Petition for Writ of Certiorari — Lewis v. Texas

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~ Supreme Ceuwt, U.S.

(\ FILED

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No, O02 1660 MAY 12 2003

“BEE OF EE ERK

In The

Supreme Court of the Anited States

FRANK ALEXANDER LEWIS,

Petitioner,

versus

. THE STATE OF TEXAS,

Respondent.

On Petition For A Writ Of Certiorari

To The Texas Second Court Of Appeals

At Fort Worth, Texas

PETITION FOR WRIT OF CERTIORARI

DANNY D. BURNS

Counsel of Record

115 North Henderson Street

Fort Worth, Texas 76102-1940

817/870-1544 FAX 870-1589

State Bar No. 03443800

Attorney for Petitioner Lewis

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 ve

OR CALL COLLECT (402) 342-2831 - V4

ISSUES PRESENTED

DOES THE PROHIBITION AGAINST DOUBLE JEOP-

ARDY PREVENT THE STATE FROM PROSECUTING

THE DEFENDANT A SECOND TIME FOR THE SAME

CONDUCT WHEN THE ACT, THE INTENT, AND

THE SUBSTANCE OF THE OFFENSE HAD BEEN

PREVIOUSLY PROSECUTED IN A LESSER IN-

CLUDED OFFENSE BUT ONLY THE NAME OF

THE INJURED PARTY ALLEGED HAD BEEN

CHANGED?

IS THE TEXAS STALKING STATUTE SO VAGUE

THAT ITS ENFORCEMENT IMPINGES UPON PRO-

TECTED FIRST AMENDMENT RIGHTS?

CERTIFICATE OF INTERESTED PARTIES

The undersigned counsel of record for FRANK ALEX-

ANDER LEWIS certifies that this is a civil case (a writ of

habeas corpus) and that the persons having an interest in

the outcome of this case are the Appellee, the United

States of America and the Appellants, co-defendants and

counsel:

JUDGES: PETITIONER:

Hon. Everett Young Frank Alexander Lewis

297th Judicial District Court

401 W. Belknap

5th Floor

Fort Worth, Texas 76196

TRIAL COUNSEL:

Hon. Fred Cummings, and Rebecca Denham

Prosecuting Attorneys

Tarrant County District Attorney’s ee

401 West Belknap Street

Fort Worth, Texas 76196

Hon. Danny D. Burns

115 North Henderson Street

Fort Worth, Texas 76102

APPELLATE COUNSEL:

Tim Curry, District Attorney

Hon. Charles M. Mallin & Edward L. Wilkinson

Assistant District Attorneys, Appellate Section

401 West Belknap Street

Fort Worth, Texas 76196-0201

deat tai wads ei Shall ticle tad

CERTIFICATE OF INTERESTED

PERSONS — Continued

Danny D. Burns, Appellate Counsel for Defense

115 North Henderson Street

Fort Worth, Texas 76102-1940

TABLE OF CONTENTS

Page

Bg | en One i

CERTIFICATE OF INTERESTED PARTIES ........... ii

Ee SE ST eaivestbbscitinesinninanvenionennieuinns iv

TABLE OF AUTHORITIES ......cccsccrssccccevescccsscoevesoese Vv

Ee RINE TT. siinensicevicececncsisneianscicniactnnnsminoven 1

FE IEE bnisshcbinntncinciunisslipsicisinnisiiddeainniientiniiinnniice 2

STATUTORY PROVISIONS INVOLVED.................. 2

TATA ET Se COE CEE CI israicvvsseccsveseverssscsovesases 6

A. Course of Proceedings Below..................csceeee 6

B. TRO ROIE CE FI oe cicicvisccscsscnscvscvonssverveesennss 6

REASONS FOR GRANTING THE WRIT ..........000000 9

I. DOES THE PROHIBITION AGAINST DOU-

II.

BLE JEOPARDY PREVENT THE STATE

FROM PROSECUTING THE DEFENDANT A

SECOND TIME FOR THE SAME CONDUCT

WHEN THE ACT, THE INTENT, AND THE

SUBSTANCE OF THE OFFENSE HAD BEEN

PREVIOUSLY PROSECUTED IN A LESSER

INCLUDED OFFENSE BUT ONLY THE

NAME OF THE INJURED PARTY AL-

LEGED HAD BEEN CHANGED?...................

IS THE TEXAS STALKING STATUTE SO

VAGUE THAT ITS ENFORCEMENT IM-

PINGES UPON PROTECTED FIRST AMEND-

TE RIE. siiiseenssicincnsaniinvsonnsdnateoreniendes

CONCLUSION AND PRAYER. .......ccccccscessescesseecseecees

TABLE OF AUTHORITIES

Page

CASES:

Blockburger v. United States, 284 U.S. 299, 52 S.Ct.

BBO, ‘76 Ue Td. DOG CUED avionccivesesicsvccccevatsessccniosnsdsssscs 9,13

Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53

L.Ed.2d 187 (1977)........cscssssesesesesscseseecssssscecsseeesenseneseeees 13

Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31

BOE De GO CTI ac civvritestnnrnrcositeienssennatemnsccmnnnn 15

Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109

Fb. Bk BS CID cicsvicisicsasisniccivsecscinivshetniviatinerssnaase 12

Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct.

SIDE, BB 1. TE. De BRS CITED ncircvrciverscosisorsstavesvennionns 14,15 ~

Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912,

GS 1 GD BOG ATT wie seceissicenccnerssesicaviiovenivncnntiinmes 9

Loftin v. State, 45 S.W.3d 649 (Tex.Crim.App. 2001)....9, 11

Long v. State, 931 S.W.2d 285 (Tex.Crim.App. 1996)....14, 16

Phillips v. State, 787 S.W.2d 391 (Tex.Crim.App.

TOD acnciistcvsninsicteeniubiesianinciinininiianmad aan aaeaacaie 13

Rahmani v. State, 748 S.W.2d 618 (Tex.App. —

Houston [1st Dist.] 1988) PDR. ref’d..................cseesseeees 15

United States v. Dixon, 509 U.S. 688, 113 S.Ct.

2EED, 195 L.Ed. Bd GEG CAGOS) on coiccevcccsccvsicevcvsvesoessves 12,13

United States v. Grubbs, 829 F.2d 18 (8th Cir. 1987)........ 12

United States v. Smith, 690 F.2d 748, 694 F.2d 724

(9th Cir. 1982), cert. den., 75 L.Ed.2d 793, 103

BEER, BG CI inne nese cecstisvnssssnntatentsevsemiactinneiouioesiats 12

TABLE OF AUTHORITIES — Continued

United States v. Stricklin, 591 F.2d 1112 (5th Cir.

1979), reh. den., 598 F.2d 620, cert. den., 444

U.S. 963, 62 L.Ed.2d 375, 100 S.Ct. 449 (1979) ............ 12

CONSTITUTION OF THE UNITED STATES:

Pret AE oa aiccssecisonsinsnsceuninsctetianns 13, 14, 15, 16

FE ROI acesssstavsincrsonsviacniasinti 2, 11, 12, 13

Blacity DINO oesscesscssssintinnstiesianniaidslanemaanamaann 2

Fourteenth: Amendment’. ......occsccsevscesvesesseseseessvonsssess 3, 11, 13

STATUTES:

Federal

BB WBS. FG ieseccevsinsncsinsiiumintiontnteerntiaaaaaell 12

Texas Penal Code

EEO GIG vers nsznncisrestrvinceseseneantnbconaseanedabiakincelcaaan aaa 4

RN GPU oissneinesccivneesceuntatananenceaianemicnaannanenens 3, 15, 16

APPENDIX .

1. Opinion on States Petition for Discretionary

BIG necicsonenieniinveeundirinipieadsinvainennniacninamamaalalial App. 1

2. SeacgmMent Or FULY VOTE .....0crcccrecevsvesscensccovesseens App. 26

TIE ines siscenesinnsicepiieisinnchsiocebnireseaialinialinaniahiaiianate App. 31

4. Official Notice from Court of Criminal Appeals —

RE OE Fi sc ptesnishsistatenignindiintinaniaae App. 36

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE JUSTICES OF THE SUPREME

COURT:

The Petitioner respectfully prays that a Writ of

Certiorari issue to review the final decision of the Texas

Second Court of Appeals in this case. The State Court

Petition for Discretionary Review was denied by a post-

card notification on February 12, 2003.

OPINIONS BELOW

The Texas Second Court of Appeals issued its first

unpublished opinion in this case on June 27, 2002 in

which the Court found a double jeopardy violation but

found it to be harmless beyond a reasonable doubt. A

timely filed Motions for Rehearing from both the State and

the Defense were overruled on August 1, 2002. Both the

State and the Defense filed Petitions for Discretionary

Review to the Texas Court of Criminal Appeals. The Texas

Second Court of Appeals exercised its discretion under

Rule 50 of the Texas Rules of Appellate: Procedure, with-

drew the June 27, 2002 opinion and issued an opinion

finding no double jeopardy. The Texas Second Court of

Appeals issued the second, now published opinion on

September 9, 2002, with a dissenting opinion by Justice

Dauphinot. No Motion for Rehearing was filed on the

second opinion. The Petitioner filed a timely Petition for

Discretionary Review to the Texas Court of Criminal

Appeais in Austin, Texas. On February 12, 2003, the Texas

Court of Criminal Appeals denied by a postcard notifica-

tion the application for a Petition for Discretionary

Review. This Application for Writ of Certiorari in a crimi-

nal case is due to be filed on or before May 12, 2003.

JURISDICTION

This Honorable Court has jurisdiction to review a

final decision of a court of appeals in which a decision

could be had pursuant to 28 U.S.C. §1257 and 28 U.S.C.

§2104.

STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the

United States of America, which reads as follows:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a pre-

sentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; nor shall any person be subject

for the same offense to be twice put in jeopardy of

life or limb; nor shall be compelled in any crimi-

nal case to be witness against himself, nor be de-

prived of life, liberty, or property, without due

process of law; nor shall private property be

taken for public use, without just compensation.

The Sixth Amendment to the Constitution of the

United States of America, which reads as follows:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein

er nep Fate Re eRe

the crime shall have been committed, which dis-

trict shall have been previously ascertained by

law, and to be informed of the nature and cause

of the accusation; to be confronted with the wit-

nesses against him to have compulsory process

for obtaining witness in his favor, and to have

the Assistance of Counsel for his defense.

The Fourteenth Amendment to the Constitution of the

United States of America, which reads as follows:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they shall abridge the privileges or im-

munities of citizens of the United States; nor

shall any State deprive any person of life, liberty, ‘

or property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

The Texas stalking statute is §42.072 of the Texas

Penal Code:

(a) A person commits an offense if the per-

son, on more than one occasion and pursuant to

the same scheme or course of conduct, including

following the other person, that:

(1) the actor knows or reasonably be-

lieves the other person will regard as threaten-

ing:

(A) bodily injury or death for the other

person;

(B) bodily injury or death for a mem-

ber of the other person’s family or house-

hold; or

against the other person’s property;

(2) causes the other person or a member

of the other person’s family or household to be

placed in fear of bodily injury or death or fear

that an offense will be committed against the

other person’s property; and

(3) would cause a reasonable person to

fear:

(A) bodily injury or death for himself

or herself;

(B) bodily injury or death for a mem-

ber of the person’s family or household, or

against the other person’s property;

(b) an offense under this section is a Class

A misdemeanor, except that the offense is a fel-

ony of the third degree if the actor has previously

been convicted under this section.

and “member of a household” have the meanings

assigned by Chapter 71, Family Code.

The Texas harassment statute is §42.07 of the Texas

Penal Code:

(a) A person commits an offense if, with in-

tent to harass, annoy, alarm, abuse, torment, or

embarrass another, he:

(1) initiates communication by telephone

or in writing and in the course of the commu-

nication makes a comment, request, sugges-

tion, or proposal that is obscene; =

(2) threatens, by telephone or in writing,

in a manner reasonably likely to alarm the

person receiving the threat, to inflict bodily in-

jury on the person or to commit a felony

against the person, a member of his family, or

his property;

(3) conveys, in a manner reasonably

likely to alarm the person receiving the report,

a false report, which is known by the conveyor

to be false, that another person has suffered

death or serious bodily injury;

(4) causes the telephone of another to

ring repeatedly or makes repeated telephone

communications anonymously or in a manner

reasonably likely to harass, annoy, alarm,

abuse, torment, embarrass, or offend another;

(5) makes a telephone call and inten-

tionally fails to hang up or disengage the con-

nection, or

(6) knowingly permits a telephone under

his control to be used by a person to commit an

offense under this section.

(b) For purposes of Subsection (a)(1), “ob-

scene” means containing a patently offensive de-

scription 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. In this

section, “family” has the meaning assigned by

Section 71.003, Family Code.

B misdemeanor.

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition Below.

The Petitioner Mr. Frank Alexander Lewis was

indicted for the offense of Stalking with a prior misde-

meanor offense alleged for enhancement to a third degree

felony. The offense was alleged to have occurred on or

about November 23, 1999, December 18, 1999, June 25,

2000, July 4, 2000, and July 6, 2000, all pursuant to the

same scheme or course of conduct. (TR., p. 3-5)

The Defendant entered a plea of not guilty. The jury

trial was held in the 297th Judicial District Court of

Tarrant County, Texas. (TR., p. 4) The Petitioner Mr.

Frank Alexander Lewis was found guilty as charged and

the Jury assessed punishment at ten (10) years in the

Institutional Division of the Texas Department of Criminal

Justice and a ten thousand dollar fine, the maximum

sentence for a third degree felony. (Appendix, Judgment

and Sentence) Petitioner Mr. Frank Alexander Lewis

timely filed his notice of appeal.

B. Statement of Facts.

Mr. Lewis and Susan Charles first met sometime

around March of 1993. (R., Vol. 4, p. 150) The first date did

not turn out very well since an old girlfriend of Mr. Lewis

happened to work at the Outback Steakhouse where they

went to eat. (R., Vol. 4, p. 151) They saw one another on

and off for the next couple of years. (R., Vol. 4, p. 153)

During their relationship they became intimate. (R., Vol. 4,

p. 155) Susan Charles testified that she tried to break it

off with Frank Lewis around 1994 or 1995 and she stopped

going out with her friends in order to avoid contact with

Frank Lewis. (R., Vol. 4, p. 154-155) She testified that she

had to change her telephone number over 25 times be-

tween 1994 and 1995. (R., Vol. 4, p. 160-161) She admitted

however, to telling Frank Lewis in a 1998 telephone

conversation that she was not saying that their relation-

ship was over. (R., Vol. 5, p. 64) She further admitted to

calling Frank Lewis so often in 1995 or 1996 that he had

to have a block placed on his phone to keep her from

calling him at his house. (R., Vol. 5, p. 65) Mr. Frank Lewis

went out of State on a probation case and contact stopped

between June and November, 1999. (R., Vol. 4, p. 168) In

1999 Susan Charles started receiving telephone calls from

Frank Lewis again. (R., Vol. 4, p. 164-165) When she was

working at Auto Trader’s she started getting messages on

her voice mail. (R., Vol. 4, p. 166) When she turned off her

voice mail, she alleged that Frank Lewis would leave

pornographic messages on other employees’ phones. (R.,

Vol. 4, p. 166) She never produced another employee or

explained how he would have gotten their numbers. She

testified that she was afraid that he would now hurt her

because last time he got caught. (R., Vol. 4, p. 168) She

testified that his messages left on her phones ranged from

“I love you” to “I'm going to make you pay, I’m going to

hurt you, I’m going to kill you.” (R., Vol. 4, p. 169) She

listened in January, 2000 to a tape recording of Frank’s

voice played for her by a police detective from the calls Mr.

Reed had recorded in December, 1999. (R., Vol. 4, p. 104-

105; 182-184) The phone calls were placed to a Mr. Robert

Reed at phone number 817-467-5432. (R., Vol. 4, p. 33-39)

Mr. Reed taped the calls and turned them over to a detec-

tive in order to file telephone harassment against Mr.

Lewis. (R., Vol. 4, p. 38-39) These are the same telephone

calls for which Mr. Lewis was convicted of telephone

harassment against Mr. Reed in cause number 0774806.

(R., Vol. 4, p. 39, 51) From January to May of 2000 the

aa aia

calls were not as bad; she was getting used to them. (R.,

Vol. 5, p. 138-15) She received some voice mails at the end

of June, 2000 at her office. (R., Vol. 5, p. 14-15) On one of

those tapes she heard Frank Lewis’ voice say “you’re going

to be done, bitch” and this made her scared. (R., Vol. 5, p.

18-19) Then on July 4, 2000, she received a voice mail

saying that she had messed up his life and now she was

going to have to spend the rest of her life with him. (R.,

Vol. 5, p. 22)

The Defendant testified to repeated calls from Susan

Charles and to her exaggerations. For example, she

reported to the police that Mr. Frank Lewis had threat-

ened to sexually molest her father when he had told her

“fuck her father.” (R., Vol. 8, p. 59) Susan Charles called

his house starting in 1997 and on hundreds of times and

would usually hang up when he or his answering machine

answered. (R., Vol. 8, p. 59-60) In the end when she would

call and leave a message, Frank would re-record the

message and answer her allegations and then call and

play them back to her. (R., Vol. 8, p. 83-85) |

The Defense presented other witnesses regarding

Susan Charles’ harassment of Frank Lewis.

After arguments of counsel, the jury returned a guilty

verdict. A further punishment hearing was held and the

jury returned a sentence of ten (10) years in the institu-

tional division of the Texas Department of Corrections and

a $10,000.00 fine.

REASONS FOR GRANTING THE WRIT

There are special and important reasons for granting

the writ. This Honorable Court should grant certiorari

because this case involves an important interpretation of

Fifth Amendment double jeopardy law. Under Harris v.

Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054

(1977) greater and lesser included offenses are treated as

the same for double jeopardy purposes. The Texas Appel-

late Courts found that since the statutory elements of the

allegations in the indictment are different, the Petitioner

Mr. Lewis could twice be tried and punished for the exact

same conduct. The State used the same conduct, an

attempt to place telephone calls to Susan Charles but

which calls went to a third party who had her old phone

number, to prosecute Mr. Lewis for telephone harassment

of Mr. Reed and when the police played a recording of the

same telephone call to Ms. Susan Charles, to then prose-

cute him for the same call as stalking. It is uncontested

that this is the same call meant to be directed to Susan

Charles but which was received by Mr. Read. The State

was required under the stalking statute to prove more

than one act in a common scheme or course of conduct to

prove stalking. The Texas Second Court of Appeals has

decided that under Blockburger v. United States, 284 U.S.

299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), if one element or

claim is different, then there is no double jeopardy, ignor-

ing the State’s own jurisprudence and that of this Court in

Harris v. Oklahoma, 433 U.S. 682. The Texas Court of

Criminal Appeals holds that a crime is a lesser included

offense if proof of the lesser offense is included within the

proof necessary to establish the offense. Loftin v. State, 45

S.W.3d 649 at 651 (Tex.Crim.App. 2001) The harassment

statute and the stalking statute are neighbors in the Penal

Code and seek to punish the same harm. The fact that the

exact same conduct to the letter was used to obtain an

harassment conviction when Mr. Reed received the call

and then to obtain as a matter of the proof the stalking

conviction against Susan Charles places Mr. Lewis in

jeopardy twice for the same conduct. This Court should

review the failure of the Texas Courts properly to apply

this Court’s case law in the double jeopardy field of juris-

prudence.

A second special and important reason for granting

the writ is whether the Texas stalking statute is so vague

and imprecise as to impinge upon protected First Amend-

ment rights. The statute requires no intent to commit an

offense, merely an intent to engage in conduct that the

actor knows or reasonably believes the other person will

regard as threatening to themselves or a family member.

Under this broad language an abortion doctor is guilty of

stalking millions of anti-abortionists. The doctor is know-

ingly engaging in conduct, performing abortions, that he

reasonably believes, due to the protests and calls which he )

receives, will cause another person to fear injury — an

abortion to a family member — or death — to the fetus. A

newspaper editorial which endorses abortion commits the

same offense. Someone marching in support of going to

war commits the same offense. There are other examples

of how this statute could be abused and could very well, if

the prosecution wished to use it, chill free speech and

assembly rights. This statute still does not pass constitu-

tional muster and this Court should grant review.

DOES THE PROHIBITION AGAINST DOUBLE

JEOPARDY PREVENT THE STATE FROM PROSE-

CUTING THE DEFENDANT A SECOND TIME FOR

THE SAME CONDUCT WHEN THE ACT, THE IN-

TENT, AND THE SUBSTANCE OF THE OFFENSE

HAD BEEN PREVIOUSLY PROSECUTED IN A

LESSER INCLUDED OFFENSE BUT ONLY THE

NAME OF THE INJURED PARTY ALLEGED HAD

BEEN CHANGED?

The Texas Courts have ignored the fact that the

evidence in this case establishes that for one act, with one

intent, with one intended recipient Mr. Lewis has been

punished twice. The Texas Courts have ignored not only

this Court’s established law which prohibits the prosecu-

tion of both a lesser included offense and the greater

offense but its own law which defines a lesser included

offense. The highest court of criminal appeals in Texas, the

Texas Court of Criminal Appeals, defined a lesser included

offense as not only one that is contained within the defini-

tion of the greater offense but also if the proof of the lesser

offense is included within the proof necessary to establish

the greater offense. Loftin v. State, 45 S.W.3d 649 at 651

(Tex.Crim.App. 2001) Harassment constitutes a lesser

offense of stalking under either definition. The elements of

harassment as alleged in the case involving Mr. Reed can

be melded into the stalking allegations against Ms.

Charles. This is precisely the type of-multiple punish-

ments for the same conduct which the Fifth Amendment

double jeopardy protections seek to prevent.

A defendant may not twice be placed in jeopardy for

the same offense. CONSTITUTION OF THE UNITED

STATES, Fifth and Fourteenth Amendments. Prosecution

for a lesser included offense and sentencing on both counts

would violate the double jeopardy clause of the Fifth

Amendment to the United States Constitution. United

States v. Sperling, 560 F.2d 1050 (2nd Cir., 1977); United

States v. Smith, 690 F.2d 748, 694 F.2d 724 (9th Cir.,

1982), cert. den., 75 L.Ed.2d 793, 103 S.Ct. 1435 (1983);

see also United States v. Stricklin, 591 F.2d 1112 (5th Cir.,

1979), reh. den.. 598 F.2d 620, cert. den., 444 U.S. 963, 62

L.Ed.2d 375, 100 S.Ct. 449 (1979). Double jeopardy pro-

tects against multiple punishments for the same offense

even when the sentences are to run concurrent if there are

additional consequences attached to the offenses such as

the $50.00 mandatory special assessment and the lesser

included offense of conspiracy under 21 U.S.C. § 846

should be vacated. United States v. Grubbs, 829 F.2d 18

(8th Cir., 1987).

In United States v. Dixon, 509 U.S. 688, 113 S.Ct.

2849, 125 L.Ed.2d 556 (1993), the United States Supreme

Court held that a finding of criminal contempt for violat-

ing court orders barred subsequent criminal prosecution

for the same conduct under the Double Jeopardy clause.

Id. at 696-99, 113 S.Ct. at 2856-57. The Dixon rationale

applies to the case of Mr. Lewis. While contempt contains

different elements of proof than an underlying criminal

offense, the same conduct element prevented the subse-

quent prosecution of the criminal offense under double

jeopardy protections. The Fifth Amendment of the United

States Constitution provides three separate guarantees:

(1) protection against a second prosecution for the same

offense after acquittal; (2) protection against a second

prosecution for the same offense after conviction; and (3)

protection against multiple punishments for the same

offense. In 1993 this Court overruled Grady v. Corbin, 495

U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) and

re-adopted for successive prosecutions protection the

“same-elements” test set out in Blockburger v. United

States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 2856,

125 L.Ed.2d 556, 568 (1993) The Blockburger test requires

inquiry into whether the second offense contains an

element not contained in the first; if it does not, double

jeopardy bars a successive prosecution. Conversely, if an

element of the second offense is not required to prove the

first, there is no double jeopardy. The Texas Court of

Criminal Appeals adopted the Blockburger test in Phillips

v. State, 787 S.W.2d 391, 393 (Tex.Crim.App. 1990). Con-

ceptually, the state and federal constitutional provisions

are identical. Phillips, 787 S.W.2d at 393 n. 2. The Dixon

opinion, however, still utilized the same conduct test. The

double jeopardy clause of the Fifth Amendment to the

United States Constitution provides that no person shall

“be subject for the same offense to be twice put in jeopardy

of life or limb.” This provision is applicable to the states

through the Fourteenth Amendment. See, e.g., Brown v.

Ohio, 482 U.S. 161, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187

(1977). The present case with Mr. Lewis implicates the

third guarantee as applied in Dixon. This Honorable Court

should grant review so that the Court can resolve whether

the same conduct protections of the Fifth Amendment

survive the Blockburger test.

II.

IS THE TEXAS STALKING STATUTE SO VAGUE

THAT ITS ENFORCEMENT IMPINGES UPON

PROTECTED FIRST AMENDMENT RIGHTS?

The Texas stalking statute relies solely on the reaction

of the third party to create the offense. This Honorable

OOO oO

Court, and the Texas Court of Criminal Appeals, recog-

nized that the reaction of the person hearing the speech

cannot constitutionally be a source of criminal liability.

Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct.

2294, 2298-99, 33 L.Ed.2d 222 (1972); Long v. State, 931

S.W.2d 285, 287 (Tex.Crim.App. 1996) The First Amend-

ment protections severely suffer under this statute. The

statute requires no intent to commit an offense, merely an

intent te engage in conduct that the actor knows or rea-

sonably believes the other person will regard as threaten-

ing to themselves or a family member. Under this broad

language an abortion doctor is guilty of stalking millions of

anti-abortionists. The doctor is knowingly engaging in

conduct, performing abortions, that he reasonably be-

lieves, due to the protests and calls which he receives, will

cause another person to fear injury — an abortion to a

family member — or death — to the fetus. A newspaper

editorial which endorses abortion commits the same

offense. Someone marching in support of going to war

commits the same offense. There are other examples of

how this statute could be abused and could very well, if

the prosecution wished to use it, chill free speech and

assembly rights. Criminal statutes must be sufficiently

clear, and certain in order to allow a citizen to know what

conduct is prohibited and to protect against unconstitu-

tional infringement of free speech or they are unconstitu- '

tionally vague. Grayned v. City of Rockford, 408 U.S. 104, |

108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). |

Where First Amendment freedoms are implicated, the law ,

must be sufficiently definite to avoid chilling protected

expression. Id. If an act implicates First Amendment

guarantees, the doctrine of vagueness demands a greater

degree of specificity than in other contexts. Grayned, 408

U.S. at 108, 92 S.Ct. at 2298-99. A criminal law may be

= VE ees

held facially invalid even though a defendant’s conduct

may be properly criminalized and, therefore, it may not be

unconstitutional as applied to a defendant’s conduct.

Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 1105,

31 L.Ed.2d 408 (1972). Even if Mr. Lewis’ conduct may be

properly criminalized, the statute in this case must still

fall because of the impact on First Amendment rights. The

language of the 1997 statute is unconstitutionally vague.

The Texas stalking statute fails to notify a reasonably

intelligent person of what conduct may violate the statute.

There is no reasonable person standard applied in the first

portion of the statute. The statute provides that a person

can be convicted for engaging in conduct which “the actor

knows or reasonably believes the other person will regard

as threatening.” This clearly encompasses free speech.

Every stree< corner preacher is guilty of stalking if, know-

ing his auclience will be the same or nearly the same every

morning, he or she preaches hellfire and damnation

sermons to the sinful lost souls passing his way. The

citizen is subject, not to objective conduct but rather to the

foibles of a third party. It could also be an offense under

the statute for a person knowingly to engage in conduct

that would cause a reasonable person to fear bodily injury

or death. Tex. Penal Code Ann. § 42.072(a)(3)(A). The only

reasonable person standard is in the second prong of the

statute. The vagueness problem pervades the statute. A

statute, even if clear and precise, is overbroad if in its

reach it prohibits constitutionally protected speech or

conduct. Grayned, 408 U.S. at 114, 92 S.Ct. at 2302;

Rahmani v. State, 748 S.W.2d 618, 621 (Tex.App. — Hous-

ton [1st Dist.] 1988) PDR. ref’d.

The current stalking statute prohibits constitutionally

protected conduct of freedom of association and travel. The

current stalking statute specifically prohibits conduct that

may be interpreted by a third party as threatening. This is

clearly overbroad in its application. Conduct does not lose

First Amendment protection merely because the actor

intends to annoy the recipient. The statute does not even

require that the actor even intend that his or her conduct

be perceived as threatening bodily injury or death by the

third party. The Texas Court of Criminal Appeals in

striking down the first stalking statute in Long v. State,

931 S.W.2d 285, 287 (Tex.Crim.App. 1996) suggested that

there should be a nexus between the two or more instances

of conduct so that the stalker is not denied notice of what

is prohibited. The Texas Legislature merely required that

the acts of conduct be done in the same scheme or course

of conduct. This limits nothing nor did it address the First

Amendment concerns. See Tex. Penal Code Ann. § 42.072.

This Honorable Court should grant certiorari in order to

review the vagueness challenges of the Texas Stalking

statute as it impinges upon First Amendment freedoms.

CONCLUSION AND PRAYER

The issues raised in this Application for Writ of

Certiorari raise very substantial and important questions

of Constitutional law which affect all citizens. This Honor-

able Court should grant Certiorari to the Texas Second

Court of Appeals to resolve these questions. Accordingly,

Petitioner Frank Alexander Lewis respectfully prays that

the application for certiorari to the Texas Court of Appeals

sitting in Fort Worth, Texas issue herein and for such

other and further relief to which he may be justly entitled.

Respectfully submitted,

- DANNY D. BURNS

115 North Henderson Street

Fort Worth, Texas 76102-1940

(817) 870-1544, telephone

(817) 870-1589, facsimile

State Bar No. 03443800

Member. of the Supreme Court Bar

Attorney for Petitioner Lewis

App. 1

[LOGO]

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-01-120-CR

FRANK ALEXANDER LEWIS APPELLANT

THE STATE OF TEXAS STATE

FROM THE 297TH DISTRICT COURT

OF TARRANT COUNTY

OPINION ON THE STATE’S PETITION

FOR DISCRETIONARY REVIEW

Pursuant to rule of appellate procedure 50, we have

reconsidered our opinion upon the State’s petition for

discretionary review. TEX. R. App. P. 50. We withdraw our

June 27, 2002 opinion and judgment and substitute the

following.

Appellant Frank Alexander Lewis appeals his convic-

- tion and ten-year sentence for stalking. In five points,

Appellant complains his conviction violates the double

jeopardy clause because the present conviction was based

on the same behavior for which he had been previously

convicted of telephone harassment involving another

victim, the evidence is legally and factually insufficient to

support his conviction for stalking, the trial court erred in

overruling his objection to testimony about his extraneous

App. 2

conduct, and the stalking statute is an unconstitutional

infringement on his right to freedom of speech. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Susan Charles and Appellant first went out in 1992

and would talk or go to dinner occasionally. Later, the two

became more serious and dated for approximately two

years. After Appellant became more and more possessive

and physically abusive, however, Charles began to avoid

him. For the next four years, Appellant called, followed,

and harassed Charles relentlessly. Appellant went to her

apartment on countless occasions, knocking on the door or

windows and yelling at Charles to let him in. Appellant

called Charles and her coworkers at work and faxed

pornographic materials to Charles’ attention at work.

Charles changed her phone number over twenty-five

times and kept an unlisted number. She moved frequently

and removed her name from her car title, insurance,

utilities, and credit cards. However, Appellant would

eventually relocate her and would start harassing her

again. Appellant constantly left messages on Charles’

phone threatening to kill her, threatening her family, or

threatening to mail a videotape to her family that he

supposedly had of them engaging in sexual intercourse.

Charles’ tires were slashed on several occasions and her

apartment patio was vandalized. Charles filed numerous

reports with the Arlington Police Department and had

officers closely patrol her apartment complex. Officers

arrested Appellant at her apartment complex for public

intoxication and officially warned Appellant not to return

to that location. Subsequently, Appellant was arrested for

criminal trespass for failing to comply with the warning.

App. 3

Appellant was also prosecuted for telephone harassment

after Robert Reed, who was unfortunate enough to have

been assigned one of Charles’ former telephone numbers,

reported Appellant to the police for continuously calling

and leaving obscene messages for Charles or threatening

Reed himself.

Finally, in July of 2000, as Charles left work, she

noticed Appellant following her. Charles used her cell

phone to call the police and pulled into a grocery store

parking lot. Charles went inside and Appellant waited

outside in his car. The police arrived and Appellant fled.

After a lengthy high-speed chase, Appellant stopped on a

bridge, climbed on top of his car, and acted as though he

was going to jump off the bridge. Officers eventually

grabbed Appellant and arrested him.

DOUBLE JEOPARDY

Appellant’s first point alleges his conviction for stalk-

ing violates the double jeopardy provision of the constitu-

tion because he was convicted of telephone harassment in

1999 for the same conduct on which his current conviction

is partially based. He asserts that telephone harassment is

a lesser included offense of stalking. In 1999, Appellant

placed several phone calls to a number that formerly

belonged to Charles, but had been reassigned to Reed.

Appellant left messages threatening both Charles and

Reed, and called Reed anonymously numerous times. The

instruments charging Appellant with both telephone

harassment in 1999, and stalking here, alleged the same

conduct as the basis for both offenses.

The double jeopardy clause of the United States

Constitution provides that no person shall be subjected to

App. 4

twice having life or limb in jeopardy for the same offense.

U.S. Const. amend. V. Generally, this clause protects

against: (1) a second prosecution for the same offense after

acquittal; (2) a second prosecution for the same offense

after conviction; (3) multiple punishments for the same

offense. United States v. Dixon, 509 U.S. 688, 695-96, 113

S. Ct. 2849, 2855-56 (1993); Ex parte Herron, 790 S.W.2d

623, 624 (Tex. Crim. App. 1990) (op. on reh’g). : |

When the same act or transaction violates two statu-

tory provisions, the offenses are the same for double

jeopardy purposes if one offense contains all the elements

of the other; they are different if each offense has a unique

element. Blockburger v. United States, 284 U.S. 299, 304,

52 S. Ct. 180, 182 (1932). The elements contained in the

charging instruments, rather than the penal provisions,

are controlling in a double jeopardy analysis. State v.

Perez, 947 S.W.2d 268, 270-71 (Tex. Crim. App. 1997);

Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App.

1994). An offense is a lesser included offense if it is estab-

lished by proof of the same or less than all the facts

required to establish the commission of the offense

charged. TEX. CODE CRIM. PRoc. ANN. art. 37.09(1) (Vernon

1981). It does not matter if the charged offense can be

established on a theory that does not contain the lesser

offense; the issue is whether proof of the charged offense,

in this case, actually included proof of the lesser included

offense as defined in article 37.09. Schweinle v. State, 915

S.W.2d 17, 18 (Tex. Crim. App. 1996); Broussard v. State,

642 S.W.2d 171, 173 (Tex. Crim. App. 1982).

Here, the information in the telephone harassment

case in which Reed was the complainant alleged that (1)

Appellant made repeated telephone communications

anonymously to Reed (2) with the intent to harass, annoy,

TT |

App. 5

alarm, abuse, torment, or embarrass another. In contrast,

the indictment for stalking Charles alleged as one of six

incidents:' (1) that Appellant left a telephone message

stating that Charles “had better watch out;” (2) that

Appellant knew or reasonably believed Charles would

regard the message as threatening bodily injury or death;

(3) that the message caused Charles to fear bodily injury

or death; (4) and would have caused a reasonable person to

fear bodily injury or death; and (5) was made pursuant to

the same scheme or course of conduct as the other inci-

dents alleged in the indictment.

The elements of telephorie harassment alleged in the

1999 information tracked the statutory language in penal

code section 42.07(a)(4) and are completely different than

the elements of stalking alleged in the indictment here,

which tracked the statutory language of penal code section

42.072(a)(1A) and (a)(3A). TEX. PENAL CODE ANN.

§§ 42.07(a)X(4), 42.072(a)(1)(A), (a(3A) (Vernon 1997 &

Supp. 2002). In prosecuting Appellant for stalking

Charles, the State was not required to prove either that

Appellant made repeated anonymous telephone communi-

cations to Reed or that he did so with the intent to “har-

ass, annoy, alarm, abuse, torment, or embarrass another.”

Rather, the State had to prove that the telephone call

Appellant made wherein he stated that Charles had

’ The stalking statute requires the State to allege more than one

incident of stalking to show a scheme or course of conduct. TEX. PENAL

CopE ANN. § 42.072 (Vernon Supp. 2002). Because Appellant’s point

here, however, complains only of the one incident that arose from the

same conduct as did his telephone harassment conviction, we will not

set out the other five incidents of stalking alleged in the indictment

until later in the opinion.

App. 6

“better watch out” constituted conduct that a reasonable

person would regard as threatening bodily injury and

death or that Appellant knew or reasonably believed

Charles would regard as threatening bodily injury or

death. See TEX. PENAL CODE ANN. §§ 42.072(a)(1)(A),

(a)(3)(A).

That some of the same evidence proved both offenses

does not constitute a double jeopardy violation because

Appellant’s single act of calling Reed violated two distinct

statutes and harmed two distinct victims. The proof in the

instant case focused on Appellant’s actions toward

Charles, not his actions toward Reed. Moreover, the

telephone harassment statute required, and the informa-

tion in the telephone harassment case alleged, that Appel-

lant made repeated anonymous calls to Reed. See TEX.

PENAL CODE ANN. § 42.07(a)(4). However, in Appellant’s

trial for stalking here, the State presented evidence of only

a single telephone call placed by Appellant. Therefore, the

evidence presented in the stalking trial would not have

supported Appellant’s conviction for the lesser included

offense of telephone harassment. Because the telephone

harassment of Reed is not established by proof of the same

or less than all the facts required to establish the offense

of stalking Charles, telephone harassment is not a lesser

~ included offense of stalking in this case, nor is there a

double jeopardy violation. See TEX. CODE CRIM. PROC. ANN.

art. 37.09(1).

We further conclude that the trial court did not

otherwise err in allowing the State to introduce evidence

of the incident from which Appellant’s conviction for

telephone harassment arose even though it arose prior to

the 2001 amendment to the stalking statute. Contrary to

Appellant’s argument, in a prosecution for stalking, it is

App. 7

not error to admit evidence of incidents occurring prior to

the date alleged in the charging instrument and prior to

the effective date of the statute. See Clements v. State, 19

S.W.3d 442, 448 (Tex. App. — Houston [1st Dist.] 2000, no

pet.). Accordingly, because Appellant’s conviction for

stalking did not violate the double jeopardy clause and the

court did not err in admitting the prior incident from

which Appellant’s conviction for telephone harassment

arose, we overrule Appellant’s first point.

LEGAL AND FACTUAL SUFFICIENCY

In points two and three, Appellant argues the evi-

dence is legally and factually insufficient to support his

conviction for stalking. Specifically, Appellant argues that,

because Charles would never have heard the telephone

message threatening her if Reed had not recorded it and

the police had not played the recording for Charles, there

is no evidence of a causal connection between the alleged

offense and Appellant’s acts.

Standard of Review

In reviewing the legal sufficiency of the evidence to

support a conviction, we view all the evidence in the light

most favorable to the verdict. Cardenas v. State, 30 S.W.3d

384, 389-90 (Tex. Crim. App. 2000); Narvaiz v. State, 840

S.W.2d 415, 423 (Tex. Crim. App. 1992), cert. denied, 507

U.S. 975 (1993). The critical inquiry is whether, after so

viewing the evidence, any rational trier of fact could have

found the essential elements of the crime beyond a rea-

sonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex.

Crim. App.), cert. denied, 522 U.S. 844 (1997). This stan-

dard gives full play to the responsibility of the trier of fact

App. 8

to resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to

ultimate facts. Jackson v. Virginia, 443 U.S. 307, 319, 99

S. Ct. 2781, 2789 (1979).

In reviewing the 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 v. State, 922

S.W.2d 126, 129 (Tex. Crim. App. 1996). Evidence is

factually insufficient if it is so weak as to be clearly wrong

and manifestly unjust or the adverse finding is against the

great weight and preponderance of the available evidence.

Johnson, 23 S.W.3d at 11. Therefore, we must determine

whether a neutral review of all the evidence, both for and

against the finding, demonstrates that the proof of guilt is

so obviously weak as to undermine confidence in the

verdict, or the proof of guilt, although adequate if taken

alone, is greatly outweighed by contrary proof. Jd. In

performing this review, we are to give due deference to the

fact finder’s determinations. Id. at 8-9; Clewis, 922 S.W.2d

at 136. Consequently, we may find the evidence factually

insufficient only where necessary to prevent manifest

injustice. Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958

S.W.2d 404, 407 (Tex. Crim. App.- 1997).

Analysis

Appellant complains of the legal and factual suffi-

ciency of the evidence to support his conviction based on

the fact that Charles would not have been placed in fear

but for the police’s action of playing the taped telephone

message for her. He does not complain, however, about the

App. 9

sufficiency of the evidence to support the other five allega-

tions of stalking contained in the indictment.

In addition to the allegation involving the telephone

message left on Reed’s answering machine, the indictment

alleges: (1) on November 23, 1999, Appellant knocked on

Charles’ bedroom window, and she looked outside to see

him standing on the sidewalk about ten or fifteen feet

from her apartment; (2) on June 25, 2000, Appellant left a

telephone message for Charles stating, “You’re gonna be

done, bitch. You’re gonna be done”; (3) on July 4, 2000,

Appellant left a telephone message for Charles stating,

“You fucked up my life, now you have got to be part of it

until I die”; (4) on July 4, 2000, Appellant left a phone

message saying he would “make things even with

[Charles]” and made a reference to “an eye for an eye and

a tooth for a tooth”; and (5) on July 6, 2000, Appellant

followed Charles in a car. It appears to be Appellant’s

position that his conviction should be reversed, even if the

five incidents are supported by the evidence, so long as the

single allegation involving the telephone message on

Reed’s answering machine is not supported by legally and

factually sufficient evidence.

Courts have held, however, that evidence is sufficient

to support a conviction, even where it is insufficient to

support all the criminal incidents charged, as long as the

incidents that are proved are enough to support a verdict

that the defendant is guilty of the offense charged. See,

e.g., Cook v. State, 488 S.W.2d 822, 824 (Tex. Crim. App.

1972) (holding evidence supporting theft of one of four

animals charged was sufficient to support conviction);

State v. Weaver, 945 S.W.2d 334, 335 (Tex.App. — Houston

[ist Dist.] 1997) (holding lack of sufficient evidence to

support each of thirty-two complaints of theft did not

App. 10

override other evidence sufficient to support conviction),

aff’d, 982 S.W.2d 892 (Tex. Crim. App. 1998), cert. denied,

528 S.W.2d 830 (1999); Harrell v. State, 834 S.W.2d 540,

543 (Tex. App. — Houston [14th Dist.] 1992, pet. ref’d)

(holding evidence supported conviction for theft of aggre-

gate amount even though evidence was not sufficient to

support theft of each of eighty-three checks charged

stolen). Here, even if we agreed with Appellant’s conten-

tion regarding the telephone message the police played for

Charles, the record establishes the evidence was both

legally and factually sufficient to support the jury’s verdict

based on the other five incidents of stalking alleged in the

indictment.

The November 23, 1999 Telephone Message

First, Officer Jason Vire with the Arlington Police

Department testified he got a call on November 23, 1999

that a woman had called reporting a prowler around 3:34

a.m. Charles told the dispatcher that the prowler was

Appellant and that he would be driving either an older

model brown Cadillac or a four-door white Chevrolet Astro

van. Vire testified that he spoke to Charles, who was

angry and fearful, but that he and the other officers who

helped investigate could not find Appellant or his car on or

around the premises.

Charles testified that Appellant had awakened her

around 3:30 a.m. the night of November 23, 1999 by

knocking on her bedroom window. She looked out of her

blinds and saw Appellant standing on the sidewalk near

the edge of her patio with his hands up in the air. She

closed the blinds and called 911. After this incident,

Charles testified, she was afraid and continued receiving

App. 11

phone calls from Appellant, so she moved in with friends.

A few days thereafter, Charles further testified, she was

evicted from her apartment because someone had put

pictures up around her apartment complex of a woman

that looked like her having sexual intercourse with several

men. Written on the pictures were her full name, tele-

phone number, apartment number, and a description of

her car.

The June 25, 2000, and July 4

and 6, 2000 Telephone Messages

Officer Peggy Carr, of the Grand Prairie Police De-

partment, testified that on June 23, 2000, Charles came

into the police station appearing scared, fearful; and

nervous. Charles complained that Appellant was stalking

and harassing her by telephone. Officer Mark Taddonio

was assigned to investigate Charles’ complaints. On June

29, 2000, Taddonio met with Charles at the police station

so that she could submit a formal, written statement and

turn in recorded voice mail messages from Appellant as

evidence. After listening to the messages, Taddonio pre-

pared a probable cause warrant for Appellant’s arrest.

Taddonio also set up surveillance at Appellant’s place of

employment and at an address that he had been known to

frequent. While watching the house at which Appellant

had been seen in the past, Taddonio took pictures of cars

in the driveway, one of which was a cream-colored Lincoln

that was missing a license plate on tiie front.

Charles testified to the contents of the tapes she gave

Taddonio. In one of the messages, Appellant told Charles

that it was Christmas time, that there was an office just

like hers in Oklahoma where he lived, and that he wanted

App. 12

her to move to Oklahoma with him. In other messages,

Appellant mentioned her father and told her he knew both

of her sisters’ children and how old they were. She testified

that she had rarely, if ever, discussed her sisters’ children

with Appellant and had no idea how he knew their ages.

Charles perceived these messages as threatening to her

and to her family.

Charles further testified to contents of other tape-

recorded messages that Appellant had left in which he

would take recordings of her voice and dub in his own

voice responding to her. Appellant would add comments

while he was playing the tape recordings of Charles’ voice

and his own voice. In one of these tapes, Appellant told

Charles, “You’re going to be done, bitch.” Charles testified

that she was scared Appellant was “going to come after

me” or was going to “[eJither kill me or as he told me he

was going to do, chain me to a mobile home on his land

west of the metroplex.” Charles stated Appellant told her if

he chained her up no one would be able to find her. Appel-

lant told her he would chain her up to teach her a lesson

about what a woman was supposed to do, which was to

stay at home, cook, and clean. Charles said such comments

made her feel, “scared [and] sick,” and she believed Appel-

lant had the ability to follow through with his threats.

_ Charles next testified to another message Appellant

had left at her office in which he told her she had messed

up his life and was going to have to spend the rest of her

life with him. Charles testified the message scared her

because she “thought he was going to do what he was

saying he was going to do,” which was to hurt her or to kill

her. As July approached, Charles testified she was afraid

Appellant might start following her as he had done in the

App. 13

past, “[b]ecause he always found me and he was telling me

that he was going to.”

The July 6, 2000 Incident

Charles stated that Appellant had left her a message

in July stating the time she had left her office and describ-

ing a black and w iite polka dotted dress she was wearing

that day. He also mentioned “Hemphill,” which was a road

Charles crossed on her way home. Charles was in the

habit of taking numerous exits off of the highway and

getting back on the highway, or going through residential

areas to be certain Appellant was not following her.

On July 6, 2000, as Appellant took her usual twists

and turns going home, she noticed a champagne-colored

Lincoln Town Car with no front license plate following

behind her. She was afraid it was Appellant because

Taddonio had called and described a cream-colored Lincoln

with no front license plate that was in front of the home at

the address he had under surveillance. Charles cut across

three lanes of traffic to take the next available exit and the

Lincoln followed her. Charles sped at sixty-five miles an

hour down Hulen Street in Fort Worth until she saw a

grocery store, but the car kept following. Charles then cut

across two lanes of traffic and got in the turn lane at a red

light to turn left. The Lincoln pulled directly behind her,

and in her rearview mirror she could see that Appellant

was the driver. After Charles turned left and then turned

into a grocery store parking lot, she went inside and called

the police and Appellant was arrested.

In light of this uncontroverted evidence from the

record, the evidence is both legally and factually sufficient

to sustain the jury’s verdict that Appellant is guilty of the

App. 14

offense of stalking, even if there is no causal connection

between the telephone message Appellant left on Reed’s

machine and Charles’ injuries. Because the evidence of the

five other incidents clearly supports the jury’s guilty

verdict, we need not decide whether the evidence of Appel-

lant’s phone call to Reed is legally and factually sufficient

to sustain the jury’s guilty verdict. We overrule Appellant’s

second and third points.

EXTRANEOUS CONDUCT

Appellant’s fourth point alleges the trial court erred

by overruling his objection to the admission of evidence of

his extraneous conduct that was not alleged in the indict-

ment. Specifically, Appellant argues that Charles’ testi-

mony about harassing phone calls and other acts

committed by Appellant in 1993, 1994, and 1995 consti-

tuted -an ex post facto violation of Appellant’s rights

because the stalking statute was not in effect at that time.

Appellant claims that, although he failed to object to

Charles’ testimony about Appellant’s conduct in 1993,

1994, and 1995, he requested and was given a running

objection to all testimony regarding acts that took place

prior to the time the stalking statute was enacted.

We disagree. An objection preserves only the specific

ground cited. Tex. R. App. P. 33.1(aX(1A); Mosley v. State,

983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g),

cert. denied, 526 U.S. 1070 (1999); Butler v. State, 872

S.W.2d 227, 237 (Tex. Crim. App. 1994), cert. denied, 513

U.S. 1157 (1995); see also Fierro v. State, 706 S.W.2d 310,

317-18 (Tex. Crim. App. 1986), cert. denied, 521 U.S._1122

(1997) (a general objection is not sufficient to apprise trial

court of complaint urged and thus preserves nothing for

App. 15

review). Appellant obtained a running objection after he

objected to the State’s opening argument that mentioned

telephone calls Appellant made to Reed in 1999. At no time

in the record of this trial, however, whether via a running

objection or otherwise, did Appellant object to Charles’

testimony about extraneous acts Appellant committed in

1993, 1994, and 1995. We overrule Appellant’s fourth point

because he has failed to preserve error. TEx. R. App. P.

33.1(a)(1)(A).

CONSTITUTIONALITY OF THE STATUTE

In his fifth point, Appellant complains that the stalk-

ing statute, on its face, presents an unconstitutional

infringement on the right to free speech because it is

overbroad and too vague. A statute is overbroad if, in

addition to proscribing activities that may be constitution-

ally forbidden, it sweeps within its coverage conduct that

is- constitutionally protected. Clark v. State, 665 S.W.2d

476, 482 (Tex. Crim. App. 1984). A statute is vague if it

does not give a person of ordinary intelligence a reason-

able opportunity to know what is prohibited. Grayned v.

City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298

(1972).

When reviewing the constitutionality of a statute, we

presume the statute is valid and that the legislature has

not acted unreasonably or arbitrarily in enacting the

statute. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.

Crim. App. 1978). The burden rests on the party challeng-

ing the statute to establish its unconstitutionality. Cotton

v. State, 686 S.W.2d 140, 145 (Tex. Crim. App. 1985); Ex

parte Granviel, 561 S.W.2d at 511. We uphold the statute if

we can determine a reasonable construction that will

Ree

App. 16

render it constitutional and carry out the legislative

intent. See Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim.

App. 1979).

We follow our recent holding in Sisk v. State, 74

S.W.3d 893 (Tex. App. — Fort Worth 2002, no pet.), as well

as the holdings of our sister courts, in concluding that the

current version of the stalking statute is not unconstitu-

tional. See Battles v. State, 45 S.W.3d 694, 702-03 (Tex.

App. — Tyler 2001, no pet.); Clements v. State, 19 S.W.3d

442, 451 (Tex. App. — Houston [1st Dist.] 2000, no pet.).

First, the statute is not unconstitutional because it prohib-

its conduct that causes another person to be placed in fear

of bodily injury or death. Clements, 19 S.W.3d at 451.

Conduct enjoys no first amendment protection when the

actor intends to place the recipient in fear of bodily injury

or death. See Long v. State, 931 S.W.2d 285, 290 (Tex.

Crim. App. 1996); Webb v. State, 991 S.W.2d 408, 415 (Tex.

App. — Houston [lst Dist.] 1999 pet. ref’d). Second, the

statute states that one can be guilty of stalking by engag-

ing in conduct that he knows or reasonably believes will be

regarded as threatening bodily injury or death. TEX. PENAL -

CODE ANN. § 42.072(aX(1). A person who knows of reasona-

bly believes his conduct will be regarded as threatening

bodily injury or death is necessarily on notice that his

conduct is prohibited. Clements, 19 S.W.3d at 450. Accord-

ingly, it cannot be said that the statute sweeps within its

coverage conduct that is constitutionally protected or that

the statute fails to give a person of ordinary intelligence a

reasonable opportunity to know what is prohibited. We

overrule Appellant’s fifth point.

App. 17

CONCLUSION

Having overruled all of Appellant’s points, we affirm

the trial court’s judgment.

/s/ Dixon W. Holman

DIXON W. HOLMAN

JUSTICE

PANEL B: LIVINGSTON, DAUPHINOT, and HOLMAN,

JJ.

DAUPHINOT, J. filed a dissenting opinion

PUBLISH

SEP 09 2002

DISSENTING OPINION ON THE STATE’S

PETITION FOR DISCRETIONARY REVIEW

The majority holds that the telephone harassment

offense for which Appellant was previously convicted is not

_ a lesser included offense of stalking. I must respectfully

dissent to this holding. Telephone harassment, under the

facts of this case, is a lesser included offense of stalking

because, as charged in the indictment, it is included

within the proof necessary to establish the stalking of-

fense.’

Section 42.07 of the Texas Penal Code provides in

pertinent part: ,

* See Lofton v. State, 45 S.W.3d 649, 651 (Tex. Crim. App. 2001).

App. 18

(a) A person commits an offense if, with in-

tent to harass, annoy, alarm, abuse, torment, or

embarrass another, he:

(2) threatens, by telephone, in writing,

or by electronic communication, in a manner rea-

sonably 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 household, or his property; [or]

(4) causes the telephone of another to

ring repeatedly or makes repeated telephone

communications anonymously or in a manner

reasonably likely to harass, annoy, alarm, abuse,

torment, embarrass, or offend another.’

: Appellant placed threatening calls on or about De-

cember 18, 1999. Although he intended the calls for Susan

Charles, Robert Reed received them. Appellant was

convicted of telephone harassment of Reed, although

Charles was his intended victim. It is undisputed that the

indictment in the case relies in part on the calls Reed

received. The majority points out, “The instruments

charging Appellant with both telephone harassment in

1999, and stalking here, alleged the same conduct as the

basis for both offenses.” (Emphasis added).

The State argues, and the majority holds, that be-

cause the misdemeanor information charging Appellant

* Tex. PENAL CODE ANN. § 42.07(a) (Vernon Supp. 2002).

App. 19

with telephone harassment of Reed alleged an offense

under section 42.07(a)(4), while the stalking indictment

charged an offense under sections 42.072(a)(1)A) and

(a)(3)(A) of the Texas Penal Code, the elements are com-

pletely different.* The majority maintains that because the

two charging instruments name different complainants,

allege a different number of telephone calls (repeated

versus one), and differ in the intent elements charged,

that the common telephone call and message used to

satisfy the conduct element for both the harassment and

stalking offenses do not make harassment a lesser in-

cluded offense of stalking. Respectfully, I cannot agree.

The harassment information alleges that Appellant,

“on or about the 18th day of DECEMBER 1999, did THEN

AND THERE INTENTIONALLY, WITH INTENT TO

HARASS, ANNOY, ALARM, ABUSE, TORMENT OR

EMBARRASS ANOTHER, MAKE REPEATED TELE-

PHONE COMMUNICATIONS ANONYMOUSLY TO

ROBERT REED.” The stalking indictment alleges that on

the same date, Appellant did

KNOWINGLY ENGAGE IN CONDUCT, TO WIT:

TELEPHONED AND LEFT A RECORDED

MESSAGE FOR SUSAN CHARLES ... THAT

WAS DIRECTED SPECIFICALLY AT AN-

OTHER, NAMELY, SUSAN CHARLES, THAT

THE DEFENDANT KNEW OR REASONABLY

BELIEVED THAT THE SAID SUSAN CHARLES

WOULD REGARD AS THREATENING BODILY

INJURY OR DEATH FOR SUSAN CHARLES

* Tex. PENAL CODE ANN. §§ 42.07(a)(4), 42.072(a)(1)(A), (a)(3)(A)

(Vernon 1997 & Supp. 2002).

App. 20

AND SAID CONDUCT CAUSED SUSAN

CHARLES TO BE PLACED IN FEAR OF

BODILY INJURY OR DEATH, AND SAID

CONDUCT WOULD CAUSE A REASONABLE

PERSON TO FEAR BODILY INJURY OR

DEATH FOR HIMSELF. ...

The telephone harassment statute provides four

different ways a person commits that offense.‘ The legisla-

ture did not create four different offenses by describing

multiple ways of committing telephone harassment. In the"

case before us, the misdemeanor information charging

harassment describes a violation of section 42.07(a)(4), as

the majority points out. The stalking allegation, however,

describes the same act in terms of section 42.07(a)(2), a

different manner and means of committing harassment.

Allegation of a different manner and means of committing

the same offense does not constitute allegation of a differ-

ent offense.” The harassment information and the stalking

indictment allege the same December 18th offense, not

two separate offenses. The fact that the State pled a

different manner and means of committing harassment in

the stalking indictment does not mean it pled a new

offense.’ Analogously, if a defendant were charged and

convicted under the “normal use” prong for driving while

intoxicated (DWI), he could not subsequently be tried

* See TEX. PENAL CODE ANN. § 42.07(a).

* See Price v. State, 59 S.W.3d 297, 303 (Tex. App. — Fort Worth

2001, pet. ref'd) (holding definition of “intoxicated” in the DWI statute

sets forth alternative means of committing one offense and does not set

forth separate and.-distinct offenses).

* Id.

App. 21

under the breath or blood alcohol concentraticn (BAC)

prong for the same act.’

The harassment, as charged in the information, is a

lesser included offense of harassment as charged in the

stalking indictment. This fact is yet another reason that

prosecution of Appellant under the stalking indictment is

jeopardy barred. When Appellant committed harassment

against Reed, he was attempting to commit the offense

against Charles. The State argues that the December 18th

offense is actually two separate offenses, although only a

single act, because the harassment information names

Reed as the complainant while the stalking indictment

names Charles. When Appellant made the calls intended

for Charles but received by Reed, his intent was to harass

Charles. He had no way of knowing that Reed, not

Charles, would receive the cails. That is, Appellant at-

tempted to commit the harassment offense against

Charles when he committed the offense against Reed.

Texas Code of Criminal Procedure article 37.09

provides:

An offense is a lesser included offense if:

(1) it is established by proof of the same or

less than all the facts required to establish the

commission of the offense charged;

(2) it differs from the offense charged only

in the respect that a less serious injury or risk of

’ See id.; see also TEX. PENAL CODE ANN. §§ 49.01(2), 49.04(a)

(Vernon Supp. 2002).

App. 22

injury to the same person, property, or public in-

terest suffices to establish its commission;

(3) it differs from the offense charged only

in the respect that a less culpable mental state

suffices to establish its commission; or

(4) it consists of an attempt to commit the

offense charged or an otherwise included of-

fense.”

The double jeopardy clause bars the State from putting a

person in jeopardy twice for the same offense.’ “For double |

jeopardy purposes, ‘[t]he same offense means the identical

criminal act, not the same offense by name.’”” If an

offense is a lesser included offense of the other, then the

two offenses are also the “same” for double jeopardy

purposes.” A defendant may not be tried for the same

offense in multiple prosecutions even though the State

alleges a different manner and means of committing that

offense.”

Not only does the fact that Appellant managed to

commit the intended offense against the wrong person make

him guilty of the lesser included attempt as described by

* Tex. CoDE CRIM. Proc. ANN. art. 37.09 (Vernon 1981) (emphasis

added).

* U.S. CONST. amends. V, XIV. »

° Ex parte Goodbread, 967 S.W.2d 859, 860 (Tex. Crim. App. 1998)

(quoting Luna v. State, 493 S.W.2d 854, 855 (Tex. Crim. App. 1973)).

” Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App.1994); Ex

parte Granger, 850 S.W.2d 513, 516 (Tex. Crim. App. 1993).

* Monge v. California, 524 U.S. 721, 727-28, 118 S. Ct. 2246, 2250

(1998); Nickerson v. State, 69 S.W.3d 661, 670 (Tex. App. — Waco 2002,

pet. refd).

App. 23

article 37.09, his error implicates the transferred intent

provisions of Texas Penal Code section 6.04(b). That

section provides:

A person is nevertheless criminally responsible

for causing a result if the only difference between

what actually occurred and what he desired, con-

templated, or risked is that:

(1) a different offense was committed; or

(2) a different person or property was in-

jured, harmed, or otherwise affected.”

Whether Appellant was convicted under a theory of

transferred intent or whether the harassment offense is

read in such a way that it does not require that the person

actually injured be the person the actor intended to injure,

Charles was the intended victim. While Appellant’s act

was an offense against Reed, it was, at the same time, an

attempted harassment of Charles. Under article 37.09(4),

the attempt is included in the completed offense, even if

the victims are not the same person.“ Similarly, evidence

of a single telephone call is a lesser included element of

the offense of harassment.”

Appellant was convicted of the December 18, 1999

telephone harassment, and further prosecution for that

offense, even as a lesser included element of a greater

offense, is jeopardy barred. I would so hold.

* Tex. PENAL CODE ANN. § 6.04(b) (Vernon 1994).

“ Tex. CODE CRIM. Proc. ANN. art. 37.09(4).

* See TEX. PENAL CODE ANN. § 42.07(a).

App. 24

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PUBLISH

SEP 09 2002

App. 25

(LOGO)

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-01-120-CR

Frank Alexander Lewis § From the 297th District Court

§ of Tarrant County (0774991D)

§ September 9, 2002

§ Opinion by Justice Holman

§ Dissent by Justice Dauphinot

Tne State of Texas § (p)

JUDGMENT

After reviewing the State’s petition for discretionary

review, we modify our opinion and judgment in this

appeal. See TEX. R. App. P. 50. We withdraw our June 27,

2002 opinion and judgment and substitute the following.

This court has again considered the record on appeal

in this case and holds that there was no error in the trial

court’s judgment. It is ordered that the judgment of the

trial court is affirmed.

/s/ Dixon Holman

7 App. 26 -

CASE NO. 0774991D

THE STATE OF TEXAS § IN THE 297TH

a" , DISTRICT

FRANK ALEXANDER LEwIs § COUR! OF

, TARRANT COUNTY,

TEXAS

JUDGMENT ON JURY VERDICT OF GUILTY

PUNISHMENT FIXED BY COURT OR JURY -

NO PROBATION GRANTED

HON. . Date of

Judge EVERETT Judg- FEBRUARY

Presiding : YOUNG ment ; 1, 2001

Attorney FRED L.

for State Assistant CUMMINGS

District District REBECCA

Attorney : TIMCURRY. Attorney: DENHAM

Attorney ) Charging

for - DANNY D. Instru-

Defendant: BURNS ment : INDICTMENT

Offense Convicted

Date Offense

NOVEMBER STALKING

23, 1999 AND A PRIOR

CONVICTION

Degree Count Plea

3RD ONE NOT GUILTY

Findings

on Deadly

Weapon : NONE

Plea to

Enhance-

ment

Para-

graph(s)

App. 27

NONE

Plea to

Habitual

Para-

graph(s)

NONE be

Findings on

Enhance-

NONE

Verdict

GUILTY

Punish-

ment

Assessed

: JURY

Date

Sentence

Imposed

~Date to

FEBRUARY 2, Com- FEBRUARY 2,

2001 mence 2001

Punish-

ment Place:

of Con-

finement

Fine

COUNT ONE-TEN (10) YEARS INSTITU-

TIONAL DIVISION OF THE TEXAS DE-

PARTMENT OF CRIMINAL JUSTICE

$10,000.00 TEN THOUSAND DOLLARS

: AND ZERO CENTS

Time

Credited

Court

212 DAYS Costs : $272.25

Reparation:

NONE

Restitu- :

tion

NONE

App. 28

On this day, set forth above, this cause came for trial,

and the State appeared by the above-named attorney, and

the Defendant appeared in person in open court, the

above-named counsel for Defendant also being present, or,

where a Defendant is not represented by counsel, that the

Defendant knowingly, intelligently, and voluntarily

waived the right to representation by counsel; and the said

Defendant having been duly arraigned and it appearing to

the Court that Defendant was mentally competent, and

having pleaded as shown above to the indictment herein,

both parties announced ready for trial and thereupon a

jury, to-wit, the above named foreman and eleven others,

was duly selected, impaneled and sworn, who having

heard the indictment read and the Defendant’s plea

thereto, and having heard the evidence submitted, and

having been duly charged by the Court, retired in charge

of the proper officer to consider the verdict, and afterward

were brought into Court by the proper officer, the Defen-

dant and Defendant’s counsel being present, and returned

into open court the verdict set forth above, which was

received by the Court, and is here now entered upon the

minutes of the Court as shown above.

Thereupon, the Defendant elected to have punishment

assessed by the above shown assessor of punishment, and

when shown above that the indictment contains enhance-

ment paragraph(s), which were not waived, and alleges

Defendant to have been convicted previously of any felony

or offenses for the purpose of enhancement of punishment,

then the Court asked Defendant if such allegations were

true or false and Defendant answered as shown above.

And when Defendant is shown above to have elected to

have the jury assess punishment, such jury was called

back into the box and heard evidence relative to the

App. 29

question of punishment and having been duly charged by

the Court, they retired to consider such question, and after

having deliberated, they returned into Court the verdict

shown under punishment above; and when Defendant is

shown above to have elected to have punishment fixed by

the Court, in due form of law further evidence was heard

by the Court relative to the question of punishment and

_ the Court fixed the punishment of the Defendant as shown

above.

IT IS THEREFORE CONSIDERED AND ORDERED

by the Court, in the presence of the Defendant, that the

said judgment be, and the same is hereby in all things

approved and confirmed, and that the Defendant is ad-

judged guilty of the offense set forth above as found by the

verdict of the jury, as set forth above, and said Defendant

be punished in accordance with the Jury Verdict or the

Court’s Finding, as shown above and that the Defendant is

sentenced to a term of imprisonment or fine or both, as set

forth above, and that said Defendant be delivered by the

Sheriff to the Director of the Institutional Division of the

Texas Department of Criminal Justice, or other person

legally authorized to receive such convicts for the punish-

ment assessed herein, and the said Defendant shall be

confined for the above named term in accordance with the

provisions of law governing such punishments and execu-

tion may issue as necessary.

And, if shown above that the Defendant has been duly

and legally convicted of a prior offense by showing the

court, cause number, and offense, together with the

punishment for such offense and date Defendant was

sentenced for such offense in accordance with such convic-

tion, then it is further ORDERED AND ADJUDGED that

the. punishment herein adjudged against said Defendant

App. 30

shall begin when the judgment in such prior offense, when

shown above, shall have ceased to operate.

And the said Defendant is remanded to jail until said

Sheriff can obey the direction of this judgment.

/s/ Everett Young

PRESIDING JUDGE

Date Signed : FEBRUARY 6, 2001

Notice of Appeal

Mandate Received

App. 31

NAME OFFENSE

FRANK ALEXANDER LEWIS STALKING-

ADDRESS ENHANCEMENT

12832 STAFFORD DATE 11-23-99

OKLAHOMA CITY OK 73120 I. P. SUSAN CHARLES

RACE W SEX M AGE 48 C.c

DOB 09-11-52 ae?

AGENCY

PC HAS BEEN DETERMINED 99901B032

TRANSFER COURT DATE

0175029 COURT D297

INDICTMENT NO. 0774991D

(Filed Sep. 25, 2000)

IN THE NAME AND BY AUTHORITY OF THE STATE

OF TEXAS:

THE GRAND JURORS OF TARRANT COUNTY,

TEXAS, duly elected, tried, empaneled, sworn and

charged to inquire of offenses committed in Tarrant

County, in the State of Texas, upon their oaths do present

in and to the * * * *

CRIMINAL DISTRICT COURT NO. 3 of said County

that * * *

FRANK ALEXANDER LEWIS hereinafter called

Defendant, in the County of Tarrant and State aforesaid,

on or about the 23RD day of NOVEMBER 1999, did

THEN AND THERE KNOWINGLY ENGAGE IN CON-

DUCT, TO-WIT: KNOCKED ON THE BEDROOM WIN-

DOW OF SUSAN CHARLES AND STOOD ON THE

App. 32

- SIDEWALK A SHORT DISTANCE FROM SAID BED-

ROOM WINDOW AND LOOKED AT SUSAN CHARLES

AND SHRUGGED HIS SHOULDERS WHEN SUSAN

CHARLES LOOKED AT THE SAID DEFENDANT, THAT

WAS DIRECTED SPECIFICALLY AT ANOTHER,

NAMELY, SUSAN CHARLES, THAT THE DEFENDANT

KNEW OR REASONABLY BELIEVED THAT THE SAID

SUSAN CHARLES WOULD REGARD AS THREATEN-

ING BODILY INJURY OR DEATH FOR SUSAN

CHARLES AND SAID CONDUCT CAUSED SUSAN

CHARLES TO BE PLACED IN FEAR OF BODILY IN-

JURY OR DEATH AND SAID CONDUCT WOULD

CAUSE A REASONABLE PERSON TO FEAR BODILY

INJURY OR DEATH FOR HIMSELF, AND THE DE-

FENDANT DID ON OR ABOUT THE 18TH DAY OF

DECEMBER, 1999, IN TARRANT COUNTY, TEXAS,

KNOWINGLY ENGAGE IN CONDUCT, TO WIT: TELE-

PHONED AND LEFT A RECORDED MESSAGE FOR

SUSAN CHARLES IN WHICH HE SAID SEVERAL

TIMES THAT SUSAN CHARLES “HAD BETTER

WATCH OUT”, THAT WAS DIRECTED SPECIFICALLY

AT ANOTHER, NAMELY, SUSAN CHARLES, THAT

THE DEFENDANT KNEW OR REASONABLY BE-

LIEVED THAT THE SAID SUSAN CHARLES WOULD

REGARD AS THREATENING BODILY INJURY OR

DEATH FOR SUSAN CHARLES AND SAID CONDUCT

CAUSED SUSAN CHARLES TO BE PLACED IN FEAR

OF BODILY INJURY OR DEATH, AND SAID CONDUCT

WOULD CAUSE A REASONABLE PERSON TO FEAR

BODILY INJURY OR DEATH FOR HIMSELF, AND ALL

OF THE ABOVE CONDUCT OCCURRED ON MORE

THAN ONE OCCASION AND WAS PURSUANT TO THE

SAME SCHEME OR COURSE OF CONDUCT,

—

App. 33

COUNT ONE PARAGRAPH TWO

AND IT IS FURTHER PRESENTED IN AND TO SAID

COURT THAT THE SAID FRANK ALEXANDER LEWIS

IN THE COUNTY OF TARRANT AND STATE AFORE-

SAID, ON OR ABOUT THE 25TH DAY OF JUNE, 2000,

DID THEN- AND THERE KNOWINGLY ENGAGE IN

CONDUCT, TO-WIT: LEFT A TELEPHONE MESSAGE

WHERE THE SAID DEFENDANT TOLD SUSAN

CHARLES “YOU’RE GONNA BE DONE, BITCH,

YOU'RE GONNA BE DONE, BITCH”, THAT WAS DI-

RECTED SPECIFICALLY AT ANOTHER, NAMELY,

SUSAN CHARLES, THAT THE DEFENDANT KNEW OR

REASONABLY BELIEVED THAT THE SAID SUSAN

CHARLES WOULD REGARD AS THREATENING

BODILY INJURY OR DEATH FOR SUSAN CHARLES

AND SAID CONDUCT CAUSED SUSAN CHARLES TO

BE PLACED IN FEAR OF BODILY INJURY OR DEATH

AND SAID CONDUCT WOULD CAUSE A REASON-

ABLE PERSON TO FEAR BODILY INJURY OR DEATH

FOR HIMSELF, AND THE DEFENDANT DID ON OR

ABOUT THE 4TH DAY OF JULY, 2000, IN TARRANT

COUNTY, TEXAS, KNOWINGLY ENGAGE IN CON-

DUCT, TO-WIT: LEFT A TELEPHONE MESSAGE

WHERE THE SAID DEFENDANT TOLD SUSAN

CHARLES “YOU FUCKED UP MY LIFE, NOW YOU

HAVE GOT TO BE PART OF IT UNTIL I DIE’, THAT

WAS -DIRECTED SPECIFICALLY AT ANOTHER,

NAMELY, SUSAN CHARLES, THAT WAS DIRECTED

SPECIFICALLY AT ANOTHER, NAMELY, SUSAN

CHARLES, THAT THE DEFENDANT KNEW OR REA-

SONABLY BELIEVED THAT THE SAID SUSAN

CHARLES WOULD REGARD AS THREATENING

BODILY INJURY OR DEATH FOR SUSAN CHARLES

AND SAID CONDUCT CAUSED SUSAN CHARLES TO

App. 34

BE PLACED IN FEAR OF BODILY INJURY OR DEATH,

AND SAID CONDUCT WOULD CAUSE A REASON-

ABLE PERSON TO FEAR BODILY INJURY OR DEATH

FOR HIMSELF, AND ALL OF THE ABOVE CONDUCT

OCCURRED ON MORE THAN ONE OCCASION AND

WAS PURSUANT TO THE SAME SCHEME OR

COURSE OF CONDUCT,

COUNT ONE PARAGRAPH THREE

AND IT IS FURTHER PRESENTED IN AND TO SAID

COURT THAT THE SAID FRANK ALEXANDER LEWIS

IN THE COUNTY OF TARRANT AND STATE AFORE-

SAID, ON OR ABOUT THE 4TH DAY OF JULY, 2000,

DID THEN AND THERE KNOWINGLY ENGAGE IN

CONDUCT, TO-WIT: LEFT A TELEPHONE MESSAGE

WHERE THE SAID DEFENDANT TOLD SUSAN

CHARLES HE WOULD MAKE THINGS EVEN WITH

HER WITH A REFERENCE TO AN EYE FOR AN EYE

AND A TOOTH FOR A TOOTH, THAT WAS DIRECTED

SPECIFICALLY AT ANOTHER, NAMELY, SUSAN

CHARLES, THAT THE DEFENDANT KNEW OR REA-

SONABLY BELIEVED THAT THE SAID SUSAN

CHARLES WOULD REGARD AS THREATENING

BODILY INJURY OR DEATH FOR SUSAN CHARLES

AND SAID CONDUCT CAUSED SUSAN CHARLES TO

BE PLACED IN FEAR OF BODILY INJURY OR DEATH

AND SAID CONDUCT WOULD CAUSE A REASON-

ABLE PERSON TO FEAR BODILY INJURY OR DEATH

FOR HIMSELF, AND THE DEFENDANT DID ON OR

ABOUT THE 6TH DAY OF JULY, 2000, IN TARRANT

COUNTY, TEXAS, KNOWINGLY ENGAGE IN CON-

DUCT, TO-WIT: FOLLOWING SUSAN CHARLES IN AN

AUTOMOBILE, THAT WAS DIRECTED SPECIFICALLY

AT ANOTHER, NAMELY, SUSAN CHARLES, THAT

App. 35

WAS DIRECTED SPECIFICALLY AT ANOTHER,

NAMELY, SUSAN CHARLES, THAT THE DEFENDANT

KNEW OR REASONABLY BELIEVED THAT THE SAID

SUSAN CHARLES WOULD REGARD AS THREATEN-

ING BODILY INJURY OR DEATH FOR SUSAN

CHARLES AND SAID CONDUCT CAUSED SUSAN

CHARLES TO BE PLACED IN FEAR OF BODILY IN-

JURY OR DEATH, AND SAID CONDUCT WOULD

CAUSE A REASONABLE PERSON TO FEAR BODILY

INJURY OR DEATH FOR HIMSELF, AND ALL OF THE

ABOVE CONDUCT OCCURRED ON MORE THAN ONE

OCCASION AND WAS PURSUANT TO THE SAME

SCHEME OR COURSE OF CONDUCT,

AND IT IS FURTHER PRESENTED TO SAID COURT

THAT PRIOR TO THE COMMISSION OF THE OF-

FENSE SET OUT ABOVE THE DEFENDANT HAD

BEEN FINALLY CONVICTED OF A STALKING OF-

FENSE, TO-WIT: ON THE 3RD DAY OF JUNE, 1999, IN

THE COUNTY CRIMINAL COURT NUMBER FIVE OF

TARRANT COUNTY, TEXAS, IN CAUSE NUMBER

0676210. -

AGAINST THE PEACE AND DIGNITY OF THE STATE.

/s/ Tim Curry /s/ J.D. Shipp

Criminal District Attorney Foreman of the Grand Jury

INDICTMENT - ORIGINAL

App. 36

OFFICIAL NOTICE FROM COURT

OF CRIMINAL APPEALS OF TEXAS

P.O. BOX 12308, CAPITOL STATION,

AUSTIN, TEXAS 78711

February 12, 2003

COA#: 02-01-00120-CR ~

RE: Case No. 1799-02

STYLE: LEWIS, FRANK ALEXANDER

On this day, the Appellant’s Petition for Discretionary

Review has been REFUSED.

Troy C. Bennett, Jr., Clerk

DANNY D BURNS

115 N HENDERSON STREET

FT WORTH TX 76102-1940

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