Harassment, Facebook and Repeated Communications

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After she was convicted of “the misdemeanor offense of harassment and sentenced to 180 days in jail probated for two years and a $500 fine,” Debra Hernandez appealed.  Hernandez v. State, 2013 WL 3717766 (Texas Court of Appeals – Dallas 2013). The conviction was under Texas Penal Code § 42.07; we will get back to it later.

The opinion notes that,

[p]rior to the offense, [Hernandez] was in a relationship with Christopher Guerrero. Guerrero left [her] for Gayle Kent while [she] was pregnant with his child. [Hernandez] admitted she harbored a great deal of animosity towards Guerrero and directed this animosity towards Kent.

Hernandez v. State, supra.

It also noted, prior to describing the facts in the case, notes that after Hernandez

threatened Kent with a series of profane electronic messages and annoying telephone calls, she was charged by information with harassment. The information alleged that [Hernandez], with the intent to harass, annoy, alarm, abuse, torment, and embarrass Kent, (1) caused the telephone of Kent to ring repeatedly; (2) made repeated telephone calls anonymously; (3) knowingly permitted a telephone under her control to be used by another to commit an offense; (4) threatened to inflict bodily injury on Kent by electronic communication in a manner reasonably likely to alarm Kent; and (5) sent repeated electronic communications in a manner reasonably likely to harass, annoy, torment, or offend another.

Hernandez v. State, supra.

This, according to the opinion, is what the evidence presented at trial showed:

Kent testified that over a two month period, [Hernandez] sent profane and threatening electronic messages to her on Facebook. [Hernandez] referred to Kent as a `hoe,’ and challenged Kent to `say it to [her] muther f* * * face.’ She also told Kent that `[she] don't play no f* * * games.’ 

Kent testified that the messages made her feel annoyed and threatened. [Hernandez] also published a public statement about Kent on her Facebook page that Kent described as making her feel very embarrassed, and sent a message to Guerrero, stating `[h]andle that bitch or I will. And you know I will. I'm not one to be messed with. . . .’

Kent sent [Hernandez] a message asking that she stop contacting her. [Hernandez] responded, `[y]ou know what u got urself in[to].’ Kent again requested that [Hernandez] cease contacting her and then blocked [Hernandez’s] ability to contact her on Facebook. After doing so, Kent began receiving email communications from pornographic and dating websites that she had not signed up for. Kent also began receiving anonymous calls.

On one occasion, while Kent was in class, [Hernandez] telephoned eleven times in ten minutes. The calls were such a nuisance Kent was asked to leave class. Kent answered the phone on the eleventh call and told [Hernandez] if she wanted to speak with Guerrero, she would need to call back after 5:30. Two minutes later, [Hernandez] sent Kent six text messages referring to her as a bitch and a slut and threatening to assault her. Kent stated that she was afraid[Hernandez] would try to hurt her.

[Hernandez] admitted she sent messages to Kent but claimed Kent had initiated the exchange by electronic mail. [Hernandez] introduced copies of the alleged emails but could not produce them in their original form because she cancelled the account where she had allegedly received them. 

On cross-examination, [she] admitted that portions of the text within the emails were very similar to the Facebook messages she sent. Kent testified that she had never seen the emails and did not send them.

Hernandez v. State, supra.

After hearing all the evidence presented at trial, the judge found Hernandez guilty.  Hernandez v. State, supra.

In so doing, the judge noted that he found it `a little incongruent that [Hernandez and Kent] would communicate for several months by email and then all of a sudden switch over to communicating by Facebook.’ 

The trial judge also stated, `And especially the blast that went out for the whole world to see would obviously be embarrassing, seem somewhat annoying, tormenting, et cetera. And there seems to be uncontroverted evidence that these e-mails were sent and that they had that effect. And on that basis, I find the Defendant guilty.’

Hernandez v. State, supra.

Hernandez only made one argument on appeal, i.e., that the evidence was

insufficient to support her conviction. Specifically, [Hernandez] contends that three Facebook messages and one Facebook post over a three month period is insufficient to establish a repeated electronic communication for purposes of the harassment statute.

Hernandez v. State, supra.

The Court of Appeals began its analysis of Hernandez’s argument by noting that

[w]e review the sufficiency of the evidence under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. 

In conducting a sufficiency review, we defer to the jury's role as the sole judge of the witnesses' credibility and the weight their testimony is to be afforded. . . . This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.  Jackson v. Virginia, supra. When the record supports conflicting inferences, we presume the factfinder resolved the conflicts in favor of the prosecution and defer to that determination. Jackson v. Virginia, supra.

Hernandez v. State, supra.

The court then explained that Hernandez was charged by information with violating the

harassment statute under four different theories: threatening Kent with bodily injury through electronic communications, causing Kent's telephone to ring repeatedly or making anonymous telephonic communications repeatedly, permitting another to use one's telephone to commit harassment, and repeated electronic communications.

Hernandez v. State, supra.  These charges correspond, respectively, to Texas Penal Code § 42.07(a)(2), (4), (6) & (7).  Hernandez v. State, supra.

The Court of Appeals then pointed out that “[o]nly three of these sections are at issue on appeal: Section (a)(2), threatening bodily injury by electronic communication, Section (a)(4), causing the telephone of another to ring repeatedly, and Section (a)(7), sending repeated electronic communications.”  Hernandez v. State, supra.  As to the § 42.07(a)(6) charge, the prosecution conceded “that no evidence was introduced to support a conviction” under that provision, i.e., “permitting another to use one's telephone to commit harassment”.  Hernandez v. State, supra. 

On appeal, Hernandez argued that the trial judge found her guilty under

§ 7 (repeated electronic communication) and acquitted her under §§ 2 (threatening electronic communication) and 4 (causing telephone to ring repeatedly). [Her] argument is premised on the comments preceding the trial court's pronouncement of a general verdict of guilt. According to appellant, the judge made no findings related to the contested testimony concerning the phone calls and text messages.

Hernandez v. State, supra. 

The Court of Appeals noted that the judge’s comments at trial “began with a reference to the emails [Hernandez] introduced into evidence.”  Hernandez v. State, supra.  He said:

`Well, first I find it a little incongruent that they would be communicating for all these months by e-mail and then all of a sudden switch over to communicating through the Facebook account, or whatever it is. But even if these e-mails are true, I don't have to decide whether they are or they aren't.' 

`The statute says that it doesn't -- as opposed to the stalking statute, where there has to actually be a threat of bodily injury, under the harassment statute, which surprisingly was found Constitutional by the Court of Criminal Appeals within the last year or so, that the statute's saying that if it's done for purposes to embarrass, torment, annoy, et cetera, that under the harassment standards that that is sufficient.'

`And especially the blast that went out for the whole world to see would obviously be embarrassing, seem somewhat annoying, tormenting, et cetera. And there seems to be uncontroverted evidence that these e-mails were sent and that they had that effect. And on that basis, I find the Defendant guilty.’

Hernandez v. State, supra. 

Based on these comments (and, I am assuming, the conduct of the trial), the Court of Appeals found that  “the judge pronounced a general verdict of guilt for the crime of harassment”, i.e., he did not make specific findings as to Hernandez’s guilt on each of the distinct charge against her.  Hernandez v. State, supra.  As the court noted, the

written judgment also does not specify that [Hernandez] was found guilty pursuant to a particular subsection of the harassment statute. Indeed, the judgment does not contain a statutory reference at all.

Hernandez v. State, supra. 

The Court of Appeals then found that Hernandez’s argument on appeal was

directed only to the sufficiency of the evidence to support a conviction under section (a)(7). In particular, [she] complains that one public post and three Facebook messages over the scope of three months do not constitute a `repeated communication’ within the meaning of the statute as interpreted by the Texas Supreme Court.

Hernandez v. State, supra.  (Texas Penal Code § 42.07(a)(7) makes it a crime to send “repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.”)

The Court of Appeals found, however, that it did not need to

determine whether the evidence was sufficient under section (a)(7) if the evidence is sufficient to support a conviction under any of the theories alleged. See Rabbani v. State, 847 S.W.2d 555 (Texas Court of Criminal Appeals 1992). When the trier of fact returns a general verdict and the evidence is sufficient to support a finding under any of the theories submitted, the verdict will be upheld. 

Hernandez v. State, supra. 

It explained that, in this case, there was

sufficient evidence in the record to support a conviction under section (a)(4). Section (a)(4) of the statute provides:

(a) A person commits an offense, if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he . . .

(4) 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.

Texas Penal Code § 42.07(a)(4).

Kent testified that she was in class when [Hernandez] called eleven times in ten minutes. When Kent answered the phone and told [her] she would have to call later if she wanted to speak to Guerrero, [Hernandez] immediately sent six text messages. The messages referred to Kent as a bitch and a slut and included a threat of assault. Kent testified that she was afraid [Hernandez] would try to harm her, and these phone calls, like the messages on Facebook, made her feel annoyed and embarrassed.

Hernandez v. State, supra. 

The Court of Appeals therefore held that

[a]lthough [Hernandez] denied making the phone calls and claimed she did not intend to harass Kent, the judge was free to assess her credibility and accept or reject her testimony. . . . Therefore, . . . we conclude the evidence was sufficient to support [her] conviction for harassment. 

Because we have found the evidence sufficient under section (a)(4), we need not consider whether the evidence was also sufficient under any of the alternative theories under which [Hernandez] was charged. . . . Having resolved [her] sole issue against her, we affirm the trial court's judgment.

Hernandez v. State, supra. 

So, Hernandez lost, and unless the Texas Supreme Court is asked to, and agrees to, hear the case, this will be the end of the matter.