. PENAL CODE ANN.
      § 42.07(a)(4), (7). Both subsections require the communication to be “repeated,”
      however, and both use “repeated” in the same sense. Accordingly, we agree with
      the parties that Blount is on point for our analysis.
                                          7
support the jury’s determination that the harassing communications were made

repeatedly. In that span of texts, Appellant called Nora a “whore” five times.

Other texts contain descriptive language far more vulgar than that.         Despite

multiple texts from Nora telling him to stop texting vulgar messages to her,

Appellant persisted.

      A few days before this streak of texts, Appellant sent texts to Nora calling

her a “whore” four times over a period of less than eight hours. The anniversary of

their wedding day came a couple of days after the streak of texts. At 1:03 a.m. that

morning, Appellant texted Nora, saying, “Happy anniversary whore.            You’ll

remember this day for a long time.” Less than a month later, Appellant sent Nora a

particularly lengthy email filled with vulgar and demeaning language.

      There is far greater evidence here of Appellant repeatedly sending harassing

electronic communications than there was in Blount. See id. Accordingly, we hold

there was sufficient evidence for the jury to determine that Appellant’s harassing

electronic communications were sent repeatedly.

      Finally, we consider Appellant’s argument that there is insufficient evidence

of intent. In order to obtain a conviction, the State was required to prove that

Appellant “inten[ded] to harass, annoy, alarm, abuse, torment, or embarrass” Nora.

TEX. PENAL CODE ANN. § 42.07(a). Intent can be inferred from circumstantial

evidence. Blount, 961 S.W.2d at 284. Here the jury had evidence of Appellant’s


                                         8
repeatedly sending Nora vulgar texts despite numerous demands that he stop.

Appellant suggests that the evidence is insufficient to establish intent because he

testified that this was just the way the both of them talked to each other. Appellant

also testified, however, that at least some of the things he wrote in the texts in

question were “pretty offensive” and that, of the texts and emails admitted at trial,

what Appellant said to Nora was disproportionate to anything she sent to him.

      The various evidence concerning intent was presented to the jury to

consider. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789 (holding it is “the

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts”). Nothing prohibited the jury from resolving the evidence against Appellant

on the issue of intent. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim.

App. 1991) (“As factfinder, the jury is entitled to judge the credibility of witnesses,

and can choose to believe all, some, or none of the testimony presented by the

parties.”). Accordingly, we hold there is sufficient evidence in the record to

support the jury’s determination that Appellant acted with intent.

      We overrule Appellant’s sole issue.




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                                    Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Jennings, Higley, and Sharp.

Do not publish. TEX. R. APP. P. 47.2(b).




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