Wendy Dawn Holbrooks, Appellant v. The State of Texas, Appellee

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Court of Appeals of Texas, Austin.

Wendy Dawn Holbrooks, Appellant v. The State of Texas, Appellee

NO. 03–10–00141–CR

Decided: April 27, 2012

Before Chief Justice Jones, Justices Puryear and Pemberton

M E M O R A N D U M O P I N I O N

Following a jury trial, appellant Wendy Dawn Holbrooks was convicted of the offense of harassment and sentenced to 120 days' confinement in county jail, probated for 12 months, and fined $1,000.   See Tex. Penal Code Ann. § 42.07(a)(2) (West 2011).   On appeal, Holbrooks contends the trial court erred in denying her motion to suppress statements in violation of her Fourth Amendment protections and there is neither legal nor factual evidence to support the jury's verdict.   We will overrule both complaints and affirm the trial court's judgment.

BACKGROUND

The State alleged that on May 16, 2009, Holbrooks, with intent to harass, annoy, alarm, abuse, torment, or embarrass and in a manner reasonably likely to alarm, threatened Valerie Kirby by telephone to inflict bodily injury on her.   Id. On that day, Kirby was attending to a customer in the check-out line at the H.E.B. where she worked, when Holbrooks walked by and called her a “nasty bitch” in a voice loud enough for Kirby and the customer to hear.   Approximately twenty minutes later, Kirby received a call on her cell phone from an unknown or blocked sender.   She did not answer the call but listened to the following message when she went on a break:

You better watch your back.   I'm going to fuck you up, you nasty bitch, nasty ho.   How you like you a sideline ho.   You already know you are not worth a fucking bitch for anybody.   You think a married man wants you?   Not for your money.   Nasty bitch.   Bitch.  You better watch your back.   You gonna get it.   You already know you gonna get it and when you least expect it you will get it, guaranteed.   I'm going to fuck you up.

Kirby called the police to report a threatening voicemail.   Officer Pellegrino of the Cedar Park Police Department listened to the voicemail and agreed it was threatening.

Detective Pando, assigned to investigate the case, went to Holbrooks' residence with another detective and requested an interview.   He conducted the interview at Holbrooks' residence and digitally recorded it.   During the interview, Detective Pando asked Holbrooks about the incident at the H.E.B. on May 16 and she admitted she had called Kirby a “nasty bitch” at that time.   Although she initially denied leaving the voicemail message, Detective Pando testified that Holbrooks later in the interview downplayed the severity of the message by asking, “she [Kirby] was threatened by that?”   After he received two phone calls from Kirby informing him that she felt threatened by Holbrooks' continual presence at the H.E.B., Detective Pando on June 12, 2009, arrested Holbrooks for the misdemeanor offense of harassment.

The jury found Holbrooks guilty of the charged offense and assessed punishment at 120 days' confinement in county jail with a fine of $1,000.   The trial court sentenced her to 120 days' confinement, probated, and a fine of $1,000.   This appeal followed.

DISCUSSION

Motion to Suppress Statements

In a motion to suppress, Holbrooks asserted that, when she made her statements to Detective Pando at her residence on May 29, 2009, she was either under arrest or “substantially deprived of freedom by the conduct of the law enforcement officers and the circumstances surrounding the arrest or deprivation of freedom.”   Detective Pando testified at the suppression hearing, and the audiotape of Holbrooks being interviewed by the detective was provided to the trial court.   Holbrooks contended her statements were tainted by the illegal and unlawful detention in violation of her rights under the Fourth Amendment and thus should be suppressed.   The trial court denied the motion.

On appeal, a trial court's ruling on a motion to suppress is reviewed for abuse of discretion.  Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App.2010).   The trial court is given nearly complete discretion in determining historical facts, especially if those are based on an assessment of credibility and demeanor.  Id. We afford the trial court the same deference with respect to its rulings on the application of the law to questions of fact and to mixed questions of law and fact, if resolution of those questions depends on an evaluation of credibility and demeanor.  Id.

When the trial court does not make express findings of fact, we must view the evidence in the light most favorable to the court's rulings and assume the trial court made implicit findings of fact that are supported by the record.   Id.;  State v. Ross, 32 S.W.3d 853, 855–56 (Tex.Crim.App.2000).   We will sustain the trial court's decision if we conclude it is correct on any theory of law applicable to the case.  Id. The trial judge is the exclusive fact-finder at the hearing on the motion to suppress.  Crain, 315 S.W.3d at 48.

There are three discrete categories of interactions between police officers and citizens:  (1) encounters, (2) investigative detentions, and (3) arrests.   Id. at 49.   Courts look at the totality of the circumstances to determine which category an interaction falls into.  Id. An encounter occurs when a police officer approaches a citizen in a public place to ask questions and the citizen willingly listens and voluntarily answers.  Id. Because this interaction is consensual in that the citizen is free to terminate it at any time, an encounter is not considered a seizure that would trigger Fourth Amendment protection.  Id.

On the other hand, when people yield to an officer's show of authority under a reasonable belief that they are not free to leave, an investigative detention has occurred.  Id. When determining whether the interaction was an encounter or an investigative detention, the court focuses on whether the officer conveyed a message that compliance with the officer's request was required.   Id. The issue is whether a reasonable person in the citizen's position would have felt free to reject the officer's requests or otherwise terminate the encounter.  Id. Examples of circumstances that might indicate a seizure would be the threatening presence of several officers, an officer's display of a weapon, some physical touching of the citizen's person, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.  United States v. Mendenhall, 446 U.S. 544, 554 (1980);  Crain, 315 S.W.3d at 49–50.

Holbrooks argues the interaction between her and Detective Pando was an investigative detention rather than an encounter or a non-custodial interrogation as the court determined;  thus the trial court committed reversible error in admitting the evidence obtained by Detective Pando.1  The State asserts, however, that a reasonable person in Holbrooks's position would have felt free to terminate the encounter because Detective Pando's actions amounted to nothing more than mere questioning.

Detective Pando testified that, rather than at the police department, he and the other detective went to Holbrooks's residence to conduct the interview.   He noted that, when they arrived at her apartment, Holbrooks requested that she be allowed to change her clothes and she was freely allowed to do so while the detectives remained outside.   He testified that she was freely allowed to move around her apartment, to get water or whatever she needed;  that she was neither under arrest nor in handcuffs;  and neither he nor the other detective displayed their weapons during the interview.   Detective Pando also stated he told Holbrooks she was not being charged at that time.

Viewing the totality of the circumstances in the light most favorable to the court's ruling, we cannot conclude that the trial court erred in concluding that a reasonable person in Holbrooks's position would have felt free to ask the detectives to leave her home or to terminate the interaction.   Because the interaction between Detective Pando and Holbrooks was consensual in that Holbrooks was free to terminate it any time, the trial court did not err in concluding the interaction was an encounter.   We hold the trial court did not abuse its discretion in denying Holbrooks's motion to suppress statements.

Sufficiency of the Evidence

Holbrooks argues the evidence is both factually and legally insufficient to support her conviction for telephone harassment.   The Due Process Clause of the Fourteenth Amendment prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt of every element necessary to constitute the crime with which that person is charged.  Jackson v. Virginia, 443 U.S. 307, 315 (1979).   We must review the evidence in the light most favorable to the prosecution and determine whether any rational factfinder could have found the essential elements of the crime the person was convicted of beyond a reasonable doubt.  Id. at 319.   Under the Jackson v. Virginia legal-sufficiency standard, an appellate court is required to defer to a jury's credibility and weight determinations.  Brooks v. State, 323 S.W.3d 893, 894 (Tex.Crim.App.2010);  see Jackson, 443 U.S. at 319.

Holbrooks asserts the State failed to prove that she was the one who left the voicemail message on Kirby's cell phone.   We disagree.   Kirby was familiar with Holbrooks's voice and she testified she recognized Holbrooks as the caller who had left the voicemail message.   She stated that, when Holbrooks was in the H.E.B. on May 16, 2009, she called Kirby a “nasty bitch” and the voicemail message repeated that term.   Kirby further noted the voicemail message referenced “current events that were going on” between her and Holbrooks's husband, Quinton, which, she told Detective Pando, involved “some kind of cheating or an affair.” 2  Kirby also stated that, prior to this incident, she had been at Holbrooks's apartment doing Holbrooks's hair for about three hours and they talked the entire time.   Detective Pando verified that Kirby was familiar with Holbrooks's voice.   He related Kirby told him she had received earlier phone calls from Holbrooks and that she was “100 percent sure” the voice on the message was Holbrooks.   Detective Pando also testified he had interviewed Holbrooks at her residence and he recognized her voice as the one who had left the voicemail message.   Viewing the evidence in the light most favorable to the prosecution, we hold the evidence is legally sufficient to prove that Holbrooks was the person who left the voicemail message on Kirby's cell phone.

Holbrooks further argues the State failed to prove that the voicemail message was threatening.   The officer who was dispatched to the H.E.B. and who took Kirby's statement on the night of May 16, 2009, Officer Pellegrino, testified Kirby seemed apprehensive and afraid that Holbrooks would come back and attempt to “make good” on the threat she had left on Kirby's cell phone.   He noted he could tell from Kirby's behavior that she felt alarmed enough to call the police to come out and investigate.   Officer Pellegrino stated he listened to the voicemail message that night and thought the threat of bodily injury was credible and alarming—so much so that he suggested to an H.E.B. employee that he walk Kirby to her car when she got off from work about 10:30 or 11:00 that night.   Kirby testified she believed Holbrooks left the voicemail message to harass, alarm, and annoy her, and she stated she was “a little bit panicked,” worried, and upset by it.   Moreover, the voicemail message was played for the jury for it to determine whether the message was threatening.   Reviewing the evidence in the light most favorable to the State and deferring to the jury's determination of weight and credibility, we hold the evidence is legally sufficient to prove that the voicemail message left by Holbrooks on Kirby's cell phone was threatening and threatened to inflict bodily injury on Kirby.

Holbrooks also complains the evidence is factually insufficient to support her conviction for telephone harassment.   In Brooks v. State, the Court of Criminal Appeals determined that “the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.”  Brooks, 323 S.W.3d at 895.   Holbrooks's complaint is overruled.

CONCLUSION

Having held that the trial court did not abuse its discretion in denying Holbrooks's motion to suppress and that the evidence is legally sufficient to support Holbrooks's conviction for telephone harassment, we affirm the trial court's judgment.

FOOTNOTES

1.  FN1. Audiotape of Detective Pando interviewing Holbrooks.

2.  FN2. The message stated, in part, the following:  “You think a married man wants you?   Not for your money.”   Detective Pando testified Holbrooks talked “at length about some money that was owed to her [Holbrooks] from her husband” and about an affair between Kirby and Holbrooks's husband, “so she had reason for the message.”

David Puryear, Justice

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