Summary
finding sufficient evidence to conclude the appellant knew or reasonably believed his conduct would threaten the complainant with bodily harm or death when the appellant made repeated phone calls to the complainant, appeared at the complainant's place of business on multiple occasions, and followed the complainant, although the complainant admitted the appellant never threatened to harm her
Summary of this case from Pomier v. State No. 03-04-00495-CR
Filed: September 9, 2005. DO NOT PUBLISH.
Appeal from the District Court of Bell County, 27th Judicial District, No. 55942, Honorable Martha J. Trudo, Judge Presiding. Affirmed.
Before Justices B.A. SMITH, PATTERSON and PEMBERTON.
BEA ANN SMITH, Justice.
David Anthony Martinez was convicted of stalking and sentenced to eleven years in prison. See Tex. Pen. Code Ann. § 42.072 (West 2003). He raises three issues on appeal contending that the evidence was legally and factually insufficient to support a conviction and that the trial court abused its discretion by admitting evidence of a prior murder conviction. We affirm the conviction.
BACKGROUND
Martinez was convicted of stalking Shelly Coston, a paralegal for Belton criminal defense attorney Jim Hewitt. Coston had previously worked for the Bell County District Attorney's Office. Martinez's first interaction with Coston was in the summer of 2003. She noticed a man loitering outside of the law office where she worked. After confirming that he had no business in the building, she had Hewitt ask the man to leave. Hewitt testified that the man told him that he was waiting for a ride. Coston noticed the same man sitting in the lobby of the building on another occasion, and she asked a neighboring office worker to tell the man to leave. On both occasions, the man left without incident. The same individual again stopped by the law office asking to consult with Hewitt about a legal matter. The man did not have an appointment and waited in the office until Hewitt arrived. Hewitt testified that he met with the man for about twenty minutes. He stated that the man did not actually have a legal problem, describing the interview as "totally bogus." On December 15, 2003, Coston received a phone call at the office. The caller stated that he liked her panty hose. Coston testified that she quickly hung up the phone thinking it was a prank call. The following week while shopping in nearby Temple, Coston saw the man who had been loitering around the office. She testified that she was with her children and that she turned around to see the man standing a few feet away staring at her. Coston hurried her children through the store and left. She explained, "I didn't know if it was just another weird coincidence or — I just was very rattled. . . ." Coston received another suspicious call at the office on December 31. She testified that the male caller asked why she wasn't wearing panty hose and stated that he knew she was wearing pants because he was watching her and had her on videotape. The caller also told Coston that he liked to watch the video because he liked the way she dangled her shoe at the end of her toe. Coston asked who the caller was and he identified himself as "John." Coston described how this phone call made her feel: Very vulnerable, very afraid. He had specific information that was very unnerving because I hadn't been anywhere other than the back door of my office and I could not figure out how he could have such specific information, if he wasn't watching me.
She testified that the call made her afraid that the caller would hurt her or her children. After this call, Coston called Hewitt and asked him to come to the office immediately. Hewitt described her call as "a panic phone call" and stated that Coston was very distressed. After Hewitt returned to the office, they called the police and a trace was set up on the office phone. On January 2, another call came in. The caller identified himself as "the video man" and sounded friendly. The caller told Coston that he was watching the tape of her, commented that she had beautiful feet, and told her that he enjoyed watching her. Coston testified that she was more frightened by this call than the previous ones. The trace revealed the phone number from which the calls originated. Coston and Hewitt hired a private investigator, Jack Chapman, to track down the man who was making the phone calls. Chapman testified that he and a partner went to an address associated with the phone number where he had determined Johnny Angel Martinez resided. They knocked on the front door of the house and a man came out from the side door. The man identified himself as David Martinez. Chapman explained that Coston was concerned about calls from "Johnny" and that she wanted him to stop calling. Martinez responded that Johnny was his brother and that he did not see him very often. Chapman left Martinez his business card. Chapman tape recorded the conversation with David Martinez and obtained photographs and criminal histories of both Martinez brothers. On January 6, Chapman met with Coston and Hewitt. Coston identified Martinez as the voice on Chapman's tape recording, and both Coston and Hewitt identified Martinez as the man who had been to the office. Chapman then informed Coston and Hewitt that Martinez had been convicted of murder in 1992. This information was passed on to Belton Police investigator Larry Berg. Berg and another officer visited Martinez's home at around 9:00 a.m. on January 8, but no one came to the door. Berg then called Martinez and spoke to a person who identified himself as Daniel. Coston testified that Martinez called her again at 9:55 a.m. the morning of January 8: He was very angry. He was screaming into the phone, why did I send the investigators to talk to him, why was I doing this to him. He just kept on and on and on saying the same things, why was I doing this to him. I didn't respond at all. I was frozen, I guess on the phone. Mr. Hewitt came in at that time and went to the extension in his office and told the caller to hang up and advised the caller to not call this number again.
Later that day, Martinez called Berg and agreed to come into the police station. There, he made a written statement in which he admitted visiting Hewitt's law office and making the phone calls to Coston. He stated that he found Coston attractive and was trying to ask her out. He denied making a videotape of Coston and claimed that he did not even know her name. He stated that he did not mean to scare Coston. At trial, Martinez testified in his own defense. His testimony was generally consistent with his written statement. He explained that he had been in Coston's building waiting for a ride. He admitted to making the phone calls because he had a crush on Coston, and testified that he regretted what he said on the phone and did not mean to scare Coston. He denied actually making a videotape of Coston and attributed their meeting at the store in Temple to coincidence. Martinez also tried to explain the circumstances of his murder conviction in a somewhat more favorable manner. Martinez was impeached on a number of subjects in a lengthy and far-reaching cross-examination. DISCUSSION
Martinez challenges his conviction in three issues contending that the evidence was legally and factually insufficient to support a conviction and that the trial court abused its discretion by admitting evidence of his prior murder conviction. Sufficiency of the Evidence
When there is a challenge to the sufficiency of the evidence to sustain a criminal conviction, the question presented is whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979) (legal sufficiency); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex.Crim.App. 1981) (legal sufficiency); Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004) (factual sufficiency). In a legal sufficiency review, all the evidence is reviewed in the light most favorable to the verdict; it is assumed that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Griffin, 614 S.W.2d at 159 (citing Jackson, 443 U.S. at 318-19). In a factual sufficiency review, all the evidence is considered equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex.App.-Austin 1992, no pet.). Although due deference still must be accorded the fact-finder's determinations, particularly those concerning the weight and credibility of the evidence, the reviewing court may disagree with the result in order to prevent a manifest injustice. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000). The evidence will be deemed factually insufficient to sustain the conviction if the evidence of guilt — considered alone — is too weak to support a finding of guilt beyond a reasonable doubt, or if the strength of the contrary evidence precludes a finding of guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85. In conducting a legal or factual sufficiency review, we consider all the evidence, rightly or wrongly admitted. See Camarillo v. State, 82 S.W.3d 529, 537 (Tex.App.-Austin 2002, no pet.). Martinez's contentions center around the fact that he never explicitly threatened Coston. He characterizes his phone calls as merely "unappreciated compliments" and argues that there is no evidence that he knew, or reasonably believed, that his conduct would be perceived as threatening bodily injury or death. Although Coston admitted that Martinez never threatened to harm her in any way, we may infer such a threat from a person's actions. Here, Martinez appeared at Coston's place of business on three separate occasions without a legitimate reason for being there. Coston also testified that she encountered him at a store, standing within a few feet of her, staring at her. He made repeated phone calls in which he told her that he was watching her and that he had videotaped her. Martinez provided details that he would only have known by following her. Coston testified that Martinez was angry in his last phone call to her and that he was yelling into the phone. At that point, Coston was aware that Martinez was a convicted murderer and that he had already been told to stop making the phone calls. Martinez attempts to distinguish these facts from other cases finding sufficient evidence of stalking in which there was a history of violence between the defendant and the complainant, see Sisk v. State, 74 S.W.3d 893, 900 (Tex.App.-Fort Worth 2002, no pet.), or there were veiled threats made by the defendant. See Battles v. State, 45 S.W.3d 694, 698 (Tex.App.-Tyler 2001, no pet.) (defendant told mother that someone should "watch over" her son). However, these cases do not delineate a minimum quantum of evidence to establish an offense; they simply find the evidence sufficient based on the unique facts in the record. Viewing the evidence in the light most favorable to the verdict, we hold that a reasonable jury could have inferred from Martinez's repeated and unwanted contacts with Coston that he knew, or reasonably believed, that his course of conduct would be regarded as threatening bodily injury or death. See Tex. Pen. Code Ann. § 42.072(a)(1). There is also ample evidence in the record that Coston was actually placed in fear of bodily injury or death, and that a reasonable person would have been placed in such fear. See id. § 42.072(a)(2), (3). Even considering all the evidence equally, we cannot conclude that there was factually insufficient evidence. The jury was free to disbelieve Martinez's statements that he did not intend to scare Coston or find his assessment unreasonable. See Johnson, 23 S.W.3d at 7. Because we hold that the evidence was legally and factually sufficient to support a conviction for the offense of stalking, we overrule Martinez's first and second issues. Admission of Prior Murder Conviction
In his third issue, Martinez contends that the district court abused its discretion by admitting evidence of his prior murder conviction. The State introduced the pen packet from Martinez's prior murder conviction during its direct examination of private investigator Chapman. The issue was thoroughly discussed at a pre-trial hearing, in which Martinez objected to the evidence as irrelevant and argued that any probative value of the evidence would be substantially outweighed by the prejudicial nature of the evidence. The State responded that the murder conviction was relevant to Martinez's state of mind because he knew of his own conviction and had reason to believe that Coston would discover his criminal history. The State also asserted that the murder conviction was relevant to the degree and reasonableness of Coston's fear once she discovered that Martinez was a convicted murderer. The district court overruled Martinez's objections prior to trial and again when the evidence was admitted. Evidence of other crimes, wrongs, or acts is not admissible to prove the defendant's character in order to show action in conformity with that character. Tex. R. Evid. 404(b). This rule incorporates the fundamental tenet of our criminal justice system that an accused may be tried only for the offense of which he is accused and not for his criminal propensities. Rankin v. State, 974 S.W.2d 707, 718 (Tex.Crim.App. 1996); Casey v. State, 160 S.W.3d 218, 225 (Tex.App.-Austin 2005, pet. filed). A defendant may not be tried for some collateral crime or for being a criminal generally. Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App. 1983); Casey, 160 S.W.3d at 225. Because of the "inherent risk that a defendant may be convicted because of his propensity for committing crimes generally — i.e., his bad character — rather than for the commission of the charged offense, courts have historically been reluctant to allow evidence of an individual's prior bad acts or extraneous offenses." Owens v. State, 827 S.W.2d 911, 914 (Tex.Crim.App. 1992). Evidence of a defendant's criminal history may be admissible to if it tends to prove a material fact in the State's case apart from its tendency to demonstrate an accused's general propensity for committing criminal acts. Id. Here, the State asserted that Martinez's murder conviction was relevant to (1) the reasonableness of Coston's fear of bodily injury or death and (2) whether Martinez reasonably believed that his course of conduct would be regarded as threatening such injury. We agree that Martinez's murder conviction would be relevant to these issues, but only if Coston was actually aware of the conviction and Martinez knew that Coston was aware of his past. It appears from the record that Martinez remained anonymous throughout the majority of his contacts with Coston. It was not until January 6 that Martinez was visited by private investigators and subsequently identified by Coston. On the morning of January 8, Martinez received a phone call from a Belton police officer. After these two contacts, Martinez made a final angry phone call to Coston. At the time Martinez made this call, he knew that Coston had sent private investigators to his home and that the police were now looking for him. Because of the involvement of private investigators and the police, Martinez should also have known that Coston would be aware of his identity and his prior conviction for murder. Accordingly, the prior murder conviction was relevant to both Martinez's and Coston's states of mind during the January 8 phone call. Martinez counters that, even if the evidence was relevant, its probative value was substantially outweighed by the prejudicial nature of evidence of a murder conviction. However, the jury was given a specific instruction limiting its consideration of the murder conviction to its determination of the states of mind of Martinez and Coston. Furthermore, Martinez's defensive theory highlighted the probative value of his murder conviction. At trial, Martinez established that Coston, as the employee of a criminal defense attorney, had dealt with thousands of criminal defendants. He argued that his phone calls and visits would not reasonably instill a fear of bodily injury or death in a person with Coston's experience. In light of this strategy, we find that Martinez's history of intentional murder — the most serious of violent offenses — was of significant probative value and not substantially outweighed by its prejudicial nature. We overrule Martinez's third and final issue. CONCLUSION
The evidence was legally and factually sufficient to support a conviction and the district court did not err by admitting evidence of Martinez's prior murder conviction. Having overruled all of Martinez's issues, we affirm the district court's judgment.