Boxie, Loretta Carrier v. The State of Texas--Appeal from Co Ct at Law No 2 & Probate Ct of Brazoria County

Reversed and Acquitted and Memorandum Opinion filed November 17, 2005

Reversed and Acquitted and Memorandum Opinion filed November 17, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00533-CR

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LORETTA CARRIER BOXIE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 2 and Probate Court

Brazoria County, Texas

Trial Court Cause No. 130507

M E M O R A N D U M O P I N I O N

Appellant, Loretta Carrier Boxie, appeals her jury conviction of interference with an emergency telephone call. The trial judge assessed punishment at sixty days= confinement in the county jail (suspended), twelve months= probation (including anger management classes), and a $100.00 fine. Appellant challenges the legal and factual sufficiency of the evidence supporting her conviction. We reverse and acquit.

On August 11, 2003, appellant visited her local Big Lots store in Pearland, Texas. She was the sole customer in line when she purchased an air freshener and baby wipes, totaling $5.36. Appellant handed a $20.00 bill and Amaybe@ forty cents to the complainant who was working as a cashier, and received two cents in change. When the deficiency was brought to the complainant=s attention, the complainant informed appellant of a store policy that she must count all of the money in her register to determine if there is a shortage. During this process, appellant became angry, cursed at the complainant, demanded her money back, and hit the counter Areally, really, really hard@ two times. The complainant, afraid appellant would hit her, picked up the phone and told appellant she was calling the police. Instead of allowing the complainant to place the call, appellant Agrabbed@ the phone from the complainant=s hand, Aslammed@ it down, and said she was not going to call Ano damn body.@ The complainant again picked up the phone and, again, appellant grabbed it away from her. On the complainant=s third attempt, appellant did not interfere, and the complainant called 9-1-1. The police arrived, spoke with the complainant for a few minutes, and then arrested appellant. Upon leaving jail later that evening, appellant received an envelope from the store containing the change she was owed.

Appellant argues there is legally and factually insufficient evidence to convict her of interference with an emergency telephone call. Specifically, appellant contends there was no emergency to make such a phone call necessary.

In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). We do not reevaluate the weight and credibility of the evidence and, if any rational juror could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. Tinker v. State, 148 S.W.3d 666, 668 (Tex. App.CHouston [14th Dist.] 2004, no pet.).

Appellant=s conviction will stand if there is sufficient evidence to show she Aknowingly prevent[ed] or interfere[d] with another individual=s ability to place an emergency telephone call . . . .@ Tex. Pen. Code Ann. ' 42.062 (a) (Vernon Supp. 2004B05). Appellant was arrested only weeks before this statute was amended. The pre-amendment definition of emergency is:

a condition or circumstance in which any individual is or is reasonably believed by the individual making a telephone call to be in imminent danger of serious bodily injury or in which property is or is reasonably believed by the individual making the telephone call to be in imminent danger of damage or destruction.

Act of May 23, 2001, 77th Leg., R.S., ch. 690, 2001 Tex. Gen. Laws 1313B14, amended by Act of May 27, 2003, 78th Leg., R.S., ch. 460, 2003 Tex. Gen. Laws 1729 and Act of April 16, 2003, 78th Leg., R.S., ch.1164, 2003 Tex. Gen. Laws 3305. (emphasis added).[1] ASerious bodily injury@ is Abodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.@ Tex. Pen. Code Ann. ' 1.07(a)(46) (Vernon Supp. 2004B05). AReasonable belief@ refers to Aa belief that would be held by an ordinary and prudent man in the same circumstances as the actor.@ Tex. Pen. Code Ann. ' 1.07(a)(42). In other words, the State had the burden of proving that the complainant had a reasonable belief she was in imminent danger of serious bodily injury, or that she reasonably believed property was in imminent danger of damage or destruction. For the purpose of our analysis, we assume imminence was established.

The evidence shows appellant hit the counter twice and cursed and yelled so that people in the back of the store stopped and took notice. She scared the complainant and made her nervous, and the complainant said she thought appellant might hit her.[2] When asked to elaborate, the complainant replied she was afraid appellant would Acause bodily injury.@ When the complainant said she would call the police and attempted to do so, appellant grabbed the phone away and slammed it down, twice. However, there is nothing in the record before us to indicate any disparity in size between appellant and the complainant, or that appellant had a weapon or threatened to harm or injure the complainant. There is no evidence appellant ever leaned her body across the counter toward the complainant. When viewed in a light most favorable to the verdict, this is not legally sufficient to show a reasonable belief of substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.[3] This insufficiency is especially apparent when the circumstances of appellant=s case are compared with the severe and terrifying facts from which fear of serious bodily injury has been found.[4] Appellant=s tantrum does not give rise to a reasonable belief she would inflict serious bodily injury.

The State contends there is sufficient evidence to support appellant=s conviction because property at the Big Lots store was or was reasonably believed by the complainant to be in imminent danger of damage or destruction. Just before the complainant attempted to dial 9-1-1, the evidence shows appellant hit the counter top twice. There is no evidence appellant=s strength or stature could muster the force necessary to damage a wooden Big Lots counter top. This counter was certainly in no danger, and no person could reasonably believe as much. Appellant=s outburst did not involve kicking, flailing, punching or anything else that could support a reasonable belief that Big Lots= property would be damaged. Even were we to consider appellant=s actions after the complainant decided to call 9-1-1 (slamming the telephone receiver into its cradle), this is not enough to show any property was in danger of being damaged; indeed, no property was damaged. Appellant=s legal sufficiency issue is sustained.

Because we find the evidence legally insufficient to support appellant=s conviction, we need not address her factual sufficiency point of error. The judgment is reversed and reformed to reflect an acquittal, and the prosecution ordered dismissed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed November 17, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Amendments to this code changed Aimminent danger of serious bodily injury@ to Afear of imminent assault.@ One reason behind this change is to protect family violence victims calling for emergency assistance; this change allows peace officers to intervene before a victim is injured. Sen. Comm. On Admin., Bill Analysis (engrossed ver.), Tex. H.B. 778, 78th Leg., R.S. (2003).

[2] This evidence would be sufficient to support a conviction under the current statute requiring only reasonable fear of imminent assault. Tex. Pen. Code Ann. ' 22.01 (a) (Vernon Supp. 2004B05) (defining assault to include knowingly causing physical contact with another when the actor knows or should reasonably believe the other will regard that contact as offensive); TEX. PEN. CODE ANN. ' 1.07(8) (Vernon 2003) (bodily injury required for assault results in Aphysical pain, illness, or any impairment of physical condition@); see also Hernandez v. State, 946 S.W.2d 108, 110B12 (Tex. App.CEl Paso 1997, no pet.) (analyzing the differences between Aserious bodily injury@ and Abodily injury.@).

[3] See Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983) (finding no evidence victim feared serious bodily injury where he testified if stabbed by defendant=s kitchen knife he would bleed when State did not prove size, shape, or sharpness of knife); cf. Knight v. State, 868 S.W.2d 21, 24B25 (Tex. App.CHouston [1st Dist.] 1993, pet. ref=d) (explaining where defendant reached over counter, pushed clerk=s hand back and went for money in the register jury was free to find victim feared harm during robbery when she believed she saw a gun in defendant=s waistband); McCoy v. State, 932 S.W.2d 720, 724 (Tex. App.CFort Worth 1996, pet. ref=d) (finding barely visible scar on peace officer=s mouth from assault when defendant resisted arrest insufficient to support finding of serious bodily injury).

[4] See Selvog v. State, 895 S.W.2d 879, 881 (Tex. App.CTexarkana 1995, pet. ref=d) (finding reasonable fear of serious bodily injury where defendant threatened to kill victim, threw her to ground and twisted necklace around her throat); Dacquisto v. State, 721 S.W.2d 603, 605 (Tex. App.CAmarillo 1986, pet. ref=d) (finding reasonable fear of serious bodily injury when victim was young single woman living alone thrown from bed at night by stranger, threatened and had mouth taped); Dodson v. State, 699 S.W.2d 251 (Tex. App.CTyler 1985, no pet.) (holding defendant=s acts would place reasonable person in fear of imminent serious bodily injury when victim was choked and had difficulty breathing); Jackson v. State, 700 S.W.2d 704, 707 (Tex. App.CHouston [1st Dist.] 1985, no pet.) (finding verbal threat and pillow placed over victim=s head to extent she was suffocating was sufficient to show reasonable fear of serious bodily injury); Bank v. State, 662 S.W.2d 627, 629 (Tex. App.CHouston [14th Dist.] 1983, pet. ref=d) (finding victim in fear of serious bodily injury in attempted aggravated sexual assault when defendant grabbed her and dragged her into ditch).