Opinion
No. 05-03-01446-CR
Opinion issued March 16, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 9, Dallas County, Texas, Trial Court Cause No. MB03-71212-K. Affirmed.
Before Justices BRIDGES, O'NEILL, and MAZZANT.
OPINION
Jamal Elhaj Chehade appeals his conviction for harassment. A jury found appellant guilty, and the court assessed punishment at one-hundred eighty days' confinement and a fine of $500. The court suspended imposition of the sentence and placed appellant on community supervision for twenty-four months. Appellant brings four issues on appeal, complaining the evidence was neither legally nor factually sufficient and the court erred in admitting two of the State's exhibits. We affirm the trial court's judgment.
Background
Appellant moved to the United States after attending medical school in Romania. He secured the services of Education Commission for Foreign Medical Graduates (ECFMG) to assist him in obtaining a medical license in the United States. Appellant, as a pro se plaintiff, subsequently sued ECFMG in federal court. The federal district court granted summary judgment in favor of ECFMG. Appellant then brought a second suit against ECFMG in federal court. The federal district court again dismissed the lawsuit and granted sanctions against appellant of nominal attorney's fees as well as a requirement that appellant obtain permission from the court before filing further claims against specified parties. Mark Roberts, an attorney working for the firm that represented ECFMG, became involved in appellant's case against ECFMG during the second lawsuit. Roberts received "numerous" phone calls from appellant while he worked on the case, and appellant sent emails to Roberts. Based on the content of the emails and phone calls, Roberts became "concerned" and "alarmed." Roberts contacted the U.S. Marshals service, the Federal Bureau of Investigation, and the Dallas police. As a result, appellant was charged with harassment. This appeal stems from his conviction.Legal and Factual Sufficiency
In his first and second points of error, appellant complains the evidence is legally and factually insufficient to prove that appellant intended to threaten Roberts or that he threatened to kill Roberts. Specifically, appellant argues the evidence was insufficient to prove he intended to threaten Roberts and that he threatened Roberts. Standards of Review When we review evidence to determine if it was legally sufficient to support a verdict, we view all of the evidence in the light most favorable to the verdict, asking whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). The factual sufficiency standard for guilt requires us to ask, viewing all the evidence in a neutral light, whether the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Under either review, the fact finder is the sole judge of the weight and credibility of witness testimony. Jones v. State, 944 S.W.2d 642, 647, 648 (Tex.Crim.App. 1996). Applicable Law The charge to the jury tracked the language of section 42.07 of the penal code, allowing the jury to convict appellant of harassment if it found appellant,with intent to harass, annoy, alarm, abuse, torment, or embarrass another . . . threaten[ed], by telephone, in writing, or by electronic communication, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of his family or his property.See Tex. Pen. Code Ann. § 42.07(a)(2) (Vernon Supp. 2004-05). The charge also allowed the jury to convict appellant if it found that he, "with intent to harass, annoy, alarm, abuse, torment, or embarrass [Roberts], . . . cause[d] the telephone of [Roberts] to ring repeatedly." See id. § 42.07(a)(4). Intent is required as to the result of the conduct, but the intent of the accused may be inferred from circumstantial evidence. Blount v. State, 961 S.W.2d 282, 284 (Tex.App.-Houston 1st. Dist] 1997, pet. ref'd) (citing Wolfe v. State, 917 S.W.2d 270, 275 (Tex.Crim.App. 1996)). When, as here, the jury is authorized to convict under alternate means of committing the offense and the jury returns a general verdict of guilty, we will uphold the conviction if the evidence is sufficient to support a finding of guilt under any of the alternatives submitted. Gutierrez v. State, 85 S.W.3d 446, 449-50 (Tex.App.-Austin 2002, pet. ref'd). We use an objective standard to determine if a particular statement may be properly considered a threat. Manemann v. State, 878 S.W.2d 334, 337 (Tex.App.-Austin 1994, pet. ref'd). That standard asks if a reasonable person-not necessarily the defendant-would consider the statement to be a interpreted by the ordinary hearer/recipient as a serious expression of intent to harm or assault. See id. A threat of physical harm is not required to be directly expressed but may be contained in veiled statements, implying a threat when viewed in all the circumstances. Id. Threats, even when subtle, should be considered "in light of their entire factual context, including the surrounding events and the reaction of the listeners." Id. And the fact finder determines whether a reasonable person would understand the statement or statements in question as being a threat. See id. at 338. Relevant Facts Appellant's statements in pleadings that were sent to Roberts as attachments to emails included the following comments:
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The judges [sic] orders/judgment are IRRESPONSIBLE and desperate acts to test the resolves and determination of the plaintiff and that the plaintiff is asking all parties to stop testing the water because they will get burned in hell. . . . Who play with fire will get burned. And this will end.
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[Appellant] holds the defendants [sic] [ECFMG's] attorneys (hired guns) and every judge, especially the USDC judges as personally responsible. . . . The plaintiff reserves the right to seek justice in the matter he sees fit. The plaintiff will not allow anyone to prosper at the expense of the plaintiff's needs.Roberts received emails from appellant that included the following statements:
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[B]ut I will start treating the bigotry with the same standards. [T]he road to pain is a two-way street. [T]here must be a language that the defendants and his allies understand.
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I expect the matter to escalate since I was attacked in my apartment and searched in absentia, [sic] Bigotry is enormous and violence is permitted to seek justice under 2nd amend and reciprocity clause and see Aaron Burr and [A]lexander Hamilton. Whoever acted or attempted to destroy me I will destry [sic] him the road of destruction is a two way street. I attempted the court but they are infested by non-elected officials who wiped their asses with the US Constitution and what the US Stands for — I am not afraid of dying I already wrote my will
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[I]f I see a judge or a lawyer or anybody driving (who acted blind) [I] will assume they are blind and take a defensive measures [sic]. I will not allow anybody to endanger my life or put it at risk. . . . [A]nyway the matter is most likely to esaclate [sic] unless your client do [sic] what he is supposed to do, only then everything will be put behind us. [T]he decision lies in your court.
Roberts also testified regarding phone conversations with appellant. Roberts stated,
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[Appellant] would start making statements that caused me a lot of concern. Some of the statements were, "[T]ell your client I'm not afraid of him anymore, and I've made out my will. I'm not afraid to die."
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There were statements that he considered that me and my clients were bribing the judges and that there was a conspiracy to deny him of a livelihood as a doctor. And he would say, you know, "[I]f you're destroying that, you're destroying my life, and I'm going to destroy anyone who tries to destroy me."
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He-in many of the numerous phone calls that I would have with him at the start of 2002, he would make some kind of threats, and I would ask him, you know, Mr. Chehade, are you talking about physical violence? And early in the year, he would say no. But as the summer wore on, I would ask that, and he would start saying, "[W]ell, I don't know, every man has his limits, and I don't know what mine are."
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At that point [where appellant said, "I'm not afraid to die, I've made out my will"] with the other statements he had made in his pleadings, I came to the point that I was very concerned about where he was going. What I took to be threats were becoming stronger and stronger.Roberts testified that based on the phone conversations, emails, and pleadings, he was concerned appellant's case "might evolve into violence." He said he took appellant's comment that he had prepared a will to mean that appellant was preparing for death. He understood the comments to mean there would be "some kind of violence." Further, when asked if he took the statement about "destroying anyone" to be a threat to inflict some kind of bodily injury, Roberts said he did, and he assumed it could include "killing, some type of violence." Appellant testified and denied that he intended to threaten Roberts. He said he had felt depressed and "wanted to commit suicide." Appellant admitted calling Roberts and sending emails. However, appellant said that he did not send the emails in their entirety, saying, "I sent some of it but not all of it." However, he identified the email address from which the email was sent as his email address. Appellant said he had difficulty with the English language and explained when he referenced a "two-way street," he meant that what "they" were doing "to others, sometimes it's going to be done to them one day by somebody else." Discussion Appellant made phone calls and sent writings to Roberts that Roberts believed were threats to inflict bodily injury. Appellant's intent to "harass, annoy, alarm, abuse, torment, or embarrass" Roberts may be inferred by the circumstances. See Blount, 961 S.W.2d at 284. Although appellant argues no threat was made to kill, Roberts testified he interpreted statements to be a threat of violence, which could include killing. Viewing the evidence in the light most favorable to the prosecution, we conclude the trier of fact could have found the essential elements of harassment under section 42.07(a)(2) beyond a reasonable doubt. See Sanders, 119 S.W.3d at 820. Although appellant denied intending to threaten Roberts, it was up to the jury to determine credibility of the witnesses and resolve any differences. See Jones, 944 S.W.2d at 647, 648. It was also up to the jury to determine whether a reasonable person would view the statements as a threat. See Manemann, 878 S.W.2d at 338. Accordingly, viewing all the evidence in a neutral light, we conclude the evidence of appellant's guilt is not too weak to support the finding of guilt beyond a reasonable doubt; likewise, we conclude the evidence contrary to the verdict-appellant's denial of an intent to threaten Roberts-is not so strong that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484-85. Appellant argues the State did not meet its burden under section 42.07(a)(4). However, the State needed only to prove that appellant harassed Roberts under either section 42.07(a)(4) or section 42.07(a)(2). And because we conclude the evidence is sufficient under section 42.07(a)(2), we need not address appellant's contention it was insufficient under section 42.07(a)(4). See Gutierrez, 85 S.W.3d at 449-50. We overrule appellant's first and second points of error.