Lead Opinion
OPINION
delivered the opinion of the Court,
Elisa Wilson appealed her telephone-harassment conviction claiming that the evidence was legally insufficient to establish that she made repeated telephone communications in a manner reasonably likely to annoy or alarm another. The court of appeals acquitted Wilson, finding that Wilson’s calls were neither repeated nor reasonably likely to harass or annoy. We hold that (1) the phrase “repeated telephone communications” does not require the communications to occur within a certain time frame in relation to one another, and (2) a facially legitimate reason for the communication does not negate per se an element of the statute. We reverse and remand.
BACKGROUND
Complainant Nicole Bailey moved into the Kelliwood Terrace subdivision in Fort Bend County in 2000. She became acquainted and frequently socialized with Wilson, her next-door neighbor. By 2009, however, their relationship had soured and eventually led to Bailey filing a criminal complaint alleging that she was the victim of Wilson’s harassment.
The information charging Wilson with harassment under Texas Penal .Code § 42.07(a)(4)
On April 6th, 2009, Wilson left a message saying that a neighbor’s dog was in her yard and that Bailey should inform the dog’s owner. On June 11th, Wilson left a message stating that debris from construction being done on Bailey’s driveway was running into a storm drain. Around the same time as this message, Wilson con
On August 30th, Wilson again confronted Bailey and Bailey’s boyfriend in a grocery store. Bailey testified that she and her boyfriend did not respond to Wilson’s shouts and immediately went to the front of the store to check out. However, Wilson followed them and continued to yell, accusing Bailey of being a prostitute and Bailey’s boyfriend of being a “pimp” and a “drug dealer.” On August 31st, the following day, Wilson left a message apologizing, but also stating that she had felt like Bailey had been attacking her. Bailey testified that she and her boyfriend had done nothing to provoke Wilson’s behavior, and that this incident and the subsequent message made her feel harassed, annoyed, and alarmed. Six days later, on September 5th, Wilson left another message, demanding that Bailey never talk to her or approach her in public again.
On December 23rd, Wilson left a message complaining that the work Bailey was doing on her driveway was in violation of deed restrictions. On February 5th, 2010, Wilson left a message stating that her security cameras had observed Bailey leaving a newspaper on Wilson’s lawn, and that Bailey should come retrieve it. Bailey testified that she had not left a newspaper on Wilson’s lawn and that the message was an attempt to get her to come onto Wilson’s property. She further testified that on the same day, Bailey and her boyfriend had encountered Wilson on the street in front of Bailey’s house and that Wilson began screaming profanities and making accusations similar to those made in the grocery store in August. Bailey stated that these events made her feel alarmed and offended.
The jury found Wilson guilty of telephone harassment, and she was sentenced to twelve months’ community supervision. Wilson appealed, arguing that the evidence did not support the jury’s verdict because calls occurring over a period of ten months did not constitute “repeated” communications as required by statute, and because her messages were not objectively annoying, offensive, embarrassing, or abusive.
“REPEATED” COMMUNICATIONS
A person commits the offense of telephone harassment if she, “with intent to
The court of appeals cited to this Court’s decision in Scott v. State
The term “repeated” is commonly understood to mean “reiterated,” “recurring,” or “frequent.” Here, we believe that the Legislature intended the phrase “repeated telephone communications” to mean “more than one telephone call in close enough proximity to properly be termed a single episode,” because it is the frequent repetition of harassing telephone calls that makes them intolerable and justifies their criminal prohibition.10
We find the Scott footnote neither controlling nor persuasive. First, Scott did not require this Court to determine whether “repeated” requires the actor’s calls to exist in “close enough proximity to properly be termed a single episode.” In that case, the issue before the Court concerned whether § 42.07(a)(4) unconstitutionally infringed upon First Amendment rights.
Second, the footnote contains no persuasive value because it lacks relevant reasoning. We take no issue with the definitions it offered from common dictionaries. However, the pronouncement of what the Legislature intended in passing § 42.07(a)(4) without any statutory interpretation is unsupportable. The Scott Court relied on a 1989 law-review article to support its definitive statement that “the Legislature intended the phrase ‘repeated telephone communications’ to mean ‘more than one, telephone call in close enough proximity to properly be termed a single episode[.]’ ”
Third, the Court’s definition of repeated itself causes confusion. Defining repeated to mean more than one call in close enough proximity to properly be termed a single episode merely begs the question and offers no definition at all. How are courts to define a single episode? The Court was unclear whether this was an inartful reference to “criminal episode” found in Chapter 8 of the Penal Code or something else entirely.
We accordingly disavow the troublesome footnote and turn to the rules of statutory construction to determine what the Legislature meant by “repeated telephone' communications.” In construing a statute, we limit our analysis to the plain meaning of the text, unless the language is ambiguous or the plain meaning leads to absurd results that the Legislature could not have possibly intended.
We must initially determine whether § 42.07(a)(4)’s undefined use of “repeated” is ambiguous. Neither party contends that it is ambiguous per se, but each suggests.the Court adopt different definitions. The State offers a number of definitions of the word “repeated,” including “said, made, done, or happening again, or again and again”
Common to all issues of potential statutory ambiguity, whether a statutory term or phrase is ambiguous depends upon the guidance sought from the statute. The statute’s use of “repeated” simply speaks in terms of the number of telephone communications, it does not attempt to define the required frequency of the communications or temporal proximity of one communication to another.
It is unquestioned that “repeated” means, at a minimum, “recurrent” action or action occurring “again.” To resolve the question presented, we need not go any further than we did in Scott, that “one telephone call will not suffice” and a conviction secured by evidence of a single communication will not stand.
In her concurrence, Judge Cochran alleges that our statutory interpretation of the term repeated invites a constitutional vagueness and overbreadth challenge to the statute.
LEGAL SUFFICIENCY OF THE EVIDENCE
Evidentiary sufficiency challenges are reviewed under the standard set forth by the United States Supreme Court in Jackson v. Virginia: “Considering all of the evidence in the light most favorable to the verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt.”
The court of appeals dismissed the pro-bativeness of Wilson’s voicemail concerning the runoff from Bailey’s driveway construction project because the call’s facially legitimate reason “negat[ed] any reasonable inference that Wilson left the message with the intent to harass Bailey, or that it was made in a manner reasonably likely to harass or annoy her.”
CONCLUSION
Because we find the evidence legally sufficient, we reverse the court of appeals’ judgment acquitting the defendant. The case is remanded to the court of appeals to address Wilson’s remaining issues.
KELLER, P.J., filed a concurring opinion in which JOHNSON, J., joined.
. Tex. Penal Code § 42.07(a)(4) (West 2010) (”A person commits an offense, if with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he:
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(4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another[.]").
. Wilson v. State, 431 S.W.3d 92, 94 (Tex.App.-Houston [1st Dist.] 2013).
. Id. at 96.
. Id. at 96 (citing Scott v. State, 322 S.W.3d 662, 669 n. 12 (Tex.Crim.App.2010)).
. Id. at 95.
. Tex. Penal Code § 42.07(a)(4) (West 2010).
. Scott, 322 S.W.3d at 662.
. Wilson, 431 S.W.3d at 95.
. Scott, 322 S.W.3d at 669.
. Id. at 669 n. 12 (citations omitted).
. Id. at 669-70.
. Id. (holding that the statute’s offenders "will have only the intent to inflict emotional distress for its own sake” and if conduct was communicative conduct, it "invades the substantial privacy interests of another (the victim) in an essentially intolerable manner.”).
.Id. at 669, n. 12 (citing M. Sean Royall, Comment, Constitutionally Regulating Telephone Harassment: An Exercise in Statutory Precision, 56 U. Chi. L.Rev. 1403, 1430 (1989)).
. Royall, supra note 12, at 1425("(g) The term 'repeated telephone calls’ means more than one call in close enough proximity to rightly be termed a single episode.”).
. See Acts of 1983, 68th Leg., R.S., ch. 411, § 1, p. 2204, 2204-2206 (effective Sept. 1, 1983).
. See Tex. Penal Code § 3.01 (West 2012) ("In this chapter, 'criminal episode’ means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances: (1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or (2) the offenses are the repeated commission of the same or similar offenses.”).
. Scott, 322 S.W.3d at 672 (Keller, P.J., dissenting).
. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.App.1991).
. Ex parte Rieck, 144 S.W.3d 510, 512 (Tex. Crim.App.2004); see also Tex. Gov't Code § 311.023 (West 2012).
. Webster’s New Twentieth Century Dictionary 1533(Unabridged 2nd ed.1983).
. Webster’s Third New International Dictionary of the English Language 1924 (Unabridged 2002).
. Scott, 322 S.W.3d at 669 n. 12 (quoting Webster’s Ninth New Collegiate Dictionary 998 (1988); 2 Oxford English Dictionary 2494 (1971)).
. Cf. Tex. Penal Code § 25.072 (West 2012) ("Repeated Violation of Certain Court Orders or Conditions of Bond in Family Violence Case. (a) A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 25.07.”).
. Scott, 322 S.W.3d at 669.
. See Tex. Penal Code § 42.07(a) (West 2012).
. Post, at 430 (Cochran, J., concurring).
. Long v. State, 931 S.W.2d 285, 295 (Tex.Crim.App.1996) (holding that this Court may only narrowly construe a statute to preserve its constitutionality when it is "readily subject” to such a construction.)
. Post, at 421-22 (Cochran, J., concurring).
. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010).
. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.App.2009) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781).
. Laster, 275 S.W.3d at 518; Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992).
. Wilson, 431 S.W.3d at 96.
. See, e.g., Merritt v. State, 368 S.W.3d 516, 526 (Tex.Crim.App.2012).
. Merritt, 368 S.W.3d at 526 (citing Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.Crim.App.2007)).
Concurrence Opinion
filed a concurring opinion
In Scott v. State, this Court upheld the telephone harassment statute* holding that the statute does not implicate the First Amendment.
I cannot quarrel with the Court’s holdings; I anticipated both in my dissent in Scott.
At the time Scott was decided, I said that “[t]he mischief this statute can create is enormous,”
. 322 S.W.3d 662, 669 (Tex.Crim.App.2010).
. Id. at 669 n. 12.
. Id. at 670.
. Id. at 673 (criticizing the Court's definition of "repeated”), id. at 676-77 ("nothing in the statute limits its application to those occasions when the actor's sole intent is to inflict emotional distress”) (Keller, P.J., dissenting).
.Id. at 676.
Concurrence Opinion
filed a concurring opinion
I agree with the majority that the evidence is sufficient to support appellant’s conviction for telephone harassment. I respectfully disagree that the term “repeated” in the telephone-harassment statute means just “more than one telephone call.”
I believe that the Legislature intended the term “repeated” to mean, just as we said in Scott, sufficiently “recurring” or “frequent” to constitute a single episode, i.e., a single criminal episode “committed
The purpose of the telephone-harassment statute is to protect an individual’s privacy rights from another person’s unwanted or offensive speech. “There is simply no right to force speech into the home of an unwilling listener.”
To avoid invalidating legislative enactments, courts may construe statutes that raise Firs.t Amendment concerns narrowly to clarify potentially vague statutory terms. That is precisely what we did in Scott in explaining that the purportedly vague term of “repeated” meant that criminal liability may be imposed only when the defendant makes multiple harassing tele
For example, a person might make various unwanted telephone calls, in-person harassing statements, derogatory social-media posts, false reports to the police, animal control, or CPS, and perhaps play practical jokes on the victim—all interspersed over a year or more—with the ultimate goal of publicly humiliating the victim, making that person lose her job, making her move, or literally driving her crazy. The telephone calls might be repeated only three or four times, but, coupled with the evidence of other types of harassment, they are sufficient to prove the person’s scheme or plan and his intent to harass the victim.
I agree with the majority that, in this case, the full history of the rocky relationship between appellant and Nicole Bailey proves that appellant made “repeated” harassing telephone calls to Ms. Bailey over the space of a year, and those six telephone calls were made pursuant to a common scheme or plan to “harass, annoy, alarm, abuse, torment, or embarrass” her neighbor.
The law does not require that the repeated calls be made within a certain time frame, as long as they are all part of the same episode, scheme, or plan. Here, the evidence clearly supports the jury’s verdict that appellant purposely set out to intimidate, harass, and alarm several of her neighbors. One of them she literally drove out of the neighborhood.
I therefore concur in the majority’s judgment, although I cannot join its opinion.
ON APPELLANT’S MOTION FOR REHEARING
Rehearing denied.
. See Majority Op., at 424 (stating that "the State may legally obtain a harassment conviction under § 42.07(a)(4)’s prohibited repeated-telephone-communications theory on the bare minimum of two telephone communications”).
. 322 S.W.3d 662, 669 n. 12 (Tex.Crim.App. 2010). In Scott, we noted:
The term “repeated” is commonly understood to mean "reiterated,” "recurring,” or "frequent.” Webster's Ninth New Collegiate Dictionary 998 (1988); 2 Oxford English Dictionary 2494 (1971). Here, we believe that the Legislature intended the phrase "repeated telephone communications” to mean "more than one telephone call in close enough proximity to properly be termed a single episode,” because it is the frequent repetition of harassing telephone calls that makes them intolerable and justifies their criminal prohibition. See M. Ro-yall, Constitutionally Regulating Telephone Harassment: An Exercise in Statutory Precision, 56 U. Chi. L.Rev. 1403, 1430 (1989) ("Prudence may justify a hands-off policy for single calls made with the intent to harass, but as harassing calls are repeated the state interest in intervening to protect ■ the recipient becomes more compelling.”).
Id. I think that our discussion in Scott, albeit dicta, was important to preserve the constitutionality of the harassment statute against a vagueness or overbreadth challenge.
. Indeed, one of the issues presented in Scott was whether the term "repeated” in the telephone harassment statute was unconstitutionally vague. See id. at 667.
. See Kramer v. Price, 712 F.2d 174, 178 (5th Cir.1983) (holding Texas telephone-harassment statute unconstitutionally vague for failing to (1) construe the terms "annoy” and "alarm” in a manner that would lessen their inherent vagueness, and (2) specify whose sensibilities must be offended).
. See Alexander v. Johnson, 217 F.Supp.2d 780, 800 (S.D.Tex.2001) (discussing, in dicta, possible constitutional deficiencies of the Texas telephone-harassment statute and the vagueness of its terms).
. See Concurring Op. at 420 (Keller, P.J., concurring) (noting that the majority’s message to the public concerning the telephone-harassment statute is, " ‘If you have any disagreements with your neighbor, and you have called her on the telephone once, do not ever call her on the telephone again, or you will be exposed to criminal liability.' ").
. Tex. Penal Code § 3.01(1).
. Scott, 322 S.W.3d at 669; see also People v. Astalis, 226 Cal.App.4th Supp. 1, 172 Cal.Rptr.3d 568, 575 (2014) ("Narrowly interpreted to preserve its constitutionality under the First Amendment, a person violates the [telephone harassment] statute only when he or she (1) makes ‘repeated’ contacts, meaning ‘recurring’ or ‘frequent’ contacts; (2) with the specific intent to ‘annoy,’ meaning intentionally engaging in ‘conduct designed to disturb, irritate, offend, injure, or at least tend to injure, another person,’ or with the specific intent to ‘harass,’ meaning engaging in ‘a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.’ ”); State v. Alexander, 76 Wash.App. 830, 888 P.2d 175, 182 (1995) (rejecting vagueness challenge to use of the word "repeatedly” in telephone-harassment statute as its definition was clear to "persons of common intelligence” and noting that "Webster’s defines ‘repeated’ as ‘said, made, or done again, or again and again.’").
. Frisby v. Schultz, 487 U.S. 474, 484-85, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (explaining that "a special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions.”).
. Under the vagueness doctrine, judicial scrutiny is most rigorous when the law in question impinges on First Amendment freedoms. See Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974) ("Where a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the [vagueness] doctrine demands a greater degree of specificity than in other contexts.”). Courts impose heightened scrutiny on statutes affecting the First Amendment because prohibitions of uncertain scope may have a "chilling effect',’ on the exercise of protected rights. As the Supreme Court stated in Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964), vague statutes cause citizens to " ‘steer far wider of the unlawful zone’ ... than if the boundaries of the forbidden areas were clearly marked,” restricting their conduct "to that which is unquestionably safe. Free speech may not be so inhibited.” Id. at 372, 84 S.Ct. 1316. Thus, the requirement of specificity is enforced with special rigor when it serves to avoid the incidental impairment of First Amendment freedoms.
. City of Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999).
. Scott, 322 S.W.3d at 669 & n. 12.
. As the State Prosecuting Attorney (SPA) notes,
Appellant’s activities extended beyond the phone messages. Appellant told several neighbors that Bailey was a prostitute, a "porn queen,” running an internet pornography ring, "Mafia-related,” and dealing drugs, “you name it.” Appellant would walk around in front of and behind Bailey’s house blowing a whistle that could be heard inside, yelling at her and calling her names. Appellant threw firecrackers in Bailey’s pool and on her car, leaving bum marks on it. Appellant called the police and said Bailey had killed herself; the officers were irritated but not surprised that the call was unfounded and, at Bailey's request, told appellant not to contact Bailey again.
SPA’s Brief at 6.
. The evidence showed that appellant ha; rassed another neighbor, Stephanie Ballard, so much that, after a peace bond was denied and a civil suit deemed insufficient, she moved and tried to keep her new address secret. But appellant tracked her down at her church and then called her on her new unlisted telephone number. The harassment began after appellant’s lawyer sent Mrs. Ballard a letter seeking damages for an "assault” that occurred when Mr. Ballard did not hug appellant at the Baileys’ Christmas party. Thereafter, someone made three false allegations against Mrs. Ballard to CPS, including one complaint that alleged Ms. Bailey ran a pornography site using Mrs. Ballard’s children. One day after Mrs. Ballard called the police because appellant was taking pictures of her children playing outside, a false report was made to Animal Control that Mrs. Ballard was letting her chihuahua/dachshund "run rabid” around the neighborhood. Both Mr. and Mrs. Ballard had their car tires punctured.
Dissenting Opinion
DISSENTING OPINION
filed an opinion dissenting to the denial of Appellant’s Motion for Rehearing in which JOHNSON and COCHRAN, J.J., joined.
I respectfully dissent from this Court’s decision to deny the motion for rehearing filed by Elisa Merrill Wilson, appellant. I would grant rehearing to address appellant’s challenge to the constitutionality of the telephone harassment statute as it has now been interpreted by this Court to permit, for the first time, a conviction based on only two telephone calls that might occur months, years, or perhaps even decades, apart.
In Scott v. State, this Court stated, “Here, we believe that the Legislature intended the phrase ‘repeated telephone communications’ to mean ‘more than one telephone call in close enough proximity to properly be termed a single episode,’ because it is the frequent repetition of harassing telephone calls that makes them intolerable and justifies-their criminal prohibition.” Scott v. State, 322 S.W.3d 662, 669 n.12 (Tex.Crim App.2010) (emphasis added). In reliance on this Court's statement of the law in Scott, and citing to an opinion by a federal district court for authority on the period of time that could be considered to be “in close enough proximity,” the court of appeals determined that the statute would not support a conviction when the defendant’s calls to the complainant were “separated by periods of months or years.” Wilson v. State, 431 S.W.3d 92, 95 (Tex.App.-Houston [1st Dist.] 2013). Now, within a relatively short period of time, this Court has changed its mind. Wilson v. State, No. PD-0755-13, 448 S.W.3d 418, 421-22, 2014 WL 4627264, at *4-5 (Tex.Crim.App. Sept. 17, 2014). In an about-face from our recent precedent in Scott, this Court now describes the applicable law by noting that “the phrase ‘repeated telephone communications’ does not require the communications to occur within a certain time frame in relation to one another.” Id. at 430. Had this Court taken its current position in Scott, then the First Court of Appeals would not have focused on the fact that appellant “left just two of the six messages over a thirty-day period” in reaching its decision that the evidence was insufficient. Wilson, 431 S.W.3d at 96.
Now that this Court, for the first time in this case, has changed its position regarding the requirements for establishing the offense of telephone harassment, appellant has filed a meritorious motion for rehearing in which she argues that this Court’s current interpretation “has created a vagueness and overbrea[d]th problem with the statute, which must now be raised by
Appellant did not have a crystal ball to look into the future and see that this Court would reinterpret the telephone harassment statute in her case. For that reason, I would grant appellant’s motion for rehearing and address both the merits of the initial appeal and her current argument that permitting a conviction for telephone calls that are not in close proximity renders the statute unconstitutionally vague and overbroad.
. The statute of limitations for telephone harassment, a class B misdemeanor, is two years. See Tex. Penal Code § 42.07(c); Tex. Code Crim. Proc. art. 12.02. So long as one call occurred within the limitations period, the evidence would likely be legally sufficient, under this Court’s current formulation of the law, for a call in 2000 and a call in 2014. See, e.g., Tita v. State, 267 S.W.3d 33, 35 n. 1 (Tex.Crim.App.2008) (noting that the limitations period for aggregated theft begins to run on the date of the last theft, i.e., the end date of a "scheme or continuing course of conduct”).