No. 08-04-00118-CR
August 18, 2005. DO NOT PUBLISH.
Appeal from the County Criminal Court #2 of El Paso County, Texas, (TC# 20030C17953).
Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
DAVID WELLINGTON CHEW, Justice.
Maria Carrillo appeals her conviction of harassment. A jury found Appellant guilty of harassing Fernando Diaz by making repeated telephone communications and by threatening to inflict bodily injury on the victim. The trial court assessed her punishment at a fine of $300 and 180 days' confinement, probated for one year. We affirm.
TERRITORIAL JURISDICTION
In her sole point of error, Appellant contends that the evidence is factually insufficient to prove territorial jurisdiction because the victim, Mr. Diaz, told her that he was living in Mexico during the time period relevant to this case. By challenging only the factual sufficiency of the evidence, Appellant has conceded that the evidence is legally sufficient to support her conviction. See Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). Standard of Review
In reviewing factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis, 922 S.W.2d at 129. The question to be answered is whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). The evidence may be factually insufficient in two ways: (1) when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt; and (2) there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. at 484-85. Thus, weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. at 485. This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Id. Stated another way, evidence supporting guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Id. Territorial Jurisdiction
Under Section 1.04(a)(1) of the Penal Code, Texas has jurisdiction over an offense that a person commits by his own conduct or the conduct of another for which he is criminally responsible if either the conduct or a result that is an element of the offense occurs inside this state. TEX.PEN. CODE ANN. § 1.04(a)(1) (Vernon 2003). The two-paragraph information charged Appellant with committing harassment under Section 42.07(a)(2) and (4) of the Penal Code. Under these two subsections, a person commits harassment if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, she either: (1) threatens by telephone, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person receiving the call; or (2) makes repeated telephone communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend the recipient of the calls. See TEX.PEN. CODE ANN. § 42.07(a)(2) (4) (Vernon 2003). In the context of the harassment statute, a telephone call does not become a "telephone communication" until the call is received; therefore, a telephone communication occurs both at the location of the caller and the recipient. See Haigood v. State, 814 S.W.2d 262, 263 (Tex.App.-Austin 1991, pet. ref'd). Thus, a Texas court has territorial jurisdiction over a telephone-harassment case if the caller makes the call from within this state or the recipient of the call is within this state. See id. It is unclear whether the State must prove territorial jurisdiction beyond a reasonable doubt or by a preponderance of the evidence. See Torres v. State, 141 S.W.3d 645, 654 (Tex.App.-El Paso 2004, pet. ref'd). We conclude that the evidence is factually sufficient under either standard. Taken in a neutral light, the evidence at trial showed that Appellant made multiple harassing telephone calls to Mr. Diaz. Although Appellant claimed that she did not know where Mr. Diaz was when he received the calls, he had told her that he was living in Juarez with his mother. Appellant introduced her cell phone records which do not show any telephone calls to Mr. Diaz's home phone or cell phone on the date alleged in the information, October 28, 2003. Mr. Diaz, however, testified that he lived in El Paso, Texas and he had received the harassing calls on both his home phone and cellular phone in El Paso. Mr. Diaz's direct testimony is factually sufficient to prove territorial jurisdiction. See St. Julian v. State, 132 S.W.3d 512, 515 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd) (direct testimony by police officer that offense occurred in Harris County was both legally and factually sufficient to prove territorial jurisdiction). The jury was free to reject Appellant's testimony that Mr. Diaz was living in Mexico at the time of the offense particularly given that Appellant admitted she did not know whether Mr. Diaz was in El Paso or Juarez when she called him. Further, Appellant's cell phone records do not exclude the possibility that she made the harassing calls to Mr. Diaz from another telephone. The contrary evidence does not outweigh Mr. Diaz's testimony that he received the harassing calls in El Paso. We conclude the evidence is factually sufficient to prove that the trial court had territorial jurisdiction over the offense. Appellant's sole point of error is overruled and the judgment of the trial court is affirmed.