Nunn, Danny v. The State of Texas--Appeal from County Court at Law No 4 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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DANNY NUNN, ) No. 08-01-00374-CR

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Appellant, ) Appeal from

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v. ) County Court at Law No. 4

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 20000C16788)

O P I N I O N

Danny Nunn appeals his conviction for harassment. A jury found him guilty and the court assessed his punishment at a fine of $2,000 and confinement for a term of 180 days. We affirm.

FACTUAL SUMMARY

Appellant and Lynda Harris have been divorced since June 1987. They have one child, Jennifer Nunn. Doris Sipes, an El Paso attorney, has known Appellant for approximately eighteen years. They first met when Appellant retained her to represent him in connection with the divorce and custody proceedings in Alpine, Texas. Sipes withdrew from representation after only a short time because she had been appointed to represent Henry Lee Lucas in a high profile criminal matter. She had no further contact with Appellant until March 2000.

Appellant won custody of Jennifer and she lived with him in El Paso from June 1987 until December 1988. She began living with her mother in Alpine when she was five years old. The record does not reflect the underlying facts, but Jennifer had no contact with her father for twelve years. With the encouragement of a friend, seventeen-year-old Jennifer wrote a letter to Appellant in 1999 in an effort to establish a relationship. Appellant responded by writing dozens of letters to her in which he described satanic worship, prostitutes, cocaine addicts, and his own sexual conduct with women. He also sent her copies of letters he had mailed to Sipes with additional notations in the margins. Upset, Jennifer showed the letters to her mother. Harris read the letters, several of which mentioned Sipes and Carol Coyner and accused all three women of conspiring to murder Appellant. Harris decided to telephone Coyner because of the threats made against her life.[1] After speaking with Coyner, Harris faxed her a copy of a letter. Harris also called the El Paso Police Department and filed a harassment report.

Carol Coyner is a publisher in El Paso. She met Appellant in 1994 when he became a customer of her publishing and print shop. They began dating in 1998 and later lived together for approximately a year. Appellant also began working for Coyner. One evening, Appellant became furious about something another employee had done and he began ranting and raving. In Coyner=s words, Appellant Ajust turned into a monster@ and she saw a side of him she had never seen before. They broke up that same evening. Coyner spoke with Appellant a few weeks later, but he was verbally abusive and he continued to behave strangely. Coyner made Appellant move his belongings out of her home that same evening.

Shortly after Appellant moved out, he began making hangup telephone calls to Coyner, calling her once or twice a day for the next six weeks. Coyner reported the harassing phone calls to the police and a detective contacted Appellant in February. In mid-February, the telephone calls ceased, but Appellant began sending letters to Coyner stating that he was watching her. Coyner often saw him sitting in his truck when she went to the post office or bank. He also drove by her business on Doniphan several times a day.

At about the same time, Coyner received a telephone call from Lynda Harris advising her of the letters Appellant had been sending to Jennifer. In these letters, Appellant kept predicting that Coyner would be found dead with a bullet in her head or that she would be run over by a truck while walking down Doniphan. The letters also accused Coyner of being a cocaine addict and a member of a satanic cult. Appellant sent copies of some of the letters to Coyner=s friends. Terrified by the letters and Appellant=s conduct, Coyner called the El Paso Police Department to make another report. She also obtained a protective order in September 2000. Despite the protective order, Appellant began sending e-mail messages to Coyner. As was the case with the letters, Appellant repeatedly predicted that Coyner would be found dead and he accused her of being a member of a satanic cult. Detective Anna Soto of the El Paso Police Department was assigned to the harassment case in January 2000. Coyner initially told Soto that she did not wish to prosecute Appellant but simply wanted him to stop harassing her. Soto telephoned Appellant and spoke with him about Coyner=s allegations. He admitted calling Coyner but insisted it was only to talk to her about a W-2 form. Soto told Appellant she would mention the W-2 form to Coyner but that he should stop calling her. In March 2000, Coyner filed a new harassment report based upon the threatening letters he had sent her. Soto again telephoned Appellant. He admitted sending letters to Coyner but told Soto that he was conducting an investigation of a conspiracy to murder him involving Coyner, Sipes, and the El Paso Police Department. He went so far as to tell Soto that Coyner had put his family in grave danger and Ashe would have to pay.@

Doris Sipes received a manila enveloped at her office address from Appellant. The envelope, which was postmarked March 25, 2000, contained several letters, a Bible, and a book of poetry written by Appellant. The letters accused Sipes of being a witch, having sex with a woman, having sex with animals, hiring people to commit murder, and engaging in satanic conspiracies. The Bible contained the following handwritten inscription on its presentation page:

Presented to

Doris Sipes - El Paso, Texas Head Witch of the Satanic Cult >Hidden Hands of Death=

by

Mr. Danny Nunn - El Paso, Texas Author of >In the Best Interest of a Conspiracy= and >In her Last Day, One Nation Under God=

on

To Be Recieved [sic] By Doris Sipes on April 14, 2000 - The Birthday of Adolph Hitler - And the Frist [sic] Anniversary of the Columbine High School Murders. I know who murdered my best friend Joe Johnson - Joe Ochoa - all Satanic killings.

The inscription is signed by ADanny Nunn.@ A handwritten message appears on the inside cover of the Bible:

Doris Sipes, this book of God is for you, when you do your satanic rituals this Easter. I know the places that they could be held, Texas or New Mexico. Mt. Riley or the Teepee Ranch. Out by Horizon on top of the mesa. One road in and no way out. Kind of like your one way trip to hell. But look at it this way Doris at least you know that you won=t freeze to death. We all have to meet our maker, and we all know what he will have to say to you. Thanks for the phone call the other day from the fake cop, very helpful. I know all about the horse mutilation down in Clint. Gave law enforcement all the information on it about you and your people. Be careful about those old tainted bon fires that might have a bomb hidden under them. The eyes of God will always be on you even in the dark. Look to the skies when you do your rituals. It could be a low flying helicopter with me and law enforcement.

Doris, I just love book signings, don=t you. Doris, you know this will go all over the world be for [sic] you even get it.

It is signed by AThe Witch Hunter, Danny Nunn.@ Given the statements in the letter, Sipes became alarmed that the package contained a bomb and called the El Paso Police Department. On the same day that Sipes received this package, someone called in a bomb threat and left a box across the street from Sipes= office near St. Patrick=s Cathedral. No bomb was found by law enforcement authorities but the threat interrupted proceedings at the church.

Yet another letter sent to Sipes by Appellant stated:

Doris -- See ya Saturday nite at your big ritual. I know where you will hold it. Stay home if it is a cloudy night. You could get struck by lightning. God has got pretty close to you with lightning at the church across the street from your office. Maybe the next time he won=t miss.

Nunn, who waived his right to counsel and represented himself at trial, testified that he had sent the letters, the book of poetry, and the Bible to Sipes. Similarly, he admitted making hangup phone calls to Coyner, and sending her letters and e-mail messages. He claimed that he did not intend to scare Sipes or Coyner but was merely attempting to investigate their involvement in a satanic cult. The jury rejected Appellant=s defense and found him guilty as alleged in the information.

FACTUAL SUFFICIENCY

In his sole point of error, Appellant challenges the factual sufficiency of the evidence to sustain his conviction for harassing Sipes. He contends that because the State failed to prove his motive, it failed to prove that he intended to harass Sipes by sending her these writings.

Standard of Review

When conducting a review of the factual sufficiency of the evidence, we consider all of the evidence, both admissible and inadmissible, but we do not view it in the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996); Levario v. State, 964 S.W.2d 290, 295 (Tex.App.--El Paso 1997, no pet.). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997). A defendant challenging the factual sufficiency of the evidence may allege that the evidence is so weak as to be clearly wrong and manifestly unjust, or in a case where the defendant has offered contrary evidence, he may argue that the finding of guilt is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. Although we are authorized to set aside the fact finder=s determination under either of these two circumstances, our review must employ appropriate deference and should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any evidence presented at trial. See Johnson, 23 S.W.3d at 7. We are not free to reweigh the evidence and set aside a verdict merely because we feel that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis, 922 S.W.2d at 135.

Elements of the Offense

A person commits the offense of harassment if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he initiates communication in writing and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene. Tex.Pen.Code Ann. ' 42.07(a)(1)(Vernon Supp. 2002). For purposes of this section, Aobscene@ means containing a patently offensive description 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. Tex.Pen.Code Ann. ' 42.07(b)(3). A person also commits harassment if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he threatens, by telephone or in writing, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of his family, or his property. Tex.Pen.Code Ann. ' 42.07(a)(2).

In the first two paragraphs, the information alleged that Appellant, with intent to harass, annoy, alarm, abuse, torment, and embarrass Doris Sipes, initiated a communication in writing and in the course of the communication made an obscene comment, to wit: that Doris Sipes performed deviate sexual intercourse upon another woman and that she engaged in sexual intercourse with an animal. In the third paragraph, the information alleged that Appellant, acting with the same intent described in the first two paragraphs, threatened in writing, in a manner reasonably likely to alarm Sipes, to inflict bodily injury upon her. The court=s charge instructed the jury consistent with these allegations.

Intent to Harass, Annoy, Alarm, Abuse, Torment, and Embarrass

The State is not required to prove a defendant=s motive to establish the commission of an offense. Bush v. State, 628 S.W.2d 441, 444 (Tex.Crim.App. 1982). Although Appellant acknowledges this rule, he nevertheless argues that the State=s failure to offer any evidence of motive renders the evidence factually insufficient to establish his intent. Appellant=s argument confuses the concepts of motive and intent. Rather than looking at the existence of evidence tending to show Appellant=s motive for harassing Sipes with these writings, our sufficiency review is properly limited to the evidence showing whether he acted with an intent to harass, annoy, alarm, abuse, torment, or embarrass her. Intent is a fact question for the trier of fact, and it may be inferred from the acts, words, and conduct of the accused. Manriquev. State, 994 S.W.2d 640, 649 (Tex.Crim.App. 1999); Wallace v. State, 52 S.W.3d 231, 234 (Tex.App. -El Paso 2001, no pet.). As a result of its nature, mental culpability must generally be inferred from the circumstances under which a prohibited act or omission occurs. Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991); Wallace, 52 S.W.3d at 235.

We will first examine the sufficiency of the evidence demonstrating that Appellant, acting with the requisite intent, initiated a communication in writing and in the course of the communication made an obscene comment, to wit: that Doris Sipes performed deviate sexual intercourse upon another woman and that she engaged in sexual intercourse with an animal. Several of the letters Appellant sent to Sipes discussed her engaging in sexual acts with a woman and with an animal. He informed Sipes that he had sent copies of these materials to other people, including Sipes= ex-husband, so that they would know what she had done. He also told her he intended to include all of these materials in books that were being published. From this evidence, a rational trier of fact could have concluded that Appellant initiated the communications with the intent to harass, annoy, alarm, torment, or embarrass her. Appellant=s denial of having any such intent does not render the evidence factually insufficient to support his conviction.

Turning to the remaining allegation, the evidence is factually sufficient to show that Appellant acted with the intent to harass or alarm Sipes when he threatened to inflict bodily injury upon her. The letter and inscription found in the Bible contain many warnings that Sipes should be careful because Appellant and God were watching her. Further, he told her that he knew where she would be holding an upcoming Aritual,@ stating that there was only one way in and one way out, and he warned her of bombs hidden under bonfires. In a separate writing, Appellant referred to Alightning@ striking at the church across the street from Sipes= office, and warned her that God might not miss her next time. The jury could have believed that Appellant was referring to the bomb threat made at St. Patrick=s. The tone of all of the writings is extremely threatening and filled with warnings of Sipes= impending death. Despite Appellant=s denial of any malicious intent, a rational trier of fact could reasonably find that Appellant initiated the writings with the intent to harass or alarm Sipes. Consequently, the evidence is sufficient to support Appellant=s conviction for harassment. Appellant=s sole point is overruled and the judgment of the trial court is affirmed.

October 17, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1] Coyner, Harris, and Sipes did not know one another prior to these events. Harris found Coyner=s telephone number because Appellant mentioned the name of her publishing company in one of the letters.