OPINION
Aрpellant Tholonaus Darrell Pomier raises ten issues challenging the trial court’s judgment sentencing him to twenty years’ imprisonment following his conviction for the felony offense of stalking. In issues one and two, appellant contends the trial court erred in denying his motion to quash the indictment and that his punishment was improperly enhanced. In issues three and four, he argues the evidence is legally and factually insufficient to support his conviction. In issues five and six, he claims his conviction violates the Double Jeopardy Clauses of the United States and Texas Constitutions. In his remaining issues, appellant asserts the Texas stalking statute is unconstitutional on its face and violates the prohibitions against ex post facto laws contained in the United States and Texas Constitutions. We affirm appellant’s conviction as reformed, reverse the trial court’s judgment sentencing appellant to twenty years’ imprisonment, and remand the case for a new punishment hearing.
Factual and ProceduRAl Background
Appellant and Barbara Simmons were involved in a two to three year relationship in the early 1990s. In February 1994, Simmons gave birth to a daughter fathered by appellant. Prior to the child’s birth, Simmons decided to leave appellant because he had become physically abusive. At trial, Simmons testified that appellant beat her on several occasions, including once shortly after she became pregnant. Based on these incidents of abuse, Simmons obtained a protective order in July 1993, which prevented aрpellant from communicating with or coming near her. Simmons also testified that on a separate occasion in the summer of 1993, she suffered severe injuries after appellant broke into her apartment and beat her with a crowbar. Following this incident, appellant was arrested and charged with burglary of a habitation. Appellant pleaded guilty to a reduced charge of aggravated assault and was sentenced to six years’ deferred community supervision. In October 1995, appellant was sentenced to five years’ imprisonment after violating the terms of his community supervision.
On April 25, 2007, appellant was placed in jail for nonpayment of child support following an enforcement hearing attended by appellant and Simmons. Appellant was released from jail on April 27, 2007. The following day, appellant went to Simmons’s apartment and demanded to see his daughter. Simmons testified that appellant told her he was going to hurt her and “get” her because “he was tired of spending all of his money getting out on bail and stuff like that.” Simmons called the police after appellant left her home. Officer William Ashton went to Simmons’s apartment and described Simmons as “scared” and “petrified” upon his arrival. Officer Ashton arranged for Simmons to speak with Officer Crystal Teague, a member of the police department’s domestic violence unit, that same day. Officer Teague testified Simmons “was afraid that [appellant] was going to kill her. He had come to her home. He had made a threat against her and she believed that he was going to kill her.” Appеllant was subsequently indicted for stalking Simmons.
Appellant represented himself at trial. A jury convicted appellant and, after finding an enhancement allegation true, assessed punishment at twenty years’ confinement in the Texas Department of Criminal Justice, Institutional Division. This appeal followed.
Sufficiency Of The Evidence
In his third and fourth issues, appellant argues the evidence is legally and factually insufficient to support his conviction. While this appeal was pending, the Court of Criminal Appeals held that only one standard should be used to evaluate the sufficiency of the evidence in a criminal case: legal sufficiency.
Brooks v. State,
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt.
Id.
at 898. This court does not sit as a thirteenth juror and may not substitute its judgment for that of the fact finder by reevaluating the weight and credibility of the evidence.
Id.
at 901;
Dewberry v. State,
B. Applicable Law
In order to оbtain a conviction, the State was required to prove that appellant (1) on more than one occasion and pursuant to the same scheme or course of conduct directed specifically at Simmons (2) knowingly engaged in conduct, including following Simmons, (3) that he knew or reasonably believed Simmons would regard as threatening bodily injury or death to her, (4) that caused Simmons to be placed in fear of bodily injury or death, and (5) that would cause a reasonable person to fear bodily injury or death for himself or herself. Tex. Penal Code Ann. § 42.072(a) (West 2003).
C. Sufficiency Analysis
Appellant was charged with stalking Simmons from 1993 to 2007. In order to prove the elements of the charged offense, the State presented evidence of appellant’s history оf violent and threatening behavior directed at Simmons. Simmons testified that appellant beat her on several occasions, including once while she was pregnant and again when he broke into her apartment in 1993. Simmons’s former neighbor, Willis Vallier, testified that he often heard screaming and yelling coming from Simmons’s apartment. On one occasion in 2003 or 2004, Simmons rushed into Vallier’s apartment. According to Vallier, Simmons was “hysterical, crying, [and] screaming [for] somebody to go upstairs and get her baby.” Vallier saw appellant chasing Simmons down the stairs and trying to strike her with his fist. Appellant attempted to follow Simmons into Vallier’s apartment, but Vallier prevented him from entering. Simmons also testified that appellant threatened to “hurt her” in April 2007 becаuse he had been jailed for failing to pay her child support. According to testimony from Officers Ashton and Teag-ue, Simmons appeared to be in fear for her life after appellant came to her home in April 2007.
The State also presented evidence that, after appellant was released from prison, he began continuously calling Simmons at her home and work and threatening to kick in her door. Simmons and her daughter each testified that they saw appellant drive past their home on many occasions, and Simmons stated that she often saw appellant sitting in a vehicle parked outside her home. Appellant’s behavior caused Simmons to file for multiple protective orders to prevent him from contacting or coming near her or their daughter. Simmons stated she had to keep filing for protective orders because appellant would not leave her alone and “would always come back” after an order expired. Simmons ultimately testified that each time appellant came by her home or called her, she felt “[s]eared for my safety and scared for my life” because he had beaten her “so many times all he could do was kill me next.”
Appellant presents three arguments on appeal for why the evidence is insufficient: (1) his interactions with Simmons were too “widely separated in time” to be considered evidence of any scheme or course of conduct directed at Simmons; (2) cоntradictory, inconsistent, and embellished testimony offered by Simmons shows she did not regard his conduct as threatening her with bodily injury or death; and (3) appellant could not have known or reasonably believed Simmons would regard his conduct as threatening her with bodily injury or death. We disagree, and we address each of these arguments in turn.
First, section 42.072 does not specify a time period in which the scheme or course of conduct must occur; rather, it
The testimony in this case shows that appellant physically abused and threatened to harm Simmons on multiple occasions from 1993 to 2007. During several years of that time period, appellant drove past Simmons’s home, sat in a vehicle parked outside her home, repeatedly called her at her home and work, and threatened to kiсk in her door. Viewing this evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that appellant’s conduct constituted a scheme or course of conduct.
See Hutton,
Second, appellant’s argument regarding Simmons’s testimony is essentially challenging her credibility as a witness. But as the exclusive judge of the credibility of the witnesses and the weight to give their testimony, the jury resolves conflicts or inconsistencies in such evidence.
Brooks,
Finally, the evidence is sufficient for a rational jury to conclude beyond a reasonable doubt that appellant possessed
Accordingly, the evidence is sufficient to support appellant’s conviction, and we overrulе appellant’s third and fourth issues.
Appellant’s Motion To Quash
In his first issue, appellant asserts the trial court erred by overruling his amended motion to quash the indictment. The relevant portions of the indictment read:
[O]n or about the 28th day of APRIL, A.D., 2007, ... [appellant] did then and there knowingly engage in conduct directed specifically toward Barbara Simmons that [appellant] knew or reasonably believed the said Barbara Simmons would regard as threatening bodily injury or death to the said Barbara Simmons, to wit: telephoning the said Barbara Simmons, threatening harm to the said Barbara Simmons, and sitting outside the said Barbara Simmons’ [s] house in a motor vehicle, and [appellant’s] conduct would cause a reasonable person to fear, and did cause the said Barbara Simmons to fear, bodily injury or death for the said Barbara Simmons. And it is further presented ... that on the 12th day of July, 1993, ... [appellant] did then and there knowingly engage in conduct directed specifically toward the said Barbara Simmons by committing Burglary of a Habitation against the said Barbara Simmons.
And it is further presented ... that each of the foregoing acts was committed pursuant to the same scheme or course of conduct that was directed specifically at Barbara Simmons, against the peace and dignity of the State.
Appellant argued in his amended motion to quash that the indictment was (1) “insuffi
We review a trial court’s denial of a motion to quash de novo.
Lawrence v. State,
Appellant presents two arguments for why the trial court erred by denying his motion to quash. First, he contends the indictment is defective because it omits a “clearly required element” оf the stalking offense, i.e., that appellant “followed” another person.
See
Tex. Penal Code Ann. § 42.072(a) (stating a person commits an offense by engaging in certain proscribed conduct, “including following [another] person,” which causes a desired result). Appellant has failed to preserve this argument for review. The failure to allege an element of an offense in an indictment is a defect in the substance of the indictment.
Studer v. State,
Next, appellant argues the indictment did not vest the district court with subject-matter jurisdiction over the charged offense. 1 Specifically, appellant contends the State failed to charge him with fеlony stalking because, to establish an element of the offense, the State used conduct that occurred in 1993, which was prior to the effective date of the current version of section 42.072. Thus, appellant argues, the district court did not have jurisdiction over this case.
District courts have jurisdiction over felonies, misdemeanors involving official misconduct, misdemeanors transferred to the district court pursuant to article 4.17 of the Texas Code of Criminal Procedure, and misdemeanors that are “included in the indictment.”
See
Tex.Code Crim. Proc. Ann. arts. 4.05-.06 (West 2005);
Murray v. State,
A required element of stalking is that a person knowingly engage in conduct directed specifically at another person “on more than one occasion and pursuant to the same scheme or course of conduct.” Tex. Penal Code Ann. § 42.072(a). The State alleged in the indictment that “pursuant to the same scheme or course of conduct” appellant (1) called Simmons on the telephone, (2) threatened Simmons with harm, (3) sat outside Simmons’s home in a vehicle, and (4) committed burglary of a habitation against Simmons in July 1993. Thus, viewing only the language in the indictment, the inclusion of the 1993 burglary incident to estаblish an element of stalking made the previous version of the statute applicable.
See
Act of May 26, 2001, 77th Leg., R.S., ch. 1222, § 2, 2001 Tex. Gen. Laws 2795, 2796;
Ploeger v. State,
However, even though the indictment included language that would have properly charged apрellant with a misdemeanor rather than a felony, the trial court still had jurisdiction. Presentment of a valid indictment vests the trial court with jurisdiction.
See
Tex. Const. art. V, § 12;
Teal,
Because appellant did not preserve error on the grounds he alleges on appeal as
ImpropeR Punishment
Appellant notes in his brief that he should have been indicted under a previous version of section 42.072 due to the State’s use of events occurring prior to September 1, 2001, to establish an element of the offense. As we stated above, the current version of the stalking statute makes the offense a felony, but that version does not apply here because some of the acts for which appellant was prosecuted occurred before September 1, 2001.
See Ploeger,
The maximum sentence for a Class A misdemeanor is a jail term not to exceed one year and/or a fine not to exceed $4,000. Tex. Penal Code Ann. § 12.21 (West 2003). Appellant was sentenced as though convicted of a third degree felony enhanced to a second degree felony and received twenty years’ imprisonment. As such, appellant’s sentencing for a felony offense was outside the maximum range available for a misdemeanor and therefore illegal.
See Mizell v. State,
We reform the judgment to reflect that appellant was convicted of a Class A misdemeanor. We reverse the portion of the trial court’s judgment sentencing appellant to twenty years’ imprisonment and remand for a new punishment hearing. 3
Double Jeopardy
In his fifth and sixth issues, appellant claims his constitutional rights against double jeopardy were violated. Essentially, appellant contends the State’s use of his prior conviction for aggravated assault, which arose from the 1993 burglary incident, subjected him to multiple prosecutions and punishment. The Fifth
The State asserts that appellant has waived his double jeopardy claims because he did not raise the issue at trial. Appellant relies upon
Jones v. State,
The constitutional protections against double jeopardy apply “only where the second prosecution is for the
same offense
as that for which a person has already been in legal jeopardy.”
Milner v. State,
Separate offenses constitute the same offense for purposes of double jeopardy when each element of the first offense is identical to each element of the second offense.
See id.
(citing
Blockburger v. United States,
Here, the offense of aggravated assault for which appellant previously had been convicted consists of clearly different elements than the stalking offense that is being appealed. Appellant’s prior conviction for aggravated assault required proof that he (1) committed assault and (2) caused serious bodily injury to another, including his spouse.
See
Act of May 22, 1991, 72d Leg., R.S., ch. 334, § 2, 1991 Tex. Gen. Laws 1380, 1381 (current version at Tex. Penal Code Ann. § 22.02 (West Supp.2009)). In contrast, appellant’s stalking conviction required proof that he, on more than one occasion and pursuant to the same scheme or course of conduct directed specifically at Simmons, knowingly engaged in conduct, including following Simmons, that (1) he knew or reasonably believed Simmons would regard as threatening bodily injury or death, (2) caused Simmons to be placed in fear of bodily injury or death, and (3) would cause a reasonable person to be placed in fear of bodily injury or death for himself or herself. Tex. Penal Code Ann. § 42.072(a). Both of these offenses contain separate elements and, as such, do not сonstitute the same offense for double jeopardy purposes.
See Ortega,
Because appellant’s prior conviction for aggravated assault as reduced from burglary of a habitation and his later conviction for stalking do not constitute the same offense, we conclude the record in this case does not clearly reflect a double jeopardy violation. Consequently, by failing to object at trial, appellant forfeitеd his right to raise a double jeopardy violation for the first time on appeal.
See Langs,
Constitutionality Op Section 42.072
In his seventh and eighth issues, appellant challenges the constitutionality of section 42.072. Specifically, appellant argues the statute is unconstitutional on its face because it violates the free speech guarantees of the United States and Texas Constitutions.
4
See
U.S. Const, amend. I; Tex. Const, art. I, § 8. The Court of Criminal Appeals has recently held that “a defendant may not raise for the first time on aрpeal a facial challenge to the constitutionality of a statute.”
Karenev v. State,
Ex Post Facto Violations
In his ninth and tenth issues, appellant argues the present version of section 42.072 violates the constitutional prohibitions against ex post facto laws.
5
See
U.S. Const, art. 1, § 9, cl. 3; Tex. Const, art. I, § 16. An ex post facto law is any law that (1) punishes as a crime any act that was innocent when performed, (2) inflicts greater punishment than the law attached to a criminal offense when committed, (3) deprives the accused of any defense available at the time the act was committed, or (4) alters the legal rules of evidence and requires less or different testimony than the law required at the time of the commission of the offense to convict the accused.
See Carmell v. Texas,
According to appellant, section 42.072 is an improper ex post facto law because, as applied in this case, (1) acts committed prior to the effective date of the statute were made punishable as elements of the charged offense, (2) his punishment was increased based on acts committed prior to the effective date of the statute, and (3) he was deprived of an affirmative defense which had been available under a previous version of the statute. Appellant is essentially arguing that an ex post facto violation occurred because the trial court improperly applied the current version of section 42.072 to certain acts that were committed рrior to the effective date of the statute. This argument is misplaced. The prohibition against ex post facto laws is a prohibition against legislative and not judicial action.
Ex parte Bonham,
Conclusion
We reform the judgment to reflect that appellant was convicted of a Class A misdemeanor and affirm that portion of the judgment as reformed. We reverse the portion of the trial court’s judgment sentencing appellant to twenty years’ imprisonment and remand for a new punishment hearing.
HEDGES, C.J., concurring.
Notes
. A court’s lack of subject-matter jurisdiction may be raised for the first time on appeal.
Saldano v. State,
. Prior to September 1, 2001, stalking was classified as a Class A misdemeanor. See Act of Jan. 27, 1997, 75th Leg., R.S., ch. 1, § 1, 1997 Tex. Gen. Laws 1, 1 (amended 2001).
. Because we reverse appellant’s punishment on this basis, we need not address appellant’s second issue in which he argues that his sentence was improperly enhanced to a second degree felony.
. Appellant also argues that it is unconstitutional to convict him based on conduct occurring in 1993 because the stalking statute in effect at that time was declared unconstitutional.
See Long v. State,
. The State claims appellant has failed to preserve these issues for review because he did not raise an ex post facto challenge to section 42.072 at trial. An ex post facto claim, however, may not be waived and can be raised for the first time on appeal.
See Ieppert v. State,