       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00427-CR



                                     Daniel O’Dell, Appellant

                                                  v.

                                   The State of Texas, Appellee




             FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY
             NO. 636993, HONORABLE J. F. CLAWSON, JR., JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found appellant Daniel O’Dell guilty of harassment. See Tex. Pen. Code Ann.

§ 42.07 (West 2003). The trial court assessed punishment at 180 days’ incarceration and a $2000

fine, suspended imposition of sentence, and placed appellant on community supervision. Appellant

brings forward seven points of error: (1) section 42.07 is facially unconstitutional; (2) he was denied

due process during pretrial proceedings; (3) he was denied his right to call witnesses; (4) he was

denied the right to present evidence in his defense; (5) his motion to recuse was erroneously denied,

and he was unlawfully held in contempt; (6) “relative standards” were not followed during trial; and

(7) the punishment phase of trial was unlawfully conducted. We overrule these points of error and

affirm the conviction.1


   1
      Appellant represented himself at trial with the assistance of standby counsel and continues to
represent himself on appeal. Appellant’s brief does not comply with the appellate rules in numerous
                                            Background

                 Appellant suffered workplace injuries in 1997. Subsequently, appellant engaged in

a running battle with his employer’s insurer, the Texas Worker’s Compensation Commission, and

the Texas Rehabilitation Commission (TRC).2 On May 15, 2003, a hearing officer appointed to

resolve certain disputes between appellant and the TRC issued an order denying most of appellant’s

demands. That same day, appellant made a series of telephone calls to the TRC that constitute the

primary basis of this prosecution.

                 The information alleged that appellant:


        with the intent to harass, annoy, alarm, abuse, torment, and embarrass another, to wit:
        the Texas Rehabilitation Commission (“TRC”), a government agency, made repeated
        telephone communications in a manner reasonably likely to harass, annoy, alarm,
        abuse, torment, embarrass, and offend another, to wit:

             •    on May 15, 2003, the defendant called the TRC and spoke with employee
                  Laura York and called her a “lying piece of filth,”

             •    on May 15, 2003, the defendant called the TRC and spoke with employee
                  Sarah Flores and yelled at her and referred to another employee as a “piece
                  of shit,”

             •    on May 15, 2003, the defendant called the TRC and spoke with employee
                  Yvonne Garcia-Fuentes and yelled profanity including the phrase “you sons
                  of bitches,”




respects, including its length (183 pages) and its failure to contain clear and concise arguments, with
appropriate citations to authorities and to the record. See Tex. R. App. P. 38.1(g), 38.4. Our
consideration of this appeal has been facilitated by the comprehensive responsive brief filed by
counsel for the State.
   2
       We refer to these agencies by their names during most of the time in question.

                                                  2
            •    on May 15, 2003, the defendant called the TRC and spoke with employee
                 Tony Lawrence and yelled profanity including the phrase “fuck your mother,”

            •    on May 15, 2003, the defendant called the TRC and spoke with employee
                 Maria Rutledge and called her a “damn piece of filth,”

            •    on May 15, 2003, the defendant called the TRC and left a voice mail
                 message for employee Barbara Bearden referred to other employees as a
                 “lying piece of filth” and a “lying piece of filthy trash,”

            •    on May 23, 2003, the defendant called the TRC and spoke with employee
                 Sylvia Hardeman and referred to her as “you piece of filth trash.”


See id. § 42.07(a)(4). There is not a point of error challenging the sufficiency of the evidence to

support the jury’s finding of guilt.


                                       Constitutionality of Statute

                In his first point of error, appellant contends that section 42.07(a)(4) is

unconstitutionally vague. He cites May v. State, 765 S.W.2d 438 (Tex. Crim. App. 1989), and Long

v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996), in support of this contention. May held that an

earlier version of the harassment statute was unconstitutionally vague. 765 S.W.2d at 440. In Long,

the court of criminal appeals also upheld a vagueness challenge to the stalking provision found in

a subsequent version of section 42.07. 931 S.W.2d at 297.3 Neither May nor Long speaks to the

constitutionality of section 42.07(a)(4) as it reads now and in 2003.

                Two courts of appeals have rejected vagueness challenges to section 42.07(a)(4) as

it now reads. DeWillis v. State, 951 S.W.2d 212, 217 (Tex. App.—Houston [14th Dist.] 1997, no


   3
     Stalking is now the subject of a separate statute. See Tex. Pen. Code Ann. § 42.072 (West
2003).

                                                    3
pet.); Bader v. State, 773 S.W.2d 769, 770 (Tex. App.—Corpus Christi 1989, pet. ref’d). In Bader,

the court held that the defects identified in May had been cured by subsequent amendments to the

statute. 773 S.W.2d at 770. In DeWillis, the court reached the same conclusion after a thorough

survey of the pertinent authorities. 951 S.W.2d at 217. We agree with the reasoning of these

opinions. We hold that section 42.07(a)(4) is not unconstitutionally vague on its face and overrule

point of error one.


                                        Pretrial Due Process

               In point of error two, appellant asserts that he was “abused by [the] prosecution time

and again” prior to trial. He lists five specific violations of his due process rights: (1) denial of a

speedy trial; (2) inadequate notice of the allegations against him; (3) denial of confrontation; (4)

denial of compulsory process; and (5) denial of counsel.

               Speedy trial. We find no indication that appellant raised the speedy trial issue below.

See Dunn v. State, 819 S.W.2d 510, 526 (Tex. Crim. App. 1991). Appellant’s trial began one year

after the original information was filed. During that year, appellant filed voluminous pretrial

motions, including at least six motions for continuance, that were heard during seven pretrial

hearings. Appellant last moved for a continuance on the day trial began. Appellant’s claim that he

was denied a speedy trial is without foundation in the record. See Barker v. Wingo, 407 U.S. 514,

530 (1972); Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997).

               Notice. Appellant filed a motion to quash the information that was heard by the trial

court on June 7, 2004, two weeks before trial. Although the motion complained that the information

did not allege the offense in “plain and intelligible words,” the only argument made by appellant at

                                                  4
the hearing was his contention that section 42.07 is unconstitutional. We find no basis for

concluding that appellant was denied adequate notice.

               Confrontation and compulsory process. Appellant does not refer us to any pretrial

proceeding in which he was denied the right to confront witnesses against him or denied compulsory

process for the attendance of witnesses. The State calls our attention to appellant’s pretrial “demand

for ancillary proceedings” in which he asked to depose two persons said to have his medical records.

When this motion was taken up at a pretrial hearing on May 5, 2004, appellant advised the court that

it was moot. No violation of appellant’s confrontation and compulsory process rights is shown to

have occurred during pretrial proceedings.

               Denial of counsel. The record reflects that appellant voluntarily elected to represent

himself, although standby counsel was appointed to provide assistance upon request. We are not

referred to any instance in which appellant was denied assistance by counsel.

               Point of error two is overruled.


                                Witnesses and Defensive Evidence

               In point of error three, appellant again urges that he was denied his Sixth Amendment

right to call witnesses in his own behalf. In point four, he contends that he was denied the right to

present evidence in his defense. Appellant’s argument under these points is that he was denied

adequate discovery.

               On February 20, 2004, appellant requested that subpoenas and subpoenas duces tecum

be issued for 119 persons, including the President of the United States, the Attorney General of the

United States, the Attorney General of Texas, numerous federal and state judges, and other public

                                                  5
officials. Apparently, appellant believed that these persons had personal knowledge and access to

documents proving that he had been wronged by the TRC. The State moved to quash the subpoenas

and sought an order requiring appellant to obtain leave of court before requesting subpoenas. These

motions were granted following a hearing on March 12. At a subsequent hearing on May 5, the court

explained to appellant that he should separately apply for each subpoena he wished to have issued

and describe the relevance of the testimony or document sought. Appellant indicated that he was

satisfied with this arrangement.

               Another pretrial hearing was conducted on June 7, 2004. At the hearing, appellant

acknowledged receiving discovery material from the State, but he insisted that it was incomplete.

Appellant asked the court to act on his further “request for production” and “request of evidence and

witnesses.” Included in these motions were the names of fifty-six persons appellant wished to

subpoena for trial. All of these subpoena requests were either granted by the court or withdrawn by

appellant during the hearing. The court also granted appellant’s request that the State tender to him:

the recording of the TRC appeal hearing that triggered appellant’s telephone calls that were the basis

of the prosecution; appellant’s TRC appeal case file; all TRC case notes pertaining to appellant for

March through August 2003; appellant’s TRC “contract”; appellant’s TRC “official action

statement”; and any photographs in TRC’s possession pertaining to the charged incident. The court

also authorized appellant to photograph the TRC offices and to send written interrogatories to his

subpoenaed witnesses.

               On June 21, 2004, before jury selection began, the court considered a number of

additional motions filed by appellant. Among them was a motion for continuance complaining that

appellant had not received the discovery previously ordered. Counsel for the State responded by

                                                  6
saying that appellant had received everything requested that existed. The prosecutor explained that

there were no case notes dated later than March 2003 because appellant’s TRC file had been closed,

that he had been informed that TRC had no photographs in its possession, and that there was no TRC

“contract” or “official action statement.” There was no evidence contradicting this explanation. The

motion for continuance was denied.

               Appellant makes no showing that any material evidence or witness was withheld from

him. Points of error three and four are overruled.


                                        Motion to Recuse

               Appellant’s fifth point of error raises two issues, the first of which concerns the

overruling of his motion to recuse Judge Clawson. The elected judge of the county court at law

recused herself early in the proceedings after appellant accused her of criminal misconduct and

corruption. Two other visiting judges presided over hearings before Judge Clawson was assigned

to the case.

               On May 14, 2004, appellant filed a motion to recuse Judge Clawson asserting that the

judge had a personal bias and prejudice against him and had become part of a “conspiracy of abuse,

fraud and bribery” designed to deny appellant his legal rights. The motion was not verified as

required by rule. See Tex. R. Civ. P. 18a(a). Nevertheless, the motion was referred to the presiding

administrative judge for a hearing, which was conducted on May 27. At this hearing, appellant

testified that Judge Clawson had personal knowledge of fraudulent acts committed by the previous

judge and had himself conspired with the prosecutor; complained that Judge Clawson had refused

his request to subpoena the President of the United States; and asserted that Judge Clawson “cannot



                                                 7
hear this case and allow due process of law due to his bias and his conspiracy of corruption.” The

recusal motion was denied.

               Appellant filed a second motion to recuse Judge Clawson on June 4, 2004, and a third

on June 21, 2004. Both motions were filed less than ten days before the next scheduled hearing. See

id. They contained allegations substantially identical to those made by appellant at the May 27

hearing. Both were overruled by the presiding administrative judge without a hearing.

               Given the procedural defects in the recusal motions, no error is presented. See Arnold

v. State, 853 S.W.2d 543, 544-45 (Tex. Crim. App. 1993). In any case, there is nothing in the record

that would lead us to conclude that the administrative judge erred by overruling the motions.


                                        Criminal Contempt

               The other contention made by appellant in his fifth point of error is that he was

unlawfully held in contempt. At the conclusion of appellant’s trial, the State asked the court to hold

appellant in contempt for having made groundless and false statements in his motions to recuse. See

Tex. Code Crim. Proc. Ann. art. 1.052(d) (West 2005). Following a brief hearing, the court

adjudged appellant guilty of criminal contempt and sentenced him to thirty days’ confinement, which

he suspended. This decision is not appealable, even in conjunction with the appeal of appellant’s

conviction. The validity of a contempt order can be attacked only by a writ of habeas corpus or, in

some instances, writ of mandamus. Metzger v. Sebek, 892 S.W.2d 20, 54-55 (Tex. App.—Houston

[1st Dist.] 1994, writ denied); see Kidd v. Lance, 794 S.W.2d 586, 587 n.1 (Tex. App.—Austin

1990, orig. proceeding).

               Point of error five is overruled.



                                                   8
                                       “Relative Standards”

               Appellant’s sixth point of error is that “relative standards” were not followed during

his trial. Appellant’s brief devotes seventy-three pages to this point. The State accurately describes

appellant’s argument as “veer[ing] from topic to topic without clearly identifying what legal points

he wants this Court to consider.” A substantial portion of the argument is devoted to appellant’s

complaints regarding the scope of pretrial discovery and the rulings on his motions to recuse, issues

we have already addressed. Appellant’s additional arguments do not lead us to alter our previous

holdings.

               One of the items produced for appellant before trial was the recording of his TRC

appeal hearing. On the day trial was set to begin, appellant filed a motion to have this recording

examined by an expert on the ground that it “may have been tampered with.” The motion was

untimely and did not state grounds to believe that the requested examination was necessary. No error

in overruling the motion is shown. Appellant asserts that various other documents admitted in

evidence were false or altered. There is no evidence of this.

               Appellant complains that witnesses he wished to call did not appear for trial. There

is no indication, however, that appellant subpoenaed these witnesses. In addition, on the second day

of trial, appellant and the State reached an agreement by which appellant limited his subpoena list

to two persons, both of whom appeared and testified.

               Appellant complains that the State was permitted to read the information to the

panelists during voir dire. He does not cite authority holding that this was error.




                                                  9
                Appellant complains that he was not permitted to offer evidence regarding the long

history of his dealings with the TRC, alleged misconduct by TRC employees, and alleged financial

irregularities on the part of the agency. We share the trial court’s opinion that this evidence was not

relevant to any issue at appellant’s trial.

                Appellant urges that the court erred by excluding, for lack of relevance and a proper

predicate, defense exhibits seven (apparently appellant’s entire TRC case file), eight (apparently a

copy of a federal regulation), and nineteen (the nature of which is unclear from the record). These

exhibits were not made a part of the appellate record. Nothing is presented for review.

                Point of error six is overruled.


                                     Punishment and Sentencing

                In his last point of error, appellant asserts that the trial court “did not follow

applicable rules of law” during the punishment and sentencing phases of trial. Appellant argues that

the court “limited the scope of the argument,” “aggravated the facts,” and “misled the jury.” He does

not identify where or how these alleged errors occurred.

                Appellant does identify a problem that arose regarding the punishment verdict.

Appellant elected to go to the jury for punishment. The jury returned a verdict assessing 180 days

in jail and a $2000 fine. Because of an error in the verdict form, the jury recommended that the fine,

but not the term of incarceration, be probated. After a discussion, it was agreed by all parties that

appellant would withdraw his request for jury sentencing and that the court would assess a

punishment of 180 days’ incarceration and a $2000 fine, fully probated. We agree with appellant

that this was confusing, but no error or harm to him is shown. Point of error seven is overruled.

                                                   10
              The judgment of conviction is affirmed.




                                            __________________________________________

                                            Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: January 12, 2006

Do Not Publish




                                              11
