Desmond Joseph McBride v. State ( 2008 )

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-06-00400-CR

____________

DESMOND JOSEPH MCBRIDE, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the County Criminal Court at Law No. 1

Harris County, Texas

Trial Court Cause No. 1254726

---

MEMORANDUM OPINION

A jury convicted appellant, Desmond Joseph McBride, of harassment and assessed punishment at a fine of $2,000 and 180 days' confinement, which the trial court suspended for a period of two years of community supervision. The trial court also ordered appellant to pay $5,000 in restitution as a condition of community supervision. See Tex. Penal Code Ann. § 42.07(a)(4) (Vernon 2003); Tex. Code Crim. Proc. Ann. art. 42.037 (Vernon Supp. 2007). On appeal, appellant contends (1) the evidence was factually insufficient to support appellant's conviction for harassment and (2) there is no factual basis in the record to support the restitution order. We affirm.

Facts

Appellant and Holly Huston met at the airport before an overseas trip in November 2000, and began dating shortly after they returned to the United States. Though Huston and appellant broke up several times, their dating relationship ultimately lasted until September 2003, when they agreed to remain friends. Before their breakup, Huston and appellant had several arguments and intense conversations, and Huston had received some unknown late night phone calls and hang ups. After their breakup, in October 2003, Huston was on a trip in Chicago when she received two hang up calls in her hotel room. Upon returning to Houston and notifying appellant that she had been awarded a faculty position at her place of employment, he sent her congratulatory flowers. Huston felt uncomfortable by this gesture and asked appellant not to send her anything else. Later, in December of 2003, appellant called Huston at home and asked for permission to visit, at which point Huston asked appellant to leave her "completely alone" and not to contact her anymore. Huston also sent appellant an email on December 23 declining a lunch invitation and stating, "Again, I have asked that you please leave me alone." Several days later, on Christmas Eve, in response to receiving four unknown payphone hang up calls within a 30-minute period, Huston blocked appellant's home and cell phone numbers.

In January 2004, appellant drove to Huston's home and attempted to give her a gift; Huston refused the gift and again requested that appellant leave her alone. Also on January 7, Huston wrote appellant an email in which she stated the following:

You have reduced this behavior (i.e. calling card and payphone calls), which I appreciate, but am requesting, in writing, that you eliminate it all together. When I have told someone REPEATEDLY that what they are doing is really upsetting, and they then keep doing it, it seems to me that this person is not really trying to be my friend and/or they are unable to control themselves.

Huston also called the police to report telephone harassment. The officer who investigated the telephone harassment incident spoke with appellant by phone and told him that Huston did not wish to be contacted.

However, in February, Huston received several other communications from appellant, including pages, voice mails, e-mails, and e-cards; she also received several anonymous payphone calls.

In April 2004, Huston noticed that appellant showed up at several places she had discussed with others on the telephone. She also saw him standing in the walkway near her house and driving back and forth in front of her sister's home while she was visiting. As a result, Huston attempted, unsuccessfully, to obtain a Protective Order against appellant. However, the District Attorney's office did send a letter to appellant's address asking that he stop contacting Huston. Huston also hired a private investigator to conduct a threat assessment. On the advice of that private investigator, Huston unblocked appellant's phone number, and after receiving a phone call from him within 90 minutes of doing so, Huston began to record any calls originating from the appellant. Huston was able to record six such phone calls between June 18, 2004 and August 16, 2004. Due to these phone calls, appellant was arrested on August 27, 2004 and convicted of harassment. During trial, Huston testified that appellant's actions were "mentally and emotionally" disruptive and caused her to miss work; during sentencing, Huston estimated that she paid the private investigator between $4,000-5,000 and spent approximately $150 on other "out of pocket" expenses, such as Mace and door lock changes.Factual Sufficiency

In his first point of error, appellant contends that the evidence presented at trial was factually insufficient to prove that he caused Holly Huston's telephone to ring repeatedly with the intent, and in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend her. See Tex. Penal Code Ann. § 42.07(a)(4) (Vernon 2003). Specifically, appellant argues that six calls during a two-month period is insufficient to show that he intended to harass Huston, particularly in light of the innocuous content of the calls. ⁽¹⁾

Standard of Review

   In a   factual   sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence.   Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Id. at 417. Nor can we declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. We note that a jury is in the best position to evaluate the credibility of witnesses, and we afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

Harassment

Appellant contends that there was factually insufficient evidence for a jury to conclude that he was guilty of the harassment of Holly Huston because (1) he did not act with the intent to harass or annoy her by calling her, and (2) six telephone calls over a two-month period is insufficient to rise to the level of "repeated" as required by the statute.

The indictment alleged that appellant committed the offense of harassment pursuant to section 42.07 of the Penal Code. See Tex. Penal Code Ann. § 42.07(a)(4). Accordingly, for the jury to find the appellant guilty, the State had to prove that the appellant acted intentionally, in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend Holly Huston, by causing her telephone to ring repeatedly. See id.; Blount v. State, 961 S.W.2d 282, 284 (Tex. App.--Houston [1st Dist.] 1997, pet ref'd).

Intent to harass

A person acts "intentionally" if it is that person's conscious objective or desire to engage in the conduct or cause the result. See Tex. Penal Code Ann. § 6.03(a) (Vernon 2003). Because the intent of the accused may be inferred from circumstantial evidence, Blount, 961 S.W.2d at 284 (quoting Wolfe v. State, 917 S.W.2d 270, 275 (Tex. Crim. App. 1996)), intent may be determined from the accused's words, actions, and conduct. Blount, 961 S.W.2d at 284 (citing Price v. State, 410 S.W.2d 778, 780(Tex. Crim. App. 1967)).

The evidence, viewed in a neutral light, is factually sufficient to show that appellant intended to harass Huston. Huston testified in court that, before July 2004, she received multiple gifts, pages, cards, emails and phone calls from appellant. She further testified that, before July 2004, she repeatedly asked appellant by phone and by email not to contact her, blocked his home and cell phone numbers, tried to get a protective order, and hired a private investigator. A Houston Police Officer testified that he spoke with appellant and told him that Huston did not wish to be contacted. A caseworker at the District Attorney's office testified that she sent a letter to appellant's address asking that he stop contacting Huston. Appellant did not deny making the six calls between July and August 2004. Appellant claimed, however, that he did not recall receiving some of the notices that Huston wanted him to stop contacting her, that he wanted to maintain a friendship with Huston and that, because he cared for her, he did not have any ill intent in calling her. Thus, appellant contends, Huston's taking offense at the phone calls is not objectively reasonable.

Because the jury was free to believe all, some, or none of the testimony presented, it could have accepted the testimony from Huston and other state witnesses and disregarded any inconsistent evidence by appellant. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Perez v. State, 113 S.W.3d 819, 839 (Tex. Crim. App. 2003). Based on appellant's repeated disregard for Huston's requests to stop calling, as well as warnings from the police and the district attorney's office, the jury could have rationally concluded that appellant intended the calls to harass, annoy, alarm, abuse, torment, embarrass, or offend Huston, and that an objectively reasonable person would feel so harassed. See Blount, 961 S.W.2d at 284. In fact, Huston notified appellant in her January 7 email that his actions were upsetting her and that she did not believe he was just trying to be her friend. Although appellant denied any ill intent, the jury was entitled to his disbelieve his testimony. That the jury chose to believe Huston's testimony concerning appellant's actions, words, and conduct, over the testimony of the appellant himself, and concluded that appellant intended to annoy or harass Huston does not indicate that the evidence was so weak as to render the verdict clearly wrong and manifestly unjust or against the great weight and preponderance of the evidence. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

Repeated telephone calls

Nor does the fact that appellant made only six calls render the evidence factually insufficient. In Blount v. State, the court found a victim's testimony and two recorded messages to be sufficient in showing that the defendant made repeated phone calls to the victim when the victim testified that he had asked the defendant to stop calling. Blount, 961 S.W.2d at 285. Thus, the jury could reasonably have found that Huston's testimony and six recorded messages showed that appellant made "repeated" phone calls to Huston after she had repeatedly asked him to refrain from contacting her. See id.

We overrule appellant's first point of error.

Restitution

In his second point of error, appellant contends that the trial court abused its discretion by ordering him to pay $5000 in restitution as a condition of his community supervision. Specifically, appellant asserts that there is no factual basis to support the award.

  Although appellant frames his issue as one of factual sufficiency, we review the trial court's imposition of restitution for an abuse of discretion. See Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999) ("An abuse of discretion by the trial court in setting the amount of restitution will implicate due-process considerations."); Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980); Tyler v. State, 137 S.W.3d 261, 266 (Tex. App.--Houston [1st Dist.] 2004, no pet.). An abuse of discretion occurs if the trial court acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

Texas law provides three limits on the amount of restitution a trial court can order. See Campbell, 5 S.W.3d at 696-97; Tyler, 137 S.W.3d at 266. The amount must be just and supported by a factual basis within the loss of the complainant. Campbell, 5 S.W.3d at 696-97; Tyler, 137 S.W.3d at 266. The restitution ordered must also be for an offense for which the convicted person is criminally responsible. Campbell, 5 S.W.3d at 697; Tyler, 137 S.W.3d at 266. Finally, restitution is proper only for the victim or victims of the offense for which the offender is charged. Campbell, 5 S.W.3d at 697; Tyler, 137 S.W.3d at 266. The prosecution has the burden of proving the amount of loss sustained by the victims of a crime by a preponderance of the evidence, for the purpose of factually supporting a restitution order. Tex. Code Crim. Proc. Ann. art. 42.037(k) (Vernon Supp. 2007).

Huston presented evidence at the guilt-innocence phase of the trial, which was reintroduced during the punishment phase, that she hired Don Malone, a private investigator, to assist her in dealing with appellant. She also testified that she had to take off approximately two weeks of work as a result of appellant's harassment of her, and changed her locks and bought mace. Don Malone testified that Huston hired him to conduct a threat assessment. Malone testified that Huston paid him for his services. He further testified that he had worked on the case for "close to a hundred" hours, but that he had billed "less than twenty." At the punishment phase of the trial, Huston testified that she had paid Malone "four or five thousand dollars" and had spent "around a hundred and fifty" dollars for "mace, locks, and so forth." Appellant did not cross-examine Huston or Malone about the value of Malone's services or Huston's expenses and provided no evidence controverting their testimony.

Appellant argues that the $5,000 restitution award is not just because it is insufficiently supported by a factual basis in the record. Appellant points out that there is no documentation of Malone's hourly rate and no receipts to corroborate Huston's testimony, which was inexact.

Testimony from a witness like Huston, with personal knowledge of the amount of expenses incurred, is adequate to support a restitution order. See Burris v. State, 172 S.W.3d 75, 78 (Tex. App.--Fort Worth 2005, no pet.); Maloy v. State, 990 S.W.2d 442, 444-45 (Tex. App.--Waco 1999, no pet.). Based on the evidence that Huston hired Malone and paid him between four and five thousand dollars, that she missed approximately two weeks of work, and that she spent approximately $150 in changing her locks and buying mace, we cannot say the trial court abused its discretion in setting restitution at $5000, or that the amount of restitution was not "just."

We overrule point of error two.

Conclusion

We affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Do not publish. Tex. R. App. P. 47.2(b)

1. The transcripts of the six telephone calls shows that appellant made no overt threats during the calls. In one call appellant tells Huston of a car accident he was in; in one call he is "just calling to see how you are"; in one call he reminds Huston that a certain television show is coming on, in another call he invites her to lunch and hopes that she'll "let bygones be bygones and just be friends"; and in two calls appellant claims to have dialed a wrong number.