Opinion issued May 9, 2013.




                                    In The

                              Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                              NO. 01-11-01125-CR
                         ———————————
                  ELISA MERRILL WILSON, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



              On Appeal from the County Court at Law No. 2
                        Fort Bend County, Texas
                  Trial Court Case No. 10CCR149142



                                 OPINION

     The State prosecuted Elisa Wilson for misdemeanor telephonic harassment

of her former neighbor, Nicole Bailey. See TEX. PENAL CODE ANN. § 42.07(a)(4)
(West 2011). A jury found Wilson guilty, and the trial court assessed punishment

of 180 days in jail, probated for twelve months.

      On appeal, Wilson complains that the evidence does not support the jury’s

finding that she made repeated telephone calls that were reasonably likely to annoy

another, as required under the statute, because the calls that she made were neither

repeated nor annoying, offensive, embarrassing, or abusive. We reverse and render

a judgment of acquittal.

                                   Background

      Bailey moved into a Fort Bend County subdivision in 2000. She became

acquainted with her neighbors, Adam and Stephanie Ballard, as well as Wilson and

her husband. The neighbors became friends and socialized frequently. By late

2005, however, both Stephanie Ballard and Bailey’s relationships with Wilson had

become strained. By 2009, they had become acrimonious.

      The information against Wilson charged that, “on or about April 6, 2009

thr[ough] March 3, 2010, [Wilson] did then and there, with intent to harass, annoy,

alarm, abuse, torment or embarrass Nicole Bailey, make repeated telephone

communications to Nicole Bailey in a manner reasonably likely to harass or annoy

or alarm or abuse or torment or embarrass or offend the said Nicole Bailey.” The

jury heard evidence that Wilson left six telephone messages for Bailey, on April 6,



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2009, June 11, 2009, August 31, 2009, September 5, 2009, December 23, 2009,

and February 5, 2010. In these messages, Wilson:

      • said that she saw a dog in her yard that looked like the Ballards’ dog and
        asked Bailey to let them know that Adam could come pick it up if they
        were missing their dog.

      • told Bailey that she did not want Bailey to talk to her or approach her in
        public ever again.

      • referred to an incident that occurred on August 30, 2009, in which
        Wilson followed Bailey through a grocery store screaming at her; Wilson
        said that she was caught off guard and thought “it was an attack,” and
        stated that she was calling to say she was sorry.

      • complained that the work Bailey was having done on her driveway was
        against the deed restrictions.

      • told Bailey that she saw what looked like cement debris from the
        driveway job that needed to be cleaned up, and that she was asking her
        “nicely this time.”

      • reminded Bailey that Wilson had surveillance cameras, told Bailey that
        she could “come pick up her newspaper,” and warned Bailey to leave her
        alone and not “accost” or “harass” her any more.

Wilson left all of the voicemail messages in the afternoon or early evening. Bailey

did not respond to any of them.




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                             Evidentiary Sufficiency

Standard of review

      We review evidentiary sufficiency challenges under the Jackson standard.

See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (“[T]he Jackson

v. Virginia legal-sufficiency standard is the only standard that a reviewing court

should apply in determining whether the evidence is sufficient to support each

element of a criminal offense that the State is required to prove beyond a

reasonable doubt.”) (referring to Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781

(1979)). Under 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).

      Viewed in the light most favorable to the verdict, the evidence is insufficient

when either: (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 Laster, 275 S.W.3d at 518. This standard

applies equally to both direct and circumstantial evidence. King v. State, 895


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S.W.2d 701, 703 (Tex. Crim. App. 1995); Ervin v. State, 331 S.W.3d 49, 55 (Tex.

App.—Houston [1st Dist.] 2010, pet. ref’d).

      We do not weigh any evidence or evaluate the credibility of any witnesses,

as this was the function of the fact finder. Williams, 235 S.W.3d at 750. Instead, we

determine whether both the explicit and implicit findings of the fact finder are

rational by viewing all the evidence admitted at trial in the light most favorable to

the verdict and resolving any inconsistencies in the evidence in favor of the

verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992).

Telephonic harassment

      “A person commits [the offense of harassment] if, with intent to harass,

annoy, alarm, abuse, torment, or embarrass another, he 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). The

jury heard evidence of the neighbors’ acrimonious relationship, but the mere act of

“making repeated telephone calls is not, by its nature, criminal, nor is it a criminal

act merely because of the circumstances during which it is conducted.” Blount v.

State, 961 S.W.2d 282, 284 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d).

      Rather, “the Legislature intended the phrase ‘repeated telephone

communications’ to mean ‘more than one telephone call in close enough proximity

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to properly be termed a single episode,’ because it is the frequent repetition of

harassing telephone calls that makes them intolerable and justifies their criminal

prohibition.” Scott v. State, 322 S.W.3d 662, 669 n.12 (Tex. Crim. App. 2010). In

contrast to actionable “repeated telephone communications,” the telephone

harassment statute does not support a criminal conviction when the defendant’s

calls to the complainant are “separated by periods of months or years.” United

States v. Darsey, 342 F. Supp. 311, 313 (E.D. Pa. 1972); see also Brumit v. State,

No. 05-92-02325-CR, 1994 WL 370106, at *6 (Tex. App.—Dallas July 13, 1994)

(not designated for publication) (looking to common usage of the word “repeated,”

as meaning “done, made, or said again and again”) (quoting WEBSTER’S

ENCYCLOPEDIC UNABRIDGED DICTIONARY 1216 (1989)). Cf. FTC Staff

Commentary on the Fair Debt Collection Practices Act, 53 Fed. Reg. 50097–02,

50105 (Dec. 13, 1988) (defining “repeatedly” as “calling with excessive frequency

under the circumstances”). “The statutory subsection, by its plain text, is directed

only at persons who, with the specific intent to inflict emotional distress,

repeatedly use the telephone to invade another person’s personal privacy and do so

in a manner reasonably likely to inflict emotional distress.” Scott, 322 S.W.3d at

669–70.




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Analysis

      Wilson left just two of the six messages over a thirty-day period—on August

31, 2009 and September 5, 2009. Both specifically related to Bailey’s driveway

construction project. In the second message, Wilson reported that she saw cement

in the gutters that needed to be cleaned up. Bailey testified that a mixture of dust

from the cement and water was running down the gutter, and that she and her crew

cleaned it. Even if the August 31 and September 5 calls occurred “in close enough

proximity to properly be termed a single episode,” Bailey’s own testimony

acknowledged a legitimate reason for the September 5th call, which negates any

reasonable inference that Wilson left the message with the intent to harass Bailey,

or that it was made in a manner reasonably likely to harass or annoy her. See

Blount, 961 S.W.2d at 284 (noting that “culpability is required as to the result of

the conduct,” by showing that actor wants to cause the result of harassing or

annoying his victim).

      The four remaining messages occurred too far apart over the ten-month

period to be considered “part of a single episode.” Cf. id. (“Although two calls in

one night and two calls sometime during the month before are not many calls,

under the legal sufficiency standard, we find there is sufficient evidence to support

the finding of repeated calls.”). Considering the evidence in the light most

favorable to the verdict, we hold that no rational fact finder could have found

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beyond a reasonable doubt that Wilson made repeated telephone communications

with the intent to harass Bailey. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.

                                    Conclusion

      We hold that legally sufficient evidence does not support Wilson’s

conviction for telephonic harassment. We therefore reverse the trial court’s

judgment and render a judgment of acquittal.




                                              Jane Bland
                                              Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




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