Wednesday, February 05, 2014

The Cell Phone, Divorce and Harassment

When Betty Dougia Jasper was “charged by information with harassment” in violation of Texas Penal Code § 42.07(a), she “pleaded not guilty.”  Jasper v. State, 2014 WL 265699 (Texas Court of Appeals 2014). The trial judge “found her guilty”, “assessed punishment at 180 days in state jail, suspended the sentence, and placed her on community supervision for one year.”  Jasper v. State, supra.  

In the “one issue” she raised in her appeal, Jasper “argue[d] that the evidence is insufficient to establish that she intended to harass the complainant.”  Jasper v. State, supra.  The Court of Appeals began its analysis of her argument (which involves facts we will get to) by explaining that

[w]e review the sufficiency of the evidence establishing the elements of a criminal offense for which the State has the burden of proof under a single standard of review. Matlock v. State, 392 S.W.3d 662 (Texas Court of Criminal Appeals 2013). . . .  This standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). . .

 Pursuant to 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 v. Virginia, supra; In re Winship, 397 U.S.358 (1970). . . .

We can hold evidence to be insufficient under the Jackson standard in two circumstances: (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 Jackson, supra, 443 U.S. at 314, 318. . . .

The sufficiency-of-the-evidence standard gives full play to the responsibility of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson v. Virginia, supra. . . .  

An appellate court presumes that the fact finder resolved any conflicts in the evidence in favor of the verdict and defers to that resolution, provided that the resolution is rational. See Jackson v. Virginia, supra.

In viewing the record, direct and circumstantial evidence are treated equally; circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Clayton v. State, 235 S.W.3d 772 (Texas Court of Criminal Appeals 2007).  Finally, the `cumulative force’ of all the circumstantial evidence can be sufficient for a jury to find the accused guilty beyond a reasonable doubtSee Powell v. State, 194 S.W.3d 503 (Texas Court of Criminal Appeals 2006).

Jasper v. State, supra.  

That brings us to the facts that led to Jasper’s being charged with harassment:

[Betty] separated from her husband, Tommy Jasper, in 2008. Their divorce was still pending in 2009. Some time after [Betty] and Tommy separated, Tommy and Crystal Graves began dating. Crystal was separated from her husband and in the process of divorcing him. [Betty] also began some kind of sexual relationship with Crystal's husband.

[Betty] extended her middle finger at Crystal and laughed at her. [Betty] then backed out, yelling vulgar names at Crystal. Crystal called the Hardin County Sheriff's office to report what happened. One of the constables issued a no-trespassing notice to [Betty].

Jasper v. State, supra.  

At Betty’s trial, Crystal testified that Betty

had made a number of harassing phone calls to her. Crystal explained that, at some time in the past, she had lost a child during her pregnancy. Crystal testified that [Betty] had called her once, saying `that God wouldn't let me have children because I couldn't even take care of a dog.’

Jasper v. State, supra.  

The opinion goes on to explain that the incident for which Betty

was charged occurred on August 19, 2009. Tommy was living at a hunting camp owned by another person. Crystal was with him. Crystal got a call on her cell phone from an unidentified number. She answered it and heard [Betty] cursing at her and calling her vulgar names.

[Betty] told Crystal that Crystal's husband `didn't like fucking [Crystal]. He liked fucking [Betty] better.’ During her testimony [at trial], [Betty] denied intending to harass, annoy, alarm, abuse, torment, or embarrass Crystal. She did, however, admit to calling her `a yeast-infected slut.’

After she ended the phone call, Crystal called the Hardin County Sheriff's Department. Sergeant C. Brewer drove to the hunting camp and talked to Crystal. He then called [Betty]. Sergeant Brewer testified that [Betty] admitted to calling Crystal and `it got ugly and she said that she cursed her, called her ugly names and said -- but she said she knew she was wrong for doing that and she was sorry for it.’

Jasper v. State, supra.  

And that brings us back to Jasper’s conviction and her argument, on appeal, that the evidence at trial was not sufficient to prove beyond a reasonable doubt that she, in fact, committed that crime. Jasper v. State, supra.  The Court of Appeals began its analysis of her argument by explaining that

Section 42.07(a)(1) of the Texas Penal Codes provides, `A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person ... initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene.’ . . .

For the purposes of this statute, obscene means `containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function.’ [Texas Penal Code] § 42.07(b)(3). [Betty] argues there is insufficient evidence to establish she meant to harass Crystal.

Jasper v. State, supra.  

The Court of Appeals also noted that the Texas Court of Criminal Appeals

has held that, in order for a statement to be obscene as defined under the statute, the statement must be `a description of a sexual act,’ as opposed to a `general allegation of sexual activity.’ Pettijohn v. State, 782 S.W.2d 866 (Texas Criminal Appeals 1989).

The only statement by [Betty] to satisfy this requirement is [her] statement that Crystal's husband `didn't like fucking [Crystal]. He liked fucking [Betty] better.’ We hold this is sufficient to establish that [Betty] made a comment that was obscene. See Texas Penal Code § 42.07(a)(1).

Jasper v. State, supra.  

The court then explained that in her brief on appeal, Betty described the phone call to

be from `someone from an unknown phone number.’ While the telephone number of the caller was not shown on her cell phone, Crystal testified that she recognized [Betty’s] voice. Sergeant Brewer testified that he called [Betty] later that day and [she] admitted to calling Crystal and that `it got ugly.’

Even [Betty] admitted on the stand that she called Crystal on the date in question but denied saying most of the things Crystal identified. We hold there is sufficient evidence in the record to establish that [Betty] initiated communication with Crystal. . . .

Jasper v. State, supra.  

The Court of Appeals then began its analysis of Betty’s almost final argument by noting, “finally,” that Betty denied that

she had the requisite intent to harass Crystal. [Betty] argues, `This Court must decide whether this is simply a case of a domestic issue that resulted in heated emotions and not intentional harassment.’ [She] fails to establish, however, how one is exclusive of the other. The statute provides no exceptions for `domestic issues’ or `heated emotions.’ Accordingly, this is not an issue we must decide because it has no bearing on [Betty’s] intent.

The statute makes a person criminally responsible for harassment when she `intended, that is, consciously desired, the results of his actions.’ Blount v. State, 961 S.W.2d 282 (Texas Court of Appeals 1997).  Intent can be inferred from circumstantial evidence. Blount v. State, supra. 

Jasper v. State, supra.  

The court then found that the

evidence establishes that [Betty] had, for a number of months, called Crystal vulgar names in telephone conversations and in person. She continued doing this on August 19, 2009, using obscene language. Crystal testified that [Betty] even called her a vulgar name when [Betty] saw her at the courthouse on the morning of the trial.

Considering [Betty’s] repeated efforts to call Crystal vulgar names, including on the day of the trial for her charge of harassment, we hold there was sufficient evidence for the trial court to infer that [Betty] intended to `harass, annoy, alarm, abuse, torment, or embarrass’ Crystal.

Jasper v. State, supra.  

Finally, the court explained that Betty

also argues she was simply `trying to protect her property’ and `warn[ing] [Crystal] to stay off her property.’ [Betty] fails to explain how claims of who a person prefers to have sex with have any bearing on any matters relating to [Betty’s] property.

Nevertheless, at best, this was a matter for the trier of fact to resolve. See Jackson v. Virginia, supra. (holding it is `the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts’).

Jasper v. State, supra.  

The court therefore rejected Betty’s arguments and affirmed her conviction for criminal harassment. Jasper v. State, supra.  

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