      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


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                                         ON REMAND
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                                     NO. 03-04-00077-CR




                            David Carrol Gillenwaters, Appellant

                                                v.

                                 The State of Texas, Appellee



         FROM THE COUNTY COURT AT LAW NO. 2 OF WILLIAMSON COUNTY
         NO. 03-1082-2, HONORABLE TIMOTHY L. WRIGHT, JUDGE PRESIDING



                           MEMORANDUM OPINION


               A jury convicted appellant David Carrol Gillenwaters of telephone harassment, and

the court assessed punishment at ten days’ incarceration and a $250 fine. See Tex. Penal Code Ann.

§ 42.07(a)(4) (West 2003). The Court affirmed the judgment of conviction on original submission.

Gillenwaters v. State, No. 03-04-00077-CR, 2005 Tex. App. LEXIS 5510 (Tex. App.—Austin July

13, 2005) (mem. op., not designated for publication). The court of criminal appeals granted

appellant’s petition for discretionary review, vacated our judgment, and remanded the cause for

reconsideration of appellant’s fourth point of error. Gillenwaters v. State, 205 S.W.3d 534, 538

(Tex. Crim. App. 2006).       By this point, appellant contends that section 42.07(a)(4) is
unconstitutionally vague as applied to him. We will overrule this contention and reaffirm the

conviction.1

                It is a basic principle of due process that an enactment is void for vagueness if its

prohibitions are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). A

criminal law must be sufficiently clear in at least three respects: (1) a person of ordinary intelligence

must be given a reasonable opportunity to know what is prohibited; (2) the law must establish

determinate guidelines for law enforcement; and (3) if First Amendment freedoms are implicated,

the law must be sufficiently definite to avoid chilling protected expression. Id. at 108-09; Long

v. State, 931 S.W.2d 285, 287 (Tex. Crim. App. 1996).

                The information in this cause alleged that appellant, with intent to harass, annoy,

alarm, abuse, torment, and embarrass Linda Ortiz, made repeated telephone communications to Ortiz

in a manner reasonably likely to harass, alarm, abuse, torment, embarrass, and offend Ortiz. See

Tex. Penal Code Ann. § 42.07(a)(4). In our original opinion, we summarized the pertinent

facts as follows:


               Gillenwaters met Ortiz at an Austin area Wal-Mart where they both worked.
        They married in 2000, but, after Gillenwaters was fired in 2001, their relationship
        began to deteriorate. Ortiz filed for divorce in July 2002.

               On the morning of October 22, 2002, Gillenwaters approached Ortiz in the
        Wal-Mart parking lot and began yelling loudly and cursing at her. Ortiz had to be
        escorted into the building by a male coworker. Gillenwaters began calling the Wal-
        Mart thirty minutes later. Afraid to speak to Gillenwaters, Ortiz had her coworkers
        continue to tell him that she was not available. However, Gillenwaters continued to


   1
     Appellant’s three other points of error challenged the legal sufficiency of the evidence and the
facial constitutionality of section 42.07(a)(4). We overruled these contentions on original
submission, and these rulings were not disturbed by the court of criminal appeals.

                                                   2
       call the Wal-Mart from five that morning until around one that afternoon. Although
       he was repeatedly asked to stop calling, Gillenwaters called about forty times an hour
       looking for Ortiz. Appellant’s repeated calls made Ortiz so upset that she could not
       perform her duties at work. After one of her coworkers dialed 911, Ortiz complained
       to the police about receiving the calls. When Ortiz arrived home, she discovered that
       Gillenwaters also had left ten messages on her home answering machine. In one
       message, Gillenwaters stated: “A lot of people are getting ready to get hurt. You
       forget that I know tons of people. They’re getting ready to go to work at 9 o’clock
       tomorrow morning, if I don’t get a phone call from you to call it off, then lives are
       going to be ruined. . . . I’ll take ‘em all down.” Gillenwaters also threatened: “I’m
       going to bury your ass,” “You don’t understand what you’re doing,” “[Y]ou bit off
       more than you can chew,” and “I’m gonna press it and I’m gonna kill it.”


Gillenwaters, 2005 Tex. App. LEXIS 5510, at *1-3.

               Following remand, we permitted appellant to file a supplemental brief more fully

arguing his fourth point of error. The State chose not to respond. We will address each of

appellant’s arguments as presented in the supplemental brief.


“A. Because the term ‘communication’ includes circumstances where two people never
converse, the statute is unconstitutional as applied.”

               In rejecting appellant’s challenge to the sufficiency of the evidence, we held that it

was not necessary for him to speak directly to Ortiz in order to communicate with her within the

meaning of section 42.07(a)(4). Id. at *8-9. Instead, appellant communicated with Ortiz by leaving

messages with her coworkers and on her answering machine. Id. Appellant argues that he could not

have reasonably anticipated such an application of the statute. He asserts that he “urgently needed

to speak with Ortiz.” He asks, “Can his repeated expression of an urgent desire to speak under these

circumstances validly constitute a crime in a free society?” He concludes that the application of the

telephone harassment statute to his conduct chills free speech by criminalizing “the mere act of

repeatedly seeking to speak to a person.”

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               Contrary to appellant’s argument, he did not merely make repeated efforts to speak

to Ortiz for some urgent and legitimate reason. Instead, he made up to forty telephone calls an hour

for eight hours to Ortiz’s place of employment asking to speak to her. In addition, he left at least ten

messages on Ortiz’s home telephone answering machine, some of them threatening violence. As

we held on original submission, the evidence supports the jury’s finding that appellant made these

telephone calls with the intent to harass and offend Ortiz. Id. at *7-8. Harassment is not protected

speech, and making repeated telephone calls with the intent to annoy or harass another is not conduct

protected by the First Amendment. Id. at *12. A person of ordinary intelligence would understand

that the conduct proved in this case—especially the threatening messages on Ortiz’s answering

machine—fell within the scope of article 42.07(a)(4)’s prohibition of harassing, annoying,

embarrassing, and abusive telephone communications.


“B. A request to speak to a person is not a communication which becomes criminal merely
because it is repeated.”

               Appellant argues that he “had every right both to seek to speak with Ortiz and every

right to convey the urgency with which he needed to converse.” Appellant contends that he was

never told that Ortiz did not wish to speak to him, which effectively encouraged him to continue

calling. He asserts that “asking to speak with another about urgent personal matters does not become

criminally unreasonable by repetition.”

               This argument is essentially a challenge to the sufficiency of the evidence, an issue

that was decided on original submission and is not before us on remand. Although appellant may

have had other reasons for repeatedly calling Ortiz as he did, there was ample evidence to support

the jury’s finding that he intended to harass and offend Ortiz. We find nothing in this argument to

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support appellant’s contention that section 42.07(a)(4) is unconstitutionally vague as applied

to his conduct.


“C. The provision making the manner of communication criminal if a likelihood exists that
it may inspire Ortiz with the requisite litany of emotional states is unconstitutionally vague as
applied in this case.”

                  Appellant argues that section 42.07(a)(4) is unconstitutionally vague because it bases

criminality on the likelihood of offending a particular person, in this case Ortiz. According to

appellant, the statute required him to accurately anticipate Ortiz’s reaction to his telephone calls. He

urges that a person of ordinary intelligence cannot accurately guess the emotional state of another

person to whom he makes a telephone call.

                  This argument is directed more to the facial constitutionality of section 42.07(a)(4)

than to its constitutionality as applied to appellant. As we held on original submission, the statute

employs a reasonable person standard. That is, the State must prove that the defendant’s conduct

would annoy or harass a reasonable person rather than the specific recipient. Id. at *16-17.

Appellant was not found guilty because his conduct offended Ortiz, but because his telephone

communications to Ortiz were of the sort likely to harass or offend any reasonable person.


“D. The application of this statute inserts the very subjectivity that made the previous statute
facially unconstitutional.”

                  This is a restatement of appellant’s previous argument. Contrary to appellant’s

assertion, his guilt in this case did not depend on Ortiz’s subjective feelings, or her personal reaction

to his telephone calls. Id.




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“E. The application of the statutory provision to this case prohibits messages of urgency,
contrary to the First and Fourteenth Amendments.”

               Appellant argues that when a caller has an urgent message, there is no better way to

convey the urgency than to call repeatedly. In such circumstances, the caller may even intend to

annoy, harass, and alarm so that his message will be delivered. Appellant further argues that the

First Amendment protects speech intended to provoke or annoy others.

               Once again, this argument is essentially a facial challenge to the statute. As noted

above, we held on original submission that section 42.07(a)(4) does not implicate conduct protected

by the First Amendment. Id. at *12. Appellant makes no showing that his conduct in this case was

entitled to First Amendment protection.

               Finding appellant’s arguments to be without merit, we overrule point of error four and

affirm the judgment of conviction.



                                              __________________________________________

                                              David Puryear, Justice

Before Chief Justice Law, Justices Puryear and Pemberton

Affirmed on Remand

Filed: October 25, 2007

Do Not Publish




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