                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-15-00369-CR


ROGER FOUNTAIN                                                       APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. F-2012-0345-E

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      Appellant Roger Fountain appeals his conviction for tampering with a

witness. The trial court found Fountain guilty following a bench trial and, after a

punishment hearing, sentenced him to two years’ confinement in the state-jail

division of the Texas Department of Corrections, probated for two years, and


      1
       See Tex. R. App. P. 47.4.
imposed 180 days’ confinement in the Denton County jail as a condition of

probation. In two issues, Fountain argues that the trial court erred by failing to

grant his motion for directed verdict at the conclusion of the State’s case-in-chief.

We will affirm.

                            II. FACTUAL BACKGROUND

      On July 9, 2011, Fountain and his family hosted a birthday party for

Fountain’s daughter at Hawaiian Falls waterpark in The Colony. Evan Barnett,

the regional manager of Hawaiian Falls, testified that near the end of the day on

July 9, 2011, a “guest concern” was brought to his attention:          a guest was

treating a Hawaiian Falls “birthday host” in a derogatory manner.            Barnett

testified that he saw the manager on duty, Ryan Forshen, attempting to speak

with Fountain.    Fountain appeared “very angry” and “hostile.”       Fountain was

yelling and threatening Forshen. Fountain then “stormed off.” Forshen called the

police, and the police issued Fountain a citation for disorderly conduct.

      Subsequently, Barnett received from Fountain a four-page, single-spaced

letter dated July 10, 2011.    The letter included a detailed description of the

events that had occurred at Hawaiian Falls on July 9, 2011, from Fountain’s

perspective. Ultimately, the letter demanded that Hawaiian Falls pay Fountain

“damages in the amount of $3750.00,” which included a “refund for the park

rental, loss of our birthday cake, aggravation, the injury caused by your

waterslide, public humiliation and embarrassment, legal fees associated with a

false report to the police department by your employees[], and trial for the


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Disorderly Conduct citation as well as the fine of $500, if needed.” Fountain’s

letter states,

              I was advised by the police officer who issued the citation that
       the employees would have to go to the police station and sign some
       paperwork to decide if the ticket would be pursued in a court of law.
       In the event that there is no pursuit of such violation, you may
       subtract $1500.00 (my attorneys’ fees and the possible maximum
       amount of the court fine[)]. In the event that the legal action stated
       in the above paragraph is not pursued and no attorney is needed for
       my defense, I would reduce the above sum by $1500.00 for the total
       sum of $2250.00, as settlement in full for this incident. . . .

              Now, unfortunately like all good legal demand letters, there
       has to be a paragraph filled with consequences and penalties for
       your failure to comply with my request. Here is what will happen if
       you ignore me or fail to respond in a manner to which we may settle
       this issue.

Fountain’s letter then sets forth multiple paragraphs of “consequences” he

intended to inflict if his demands were not met. Fountain stated that he had

previously “forced a Fortune 500 to hire one of the largest, most expensive law

firms in Dallas to represent them, spend over $250,000 in legal fees, caused

literally tens of millions of dollars in other ‘other damages[,]’ and forced them to

settle within a matter of months.” Fountain stated that he would attack Hawaiian

Falls in a multitude of social-media forums, would contact Hawaiian Falls’s

corporate business partners, would file online complaints with the Better

Business Bureau and others, would take legal action against Hawaiian Falls—

“this will cost you hourly attorneys’ fees[] as well as other fees like when I

subpoena half of your staff that worked that day”—and would then “start the next

phase which is protesting in front of your location.” Fountain said that he would


                                         3
“stand[] on the sidewalk in front of [their] business with a megaphone and large

professionally produced signs that state such things as ‘My 8 year old was

injured on a defective, dangerous waterslide!’[] and, ‘My family was verbally

attacked and threatened by a HF employee.’” So as not to leave any doubt

about his intentions, Fountain explained, “My intentions are to prevent any new

or existing business, tell my story to as many people as possible, any way

possible and start a costly legal battle.”

      When Hawaiian Falls did not meet Fountain’s demands within the five-day

deadline Fountain set in his letter, Fountain began to take the actions outlined in

his letter. Fountain showed up at the waterpark on several dates and began

videotaping guests. The first day, Barnett observed Fountain following people

with his video camera in the parking lot. Barnett testified that Fountain’s behavior

escalated from there; Fountain told Barnett he would be sorry if he did not

comply with Fountain’s demands because Fountain was “going to make it

worse.” Barnett testified that Fountain then started setting up a camera on a

tripod at the entrance to the waterpark, photographing guests as they entered the

park. Fountain placed signs at the entrance to the waterpark—one side of the

sign contained a picture of Forshen, and the other side stated that the waterpark

hired child molesters. Fountain wore a wig and photographed guests as they

passed the signs. As a result of Fountain’s actions, both the waterpark and its

guests called the police several times.




                                             4
      Lieutenant Darren Brockway with The Colony Police Department met with

Barnett in August 2011 because Hawaiian Falls wanted to press charges against

Fountain.   Lieutenant Brockway impounded Fountain’s July 10, 2011 letter,

confirmed that the letter was from Fountain, and filed a case against him for

tampering with a witness.

            III. DENIAL OF MOTION FOR DIRECTED VERDICT WAS PROPER

      In his first and second issues, Fountain complains that the trial court erred

when it refused to grant a directed verdict at the conclusion of the State’s case-

in-chief because insufficient evidence exists of the coercion element of the

offense and because insufficient evidence exists that Barnett was a prospective

witness.

                             A. Standard of Review

      A challenge to the denial of a directed verdict is a challenge to the

sufficiency of the evidence. See Canales v. State, 98 S.W.3d 690, 693 (Tex.

Crim. App.), cert. denied, 540 U.S. 1051 (2003). In our due-process review of

the sufficiency of the evidence to support a conviction, we view all of the

evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

2789 (1979). This standard gives full play to the responsibility of the trier of fact

to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Id., 99 S. Ct. at 2789;


                                         5
Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct.

198 (2015). The standard of review is the same for direct and circumstantial

evidence cases; circumstantial evidence is as probative as direct evidence in

establishing guilt. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014);

Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).

      To determine whether the State has met its burden under Jackson to prove

a defendant’s guilt beyond a reasonable doubt, we compare the elements of the

crime as defined by the hypothetically correct jury charge to the evidence

adduced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014); see

Crabtree v. State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential

elements of the crime are determined by state law.”). Such a charge is one that

accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or restrict the State’s theories

of liability, and adequately describes the particular offense for which the

defendant was tried. Thomas, 444 S.W.3d at 8. The law as authorized by the

indictment means the statutory elements of the charged offense as modified by

the factual details and legal theories contained in the charging instrument. See

id.; see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When

the State pleads a specific element of a penal offense that has statutory

alternatives for that element, the sufficiency of the evidence will be measured by

the element that was actually pleaded, and not any alternative statutory

elements.”).


                                        6
                                B. Applicable Law

      A person commits an offense of tampering with a witness if, with intent to

influence the witness, he offers, confers, or agrees to confer any benefit on a

witness or prospective witness in an official proceeding, or he coerces a witness

or a prospective witness in an official proceeding to do the following: (1) testify

falsely; (2) withhold any testimony, information, document, or thing; (3) to elude

legal process summoning him to testify or supply evidence; (4) to absent himself

from an official proceeding to which he has been legally summoned; or (5) to

abstain from, discontinue, or delay the prosecution of another. Tex. Penal Code

Ann. § 36.05(a) (West Supp. 2015); see also Uyamadu v. State, 359 S.W.3d

753, 763 (Tex. App.––Houston [14th Dist.] 2011, pet. ref’d) (discussing

application of statute to potential State’s witness).

      The penal code does not define “coerces”; it does, however, define

“coercion” as including a threat, however communicated, to expose a person to

hatred, contempt, or ridicule or to harm the credit or business repute of any

person. Tex. Penal Code Ann. § 1.07(a)(9)(D), (E) (West Supp. 2015). “Official

proceeding” means any type of administrative, executive, legislative, or judicial

proceeding that may be conducted before a public servant. Id. § 1.07(a)(33).

“Person” is defined as “an individual, corporation, or association.”            Id.

§ 1.07(a)(38).




                                          7
                            C. Sufficiency Analysis

      The State indicted Fountain under the coerces-a-witness portion of the

witness-tampering statute, alleging that Fountain had coerced Barnett—a witness

or a prospective witness in an official proceeding—to abstain from, discontinue,

or delay the prosecution of another. See id. § 36.05(a)(5). Thus, a hypothetically

correct jury charge in this case would state that Fountain is guilty of tampering

with a witness, as alleged in the indictment, if (1) Barnett was a witness or a

prospective witness in an official proceeding and (2) Fountain, with the intent to

influence Barnett, coerced him to abstain from, discontinue, or delay the

prosecution of another. See id.

 1. Barnett is a witness or a prospective witness in an official proceeding

      In his second issue, Fountain argues that Barnett does not qualify as “a

witness or a prospective witness” because Barnett “did not witness any disorderly

conduct and was merely present at the facility[,] only coming out of his office to

witness [Fountain] leaving.” Fountain further argues that Barnett does not qualify

as “a witness or a prospective witness” because the State offered “no direct proof

of any disorderly conduct proceeding or any civil lawsuit for Mr. Barnett to

participate in as a witness or a prospective witness.”

      A “prospective witness” is any “person who may testify in an official

proceeding”; any person who is involved in an offense with a defendant, who

sees the defendant committing an offense, or who hears the defendant discuss

committing an offense is a “prospective witness” in the prosecution of that


                                         8
defendant because he “may” testify. Ortiz v. State, 93 S.W.3d 79, 86 (Tex. Crim.

App. 2002) (addressing sufficiency of evidence to prove “prospective witness”

element of retaliation offense under penal code section 36.06(a)(1)(A)), cert.

denied, 538 U.S. 998 (2003); see also id. at 95–96 (Keller, J., concurring)

(explaining term “prospective witness” has the same meaning under the

retaliation statute and under the tampering-with-a-witness statute). Whether a

person will eventually testify does not affect whether he is, before trial, a

prospective witness. Ortiz, 93 S.W.3d at 86.

      Contrary to Fountain’s assertion that Barnett did not witness any disorderly

conduct, Barnett testified that on July 9, 2011, he did observe Fountain’s

behavior and did hear the words yelled by Fountain that formed the basis of the

disorderly-conduct citation issued to Fountain.       And contrary to Fountain’s

assertion, the State did offer direct evidence of an “official proceeding.” Barnett’s

testimony and Fountain’s letter conclusively established that police had issued a

disorderly-conduct citation to Fountain; no requirement exists that the State

prove a prosecution or a disposition concerning the citation to meet the definition

of “official proceeding.”   See Tex. Penal Code Ann. § 1.07(a)(33) (defining

“official proceeding” as including “any type of . . . judicial proceeding that may be

conducted before a public servant”) (emphasis added); Nzewi v. State, 359

S.W.3d 829, 833 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (“[T]he

witness-tampering statute is not limited to witnesses or prospective witnesses

who may be called by the State to give testimony during criminal trials.”); see


                                         9
also Tex. Penal Code Ann. § 1.05(a) (West 2011) (mandating that penal-code

provisions “shall be construed according to the fair import of their terms”). Thus,

viewed in the light most favorable to the judgment, a rational trier of fact could

have found beyond a reasonable doubt that Barnett was a witness or a

prospective witness in an “official proceeding”—Fountain’s prosecution for

disorderly conduct. See Ortiz, 93 S.W.3d at 86; Uyamadu, 359 S.W.3d at 763–

64. We overrule Fountain’s second issue.

                         2. Fountain coerced Barnett

      In his first issue, Fountain challenges the sufficiency of the evidence to

establish the coercion element of the offense of tampering with a witness.

Fountain claims that no evidence exists that he coerced Barnett.

      “Coercion” is defined as a threat to expose a person to hatred, contempt,

or ridicule or a threat to harm the credit or business repute of any person. See

Tex. Penal Code Ann. § 1.07(a)(9)(D), (E).       And “person” is defined as “an

individual, corporation, or association.” Id. § 1.07(a)(38). Fountain’s “demand

letter” to Barnett that specifically offers to reduce the amount of money

demanded by Fountain—“[i]n the event that there is no pursuit of [the disorderly-

conduct] violation, you may subtract $1500.00 [from the monies demanded by

Fountain]”—and that specifically threatens to make all efforts possible to damage

the business and reputation of Hawaiian Falls—“[m]y intentions are to prevent

any new or existing business, tell my story to as many people as possible, any

way possible and start a costly legal battle”—constitutes evidence that Fountain


                                        10
coerced Barnett.    See, e.g., Lujan v. State, No. 03-02-00691-CR, 2004 WL

334516, at *4–5 (Tex. App.—Austin Feb. 12, 2004, pet. ref’d) (mem. op., not

designated for publication) (holding defendant’s letter to minor victim’s mother—

who was defendant’s ex-wife and also mother of two of defendant’s children—

offering to settle victim’s sexual-assault claims against him and detailing bevy of

financial hardships that would befall defendant and the couple’s children if

assault case was not settled, constituted sufficient evidence of coercion under

witness-tampering statute); Johnson v. State, No. 14-03-00412-CR, 2003 WL

22908207, at *2–4 (Tex. App.—Houston [14th Dist.] Dec. 11, 2003, no pet.)

(mem. op., not designated for publication) (holding, after workplace incident

resulting in issuance of misdemeanor assault citation to defendant, that

defendant’s offer to pay victim $300 to drop the charge constituted sufficient

evidence of coercion under witness-tampering statute). That is, by threatening to

harm the business and reputation of Hawaiian Falls and by threatening to expose

Hawaiian Falls to contempt, Fountain coerced Barnett—a witness or a

prospective witness in an official proceeding (Fountain’s disorderly-conduct

prosecution)—to abstain from, discontinue, or delay the prosecution of another

(Fountain’s prosecution for disorderly conduct).2    See Tex. Penal Code Ann.

§ 36.05(a).


      2
       Fountain attempts on appeal to classify his letter to Barnett as a “civil
demand letter” protected by the First Amendment. To the extent Fountain’s letter
proposes settlement of civil claims, his characterization of it may be correct. But
to the extent Fountain’s letter requests that no action be taken by Barnett and

                                        11
      Viewed in the light most favorable to the judgment, a rational trier of fact

could have found beyond a reasonable doubt that Fountain, with the intent to

influence Barnett, coerced Barnett by threatening to expose Hawaiian Falls to

contempt by threatening to harm the business or reputation of Hawaiian Falls if

Barnett did not abstain from or discontinue prosecution of Fountain’s disorderly-

conduct charge. See Tex. Penal Code Ann. §§ 1.07(a)(9)(D), (E), 36.05(a)(5);

see also Lujan, 2004 WL 334516, at *4–5; Johnson, 2003 WL 22908207, at *2–4;

cf. Roberts v. State, 278 S.W.3d 778, 793–94 (Tex. App.—San Antonio 2008,

pet. ref’d) (holding evidence of coercion sufficient to support conviction for

unlawful appropriation of property without consent by coercion). We overrule

Fountain’s first issue.

                                 IV. CONCLUSION

      Having overruled Fountain’s two issues, we affirm the trial court’s

judgment.

                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER, J.; and FITZGERALD, J. (Senior Justice,
Retired, Sitting by Assignment).


Hawaiian Falls to pursue the disorderly-conduct citation Fountain received and to
the extent Fountain offers to accept a reduced settlement dollar amount if Barnett
and Hawaiian Falls do not pursue the disorderly conduct violation, the letter is not
a “civil demand letter.” Instead, it is the type of criminal nonprosecution demand
letter that other courts have found violates the witness-tampering statute. See
Lujan, 2004 WL 334516, at *4–5; Johnson, 2003 WL 22908207, at *2–4.


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DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 28, 2016




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