Felony stalking conviction

Texas Case Law

Unpublished

KAHARA v. STATE, 01-05-00414-CR (Tex.App.-Houston [1st
Dist.] 12-21-2006) MARTIN YVENER KAHARA, Appellant v. THE
STATE OF TEXAS, Appellee. No. 01-05-00414-CR. Court of
Appeals of Texas, First District, Houston. Opinion issued
December 21, 2006. Do not publish.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] On Appeal from the 405th District Court,
Galveston County, Texas, Trial Court Cause No. 03CR3313.

Panel consists of Chief Justice RADACK, Justice ALCALA and
JUSTICE BLAND.

MEMORANDUM OPINION

ELSA ALCALA, Justice.

Appellant, Martin Yvener Kahara, appeals a judgment that
convicts him of felony stalking. See Tex. Pen. Code Ann.
§ 42.072 (Vernon 2003). He pleaded not guilty to the
jury, and the jury found him guilty. The trial court
assessed punishment at four years in prison. In two issues,
appellant challenges the legal and factual sufficiency of
the evidence to support his conviction. The State moved to
dismiss appellant’s appeal for want of jurisdiction,
contending that appellant’s notice of appeal was not timely
filed. We deny the State’s motion, and conclude that the
State’s evidence was legally and factually sufficient to
support appellant’s conviction. We affirm.

JURISDICTION

The State moves that this court dismiss the appeal for want
of jurisdiction, claiming that appellant failed to file
written notice of appeal within the required 30 days after
judgment is entered. See Tex. R. App. P. 25.2(b)-(c), 26.2.

A party wishing to appeal must file with the trial court
clerk “a sufficient notice of appeal” within 30 days of
judgment. Tex. R. App. P. 25.2(b). Notice is sufficient if
it shows that the party desires to appeal from the
judgment. Id. 25.2(c)(2). When “an appellant has timely
filed a document with the trial court that demonstrates his
desire to appeal, that document should be construed as a
notice of appeal.” Pharris v. State, 196 S.W.3d 369, 372
(Tex.App.-Houston [1st Dist.] 2006, no pet.). A document
such as a motion to obtain the clerk’s record and
reporter’s record is sufficient to show that an appellant
desires to appeal from the trial court’s judgment. Cooper
v. State, 917 S.W.2d 474, 477 (Tex.App.-Fort Worth 1996,
pet. ref’d) (concluding that request filed by defendant for
free record was sufficient notice of appeal); Buchanan v.
State, 881 S.W.2d 376, 378 (Tex.App.-Houston [1st Dist.]
1994) (holding motion to obtain clerk’s and reporter’s
record was sufficient demonstration of desire to appeal),
rev’d on other grounds, 911 S.W.2d 11 (Tex.Crim.App. 1995);
Massey v. State, 759 S.W.2d 18, 19 (Tex.App.-Texarkana
1988, no pet.) (holding that written request for copy of
record and appointment of appellate counsel sufficiently
demonstrated desire to appeal). If the last day of a
designated period “is a Saturday, Sunday, or legal holiday,
the period extends to the end of the next day that is not a
Saturday, Sunday, or legal holiday.” Tex. R. App. P.
4.1(a).

The trial court entered judgment and sentence on March 17,
2005. Appellant gave oral notice of appeal to the trial
court on April 6, and written notice of appeal on April 21.
On April 18, appellate counsel filed a “Written Designation
Specifying Matters for Inclusion in Clerk’s Record” and a
“Request for Preparation of Reporter’s Record and
Designation of Matters to be Included.” Because the last day
of the 30-day period for filing notice of appeal fell on a
weekend, notice of appeal was due on the Monday after the
thirtieth day, which was April 20. See Tex. R. App. P.
4.1(a). We conclude that appellant’s notice of appeal was
timely filed because the April 18 motions for designation
of matters for the clerk’s record and request for
reporter’s record are sufficient to serve as written notice
of appeal. We hold that appellant timely filed a sufficient
notice of appeal, and overrule the State’s motion to
dismiss.

SUFFICIENCY OF THE EVIDENCE

Background

Complainant and appellant, both of whom worked at the
University of Texas Medical Branch in Galveston, began a
romantic relationship in 1999. In August 2003, the couple
broke up, only to reunite a few weeks later. That October,
the two broke up again. Complainant told appellant more
than once that the relationship was over. Complainant then
tried to end all contact with appellant, avoiding or
ignoring his attempts to contact her.

On October 18, after complainant left work, she noticed
that the hood was ajar on her Ford Expedition, and that a
strange smell was coming from the engine compartment. The
vehicle made “a funny tapping noise,” but she was able to
drive it back to her house. After the vehicle was towed the
following Monday for repair, complainant learned that sugar
had been poured into the oil reservoir, and six holes had
been punched in the condenser, necessitating replacement of
the engine. Complainant reported the incident to the police
department.

Complainant believed appellant was responsible for the
damage to her engine. She explained that the engine
compartment could only be reached by operating a lever in
the Expedition’s cab. Complainant stated that on the day
the Expedition was damaged, she noticed that the spare key
to the Expedition was missing from her residence. She
testified that she had previously given appellant a key to
her residence and that only she and appellant had access to
the missing key. Because the Expedition did not have any
sign of forcible entry, complainant believed a key was used
to enter it to cause the damage.

While complainant’s vehicle was being towed to the
dealership for repairs, complainant drove to the dealership
in another automobile. Complainant made two telephone calls
on her way to the dealership. One was to her sister, asking
for a ride from the dealership to a rental car agency. The
other was to appellant, asking him why he had cancelled her
AAA membership, which forced her to pay fees for towing the
Expedition. While complainant was waiting at the
dealership, appellant arrived. He refused to leave despite
requests from complainant’s sister, who asked him to leave
because complainant was becoming upset. Appellant finally
left when he was asked to by an employee of the dealership.
Neither complainant nor her sister, however, called the
police to complain about appellant.

Throughout October 2003, appellant continued to contact
complainant. He left a number of messages on her cell
phone’s voice mail, some of which complainant saved. He
repeatedly drove by her house at all hours, sometimes
parking on her street. On one late-night visit, he rolled
down his window and demanded that complainant talk to him,
but complainant refused to talk to him by remaining silent.
She photographed his car as he drove away. Appellant
followed complainant daily. Complainant had to check
whether he was waiting on her street before she would leave
her house. She repeatedly contacted Galveston police about
appellant’s behavior, finally making a November 3
appointment to meet with a domestic violence detective.
When she left that meeting, appellant was in his car across
the street from the police station parking lot. She called
the detective to point out appellant. The detective watched
appellant circle the station slowly, watching complainant
with “a fixed glance like a dead stare[.]” The detective
followed appellant in an unmarked car, pulled him over, and
asked why he was driving around the station. Appellant said
that he was going to the post office, which was
two-and-a-half blocks from the police station. The detective
arrested appellant. On December 5, complainant was granted
a Family Violence Protective Order against appellant.

At trial, the State presented the testimony of
complainant, complainant’s sister, and the detective with
whom complainant met on November 3. The State also showed
the jury the photographs complainant took of appellant’s
car, and played back some of the phone messages appellant
left for complainant. Appellant’s attorney cross-examined
the State’s witnesses, but appellant did not take the stand
or produce any other evidence in his defense.

In his appellate brief, appellant concedes that by placing
telephone calls and attempting visits he engaged in conduct
directed specifically at complainant on more than one
occasion, pursuant to the same scheme or course of conduct;
he claims he was looking for closure on a failed romance.
He denies, however, any involvement with the damage to
complainant’s car.

Stalking

The current stalking statute reads, in pertinent part:

§ 42.072. Stalking

(a) a person commits an offense if the person, on more than
one occasion and pursuant to the same scheme or course of
conduct that is directed specifically at another person,
knowingly engages in conduct, including following the other
person, that:

(1) the actor knows or reasonably believes the other person
will regard as threatening:

(A) bodily injury or death for the other person;

. . . .

(2) causes the other person . . . to be placed in fear of
bodily injury or death . . . and

(3) would cause a reasonable person to fear:

(A) bodily injury or death for himself or herself[.]Tex.
Pen. Code Ann. § 42.072; see also Clements v. State,
19 S.W.3d 442, 449-50 (Tex.App.-Houston [1st Dist.] 2000,
no pet.). The State by indictment charged that appellant
violated the act by damaging complainant’s vehicle, by
following her, and by calling her repeatedly, and that
appellant knew or reasonably believed that complainant would
regard that conduct as threatening bodily injury. On
appeal, appellant contests the sufficiency of the evidence
to support the jury’s verdict on the first and third prongs
of a stalking offense: that he knew or was reasonably
certain that complainant would regard his conduct as
threatening, and that a reasonable person would regard his
conduct as threatening. He does not contest the second
prong, that complainant herself felt threatened.

Legal Sufficiency

In his first issue on appeal, appellant contends that the
State’s evidence is insufficient as a matter of law to
uphold his conviction. In assessing legal sufficiency, we
consider the entire trial record to determine whether,
viewing the evidence in the light most favorable to the
verdict, a rational jury could have found the accused guilty
of all essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
318-19, 99 S. Ct. 2781, 2788-89 (1979); King v. State, 29
S.W.3d 556, 562 (Tex.Crim.App. 2000). In conducting our
review of the legal sufficiency of the evidence, we do not
reevaluate the weight and credibility of the evidence, but
ensure only that the jury reached a rational decision.
Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993).
This burden is the same for both direct and circumstantial
evidence cases. Powell v. State, 194 S.W.3d 503, 506
(Tex.Crim.App. 2006).

In reviewing legal sufficiency of the evidence,
circumstantial evidence alone is sufficient to establish
guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App.
2004). Each fact need not point directly and independently
to the guilt of the appellant, so long as the cumulative
effect of all incriminating facts is sufficient to support
conviction. Id. “[T]he jury can infer knowledge from the
acts, words, and conduct of the accused.” Castillo v.
State, 899 S.W.2d 391, 393 (Tex.App.-Houston [14th Dist.]
1995, no pet.); see also Dues v. State, 634 S.W.2d 304, 305
(Tex.Crim.App. 1982).

Appellant challenges the legal sufficiency of the evidence
by asserting that he was courting complainant or looking
for closure on the failed romance. According to appellant,
complainant never told him that she did not want to see him
anymore, nor did he know that his attentions were unwanted
or would cause complainant to fear bodily injury. Appellant
also asserts that he never threatened complainant, “did not
bother her” when he followed her and never approached
complainant in a hostile or aggressive manner. Appellant
further contends that the State failed to prove that he
damaged her Expedition.

Appellant contends that the evidence is legally
insufficient to establish that he knew or reasonably
believed that complainant would regard his conduct as
threatening bodily injury or death. See Tex. Pen. Code Ann.
§ 42.072(a)(1). Viewing the evidence in the light
most favorable to the verdict, the record shows that
complainant told appellant that their relationship was
over, and that complainant did not respond to appellant’s
attempts to communicate with her. Rather than discontinuing
his contact with complainant, appellant appeared uninvited
at the auto dealership, refused to leave the dealership
despite requests that he leave, drove by and parked near
her house at various hours, followed her daily, followed
her to the police station, and waited outside the station
as he watched her with “a dead stare.” Further, the jury
could have rationally determined that appellant was aware
that complainant feared him because he was present when
complainant became visibly upset by his presence at the
auto dealership.

Viewing the evidence in a light most favorable to the trial
court’s verdict, the record also shows that appellant
damaged complainant’s Expedition — an additional
component of appellant’s pattern of behavior that shows
that appellant knew or reasonably believed that complainant
would regard his conduct as threatening bodily injury or
death. Complainant kept an extra key to the Expedition in
her house and appellant had a key to her house when they
were dating. Appellant thus had access to the key to the
Expedition, which was damaged by a person who used a key to
gain entry. The evidence also shows that appellant, by his
own admission, went to great lengths to get complainant’s
attention. When viewed in the light most favorable to the
verdict, the cumulative effect of these facts would enable
a rational juror to find that appellant was responsible for
the damage to complainant’s vehicle. See King, 29 S.W.3d at
562; see also Guevara, 152 S.W.3d at 50 (“Motive is a
significant circumstance indicating guilt.”).[fn1]
Considering the totality of these circumstances, we hold
that the evidence is legally sufficient to prove that
defendant met the requirements of section 42.072(a)(1).

Appellant further contends that the evidence is legally
insufficient to show that his conduct would have caused a
reasonable person to fear bodily injury or death. See Tex.
Pen. Code Ann. § 42.072(a)(3). A reasonable person
can be placed in fear of bodily injury or death based on a
defendant’s “pattern of behavior,” such as leaving numerous
phone messages, appearing several times at places where the
defendant knows the person would be, and engaging in
conduct that the defendant knows would frighten the person.
See Clements, 19 S.W.3d at 449. No overt threat of violence
is required to place a reasonable person in fear. See
Williams v. State, 827 S.W.2d 614, 616 (Tex.App.-Houston
[1st Dist.] 1992, pet. ref’d). We note further that section
42.072 expressly includes “following” as sufficient conduct
to support a stalking conviction. Tex. Pen. Code Ann.
§ 42.072. Appellant admits in his brief that he
called complainant repeatedly, left numerous telephone
messages, drove by her house, and followed her to the auto
dealership. The State’s evidence showed that appellant
followed her to other places including the police station,
circling in his car while she was inside. Further, as noted
above, the evidence shows that appellant was responsible
for damaging complainant’s Expedition.

Viewing the facts in a light most favorable to the verdict,
we conclude that a rational juror could have found beyond a
reasonable doubt that a reasonable person would have been
placed in fear by appellant’s actions. We hold that the
State’s evidence is legally sufficient evidence to satisfy
the requirements of section 42.072(a)(3).

We overrule appellant’s first issue on appeal.

Factual Sufficiency

In his second issue on appeal, appellant challenges the
factual sufficiency of the evidence to support his
conviction. When conducting a factual-sufficiency review,
we view all of the evidence in a neutral light. Ladd v.
State, 3 S.W.3d 547, 557 (Tex.Crim.App. 1999). We will set
the verdict aside only if (1) the evidence is so weak that
the verdict is clearly wrong and manifestly unjust or (2)
the verdict is against the great weight and preponderance
of the evidence. Johnson v. State, 23 S.W.3d 1, 11
(Tex.Crim.App. 2000). Under the first prong of Johnson, we
cannot conclude that a conviction is “clearly wrong” or
“manifestly unjust” simply because, on the quantum of
evidence admitted, we would have voted to acquit had we
been on the jury. Watson v. State, 204 S.W.3d 404, 417
(Tex.Crim.App. Oct. 18, 2006). Under the second prong of
Johnson, we cannot declare that a conflict in the evidence
justifies a new trial simply because we disagree with the
jury’s resolution of that conflict. Id. Before finding that
evidence is factually insufficient to support a verdict
under the second prong of Johnson, we must be able to say,
with some objective basis in the record, that the great
weight and preponderance of the evidence contradicts the
jury’s verdict. Id. In conducting a factual-sufficiency
review, we must also discuss the evidence that, according to
the appellant, most undermines the jury’s verdict. See Sims
v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

We may not re-weigh the evidence and substitute our
judgment for that of the fact-finder. King, 29 S.W.3d at
562. The fact-finder alone determines what weight to place
on contradictory testimonial evidence because that
determination depends on the fact-finder’s evaluation of
credibility and demeanor. Cain v. State, 958 S.W.2d 404,
408-09 (Tex.Crim.App. 1997). As the determiner of the
credibility of the witnesses, the fact-finder may choose to
believe all, some, or none of the testimony presented. Id.
at 407 n. 5.

Appellant did not present any defensive evidence at trial.
Appellant does not challenge the factual sufficiency of the
evidence by claiming that the verdict is against the great
weight and preponderance of the evidence. Instead,
appellant’s factual sufficiency complaint is based solely
on the claim that the proof of guilt is so weak that the
jury’s verdict is clearly wrong or manifestly unjust. See
Watson, 204 S.W.3d at 417.

Appellant contends that the evidence is factually
insufficient to establish that he knew or reasonably
believed that complainant would regard his conduct as
threatening bodily injury or death. See Tex. Pen. Code Ann.
§ 42.072(a)(1). Appellant suggests that evidence
shows that he was merely courting complainant or looking
for closure for the relationship because in one of his
telephone messages, he asked her to tell him whether the
relationship was over for good, he never verbally
threatened complainant or approached her in a hostile
manner, and he was never told not to contact her until he
was arrested at the police station. The record also shows,
however, that complainant repeatedly told appellant that
their relationship was over before she broke off contact
with him. Further, once she had broken up with him, she
would not respond to any of his attempts to communicate
with her, but he continued his unwelcome advances. The
record also shows that he knew his conduct was unwelcome
and threatening to complainant because (1) complainant’s
sister asked him to leave when he appeared at the
dealership; (2) complainant was visibly upset by his
appearance at the dealership, and (3) complainant refused
to talk to him when he drove to her house and she
photographed his car as he drove away.

We note further that, when the evidence is viewed
neutrally, the record shows that appellant harmed
complainant’s Expedition. Although no direct evidence shows
that he caused the damage, the circumstantial evidence
points to appellant as the person who poured sugar in the
Expedition’s oil reservoir and put holes in its condenser.
Complainant testified that when she dated appellant she
gave him a key to her house. An extra key to the Expedition
that she kept inside the house was found to be missing on
the day the Expedition was damaged. The person who
vandalized the Expedition used a key to access the engine
compartment. Appellant also acknowledges that he went to
great lengths to try to get complainant’s attention, and
the evidence shows that complainant refused his attention,
which provides a motive for him to have damaged the
vehicle. See Guevara, 152 S.W.3d at 50. Moreover, appellant
had access to the key to the Expedition. Considering the
evidence that appellant damaged complainant’s Expedition,
in addition to the other circumstances described above, we
cannot conclude that the evidence is factually insufficient
to show that appellant knew or reasonably believed that
complainant would regard his conduct as threatening bodily
injury or death. See Tex. Pen. Code Ann. §
42.072(a)(1).

Appellant also challenges the factual sufficiency of the
evidence to show that a reasonable person in complainant’s
position would not have been in fear of bodily injury. See
Tex. Pen. Code Ann. § 42.072(a)(3). We note again
that no overt threat of violence is required to place a
reasonable person in fear, see Williams, 827 S.W.2d at 616,
and also that section 42.072 expressly includes “following”
as sufficient conduct to support a stalking conviction.
Tex. Pen. Code Ann. § 42.072. Appellant does not
dispute that complainant feared him; he asserts only that
the fear was not reasonable because he did not threaten her
or “bother” her. Appellant acknowledges that he repeatedly
called complainant and drove by uninvited to her house.
Viewing the evidence in a neutral light, the record also
shows that appellant refused to leave the auto dealership
when requested, appellant drove uninvited to complainant’s
house daily, and appellant followed complainant to the
police station. Considering these facts, in addition to the
evidence concerning the damage to complainant’s Expedition,
we cannot conclude that the evidence is factually
insufficient to show that a reasonable person in
complainant’s position would have been placed in fear of
bodily injury or death.

We conclude that evidence is not too weak to support the
jury’s determination that a reasonable person in
complainant’s position would have been placed in fear of
bodily injury. See Tex. Pen. Code Ann. §
42.072(a)(3). We hold that the State’s evidence is
factually sufficient to satisfy section 42.072(a)(3).

We overrule appellant’s second issue on appeal.

Conclusion

We affirm the judgment of the trial court.

[fn1] Because damage to complainant’s property is not an
element of the charged offense, the State need not prove
that appellant sabotaged complainant’s Expedition, so long
as it presents sufficient evidence to prove all elements of
the offense. See Johnson v. State, 747 S.W.2d 451, 454
(Tex.App.-Houston [14th Dist.] 1988, pet. ref’d) (holding
that while State need not prove every allegation in
indictment, State must prove every element of offense)
(citing Wiley v. State, 632 S.W.2d 746, 748 (Tex.Crim.App.
1982); Cook v. State, 488 S.W.2d 822, 824 (Tex.Crim.App.
1972)).