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Tools to fight online harassment

Texas: Statutory Criminal Law

Contents

  1. Computer-related Crimes
  2. Eavesdropping
  3. Cyberbullying
  4. Extortion
  5. Stalking
  6. Trespass
  7. Voyeurism (“Improper Photography”)
  8. Offenses against the Public Order (e.g. Harassment, Nuisance)
  9. Hate Crimes

  1. Eavesdropping

    1. Introduction

      This provision is the state equivalent of the federal Wiretap Act. The law prohibits the use of recordings obtained through eavesdropping in litigation where those recordings were “intercepted” without the consent of the victim.

    2. Text of Statute(s)

      1. TEX. PENAL CODE § 16.02 (Unlawful interception, use, or disclosure of wire, oral, or electronic communications)
        1. In this section, “computer trespasser,” “covert entry,” “communication common carrier,” “contents,” “electronic communication,” “electronic, mechanical, or other device,” “immediate life-threatening situation,” “intercept,” “investigative or law enforcement officer,” “member of a law enforcement unit specially trained to respond to and deal with life-threatening situations,” “oral communication,” “protected computer,” “readily accessible to the general public,” and “wire communication” have the meanings given those terms in Article 18.20, Code of Criminal Procedure.
        2. A person commits an offense if the person:
      2. Intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication;
      3. Intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if the person knows or has reason to know the information was obtained through the interception of a wire, oral or electronic communication in violation of this subsection;
      4. Intentionally uses or endeavors to use the contents of a wire, oral or electronic communication if the person knows or is reckless about whether the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
      5. Knowingly or intentionally effects a covert entry for the purpose of intercepting a wire, oral or electronic communication without a court order or authorization;
      6. Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device, to intercept any oral communication when the device:
        1. Is affixed to, or otherwise transmits a signal through a wire, cable, or other connection used in wire communications; or
        2. Transmits communications by radio, or interferes with the transmission of communications by radio.
        3. It is an affirmative defense to prosecution under subsection (b) that:
          1. An operator of a switchboard or an officer, employee or agent of a communication common carrier whose facilities are used in the transmission of a wire or electronic communication intercepts a communication or discloses or uses an intercepted communication in the normal course of employment while engaged in an activity that is a necessary incident to the rendition of service or activity that is a necessary incident to the rendition of service or to the prosecution of the rights or property of the carrier of the communication, unless the interception results from the communication common carrier’s use of service observing or random monitoring for purposes other than mechanical or service quality control checks;
          2. An officer, employee, or agent of a communication common carrier provides information, facilities, or technical assistance to an investigative or law enforcement officer who authorized as provided by this section to intercept a wire, oral, or electronic communication;
          3. A person acting under color of law intercepts:
            1. a wire, oral or electronic communication, if the person is a party to the communication or if one of the parties to the communication has given prior consent to the interception;
            2. A wire, oral or electronic communication, if the person is acting under the Article 18.20, Code of Criminal Procedure; or
            3. A wire or electronic communication made by a computer trespasser and transmitted to, through or from a protected computer if:
              1. The interception did not acquire a communication other than one transmitted to or from the computer trespasser;
              2. The owner of the protected computer consented to the interception of the computer trespasser’s communications on the protected computer; and
              3. Actor was lawfully engaged in an ongoing criminal investigation and the actor had reasonable suspicion to believe that the contents of the computer trespasser’s communications likely to be obtained would be material to the investigation;
          4. A person not acting under color of law intercepts a wire, oral, or electronic communication, if:
            1. The person is a party to the communication; or
            2. One of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing an unlawful act;
          5. A person acting under color of law intercepts a wire, oral, or electronic communication if:
            1. Oral or written consent for the interception is given by a magistrate before the interception;
            2. An immediate life-threatening situation exists;
            3. The person is a member of a law enforcement unit specially trained to:
              1. Respond to and deal with life-threatening situations; or
              2. Install electronic, mechanical, or other devices; and
            4. The interception ceases immediately on termination of a life threatening situation;
          6. An officer, employee, or agent of the Federal Communications Commission intercepts a communication transmitted by radio or discloses or uses an intercepted communication transmitted by radio or discloses or uses an intercepted communication in the normal course of employment and in the discharge of the monitoring responsibilities exercised by the Federal Communications Commission in the enforcement of Chapter 5, Title 47, United States Code.
          7. A person intercepts or obtains access to an electronic communication that was made through an electronic communication system that is configured to permit the communication to be readily accessible to the general public;
          8. A person intercepts radio communication, other than a cordless telephone communication that is transmitted between a cordless telephone handset and a base unit, that is transmitted:
            1. By a station for the use of the general public;
            2. To ships, aircraft, vehicles, or persons in distress;
            3. By governmental, law enforcement, civil defense, private land mobile, or public safety communications system that is readily accessible to the general public, unless the radio communication is transmitted by a law enforcement representative or from a mobile data terminal;
            4. By a station operating on an authorized frequency within the bands allocated to the amateur, citizens bank or general mobile radio services; or
          9. A person intercepts a wire or electronic communications system; the transmission of which causes harmful interference to a lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of the interference;
          10. A user of the same frequency intercepts a radio communication made through a system that uses frequencies monitored by individuals engaged in provision or the use of the system, if the communication is not scrambled or encrypted; or
          11. A provider of electronic communications service records the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider, furnishing service towards the completion of the communication, or a user of that service from fraudulent, unlawful or abusive use of the service.
        4. A person commits an offense if the person:
          1. Intentionally manufactures, assembles possesses, or sells an electronic, mechanical, or other device knowing or having reason to know that the device is designed primarily for nonconsensual interception of wire, electronic, or oral communications and that the device or a component of the device has been or will be used for an unlawful purpose;
          2. Places in a newspaper, magazine, handbill, or other publication, an advertisement of an electronic, mechanical, or other device:
            1. Knowing or having reason to know that the device is primarily designed for nonconsensual interception of wire, electronic, or oral communications;
            2. Promoting the use of the device for the purpose of nonconsensual interception of wire, electronic, or oral communications; or
            3. Knowing or having reason to know that the advertisement will promote the use of the device for the purpose of nonconsensual interception of wire, electronic, or oral communications; or
        5. It is an affirmative defense to prosecution under Subsection (d) that the manufacture, assembly, possession, or sale of an electronic, mechanical or other device that is designed primarily for the purpose of nonconsensual interception of wire, electronic, or oral communication is by:
          1. A communication common carrier or a provider of wire or electronic communications service, or an officer, agent, or employee of or a person under contract with a communication common carrier or provider acting in the normal course of the provider’s or communication carrier’s business;
          2. An officer, agent, or employee of a person under contract with, bidding on contracts with, or doing business with the United States or this state acting in the normal course of the activities of the United States or this state;
          3. A member of the Department of Public Safety who is specifically trained to install wire, oral or electronic communications intercept equipment; or
          4. A member of the local law enforcement agency that has an established unit specifically designated to respond to and deal with life-threatening situations.
          5. It is a defense to prosecution under Subsection (d)(1) that the electronic, mechanical, or other device is possessed by a person authorized to possess he device under Section 500.008, Government Code, or Section 242.103, Human Resources Code.
        6. An offense under this section is a felony of the second degree, unless the offense is committed under Subsection (d) or (g), in which event the offense is a state jail felony;
        7. A person commits an offense if, knowing that a government attorney or an investigative or law enforcement officer has been authorized or has applied for authorization to intercept wire, electronic, or oral communications, the person obstructs, impedes, prevents, gives notice to another of, or attempts to give notice to another of the interception.

    3. Cases

      Research is ongoing. There are no Texas cases that are factually relevant or analogous to WMC’s target situations at this time.

    4. Practice Pointers

      Nothing relevant at this time.

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  2. Cyberbullying

    1. Introduction

      Texas recently passed a bill to redefine cyberbullying under Chapter 37 of the Texas Education Code. The bill also mandates that each school district adopt a policy of prevention, training and report of incidents of bullying. The bill could apply where a WMC victim is a youth who is repeatedly bullied online by his or her peers.

    2. Text of Statute(s)

      1. HB 19421

        1. Section 5. Section 37.001(b), Education Code, is amended to read as follows:

          1. In this section:
            1. “Bullying” has the meaning assigned by Section 37.0832.
            2. “Harassment” means threatening to cause harm or bodily injury to another student, engaging in sexually intimidating conduct, causing physical damage to the property of another student, subjecting another student to physical confinement or restraint, or maliciously taking any action that substantially harms another student’s physical or emotional health or safety.

        2. Section 7. Subchapter C, Chapter 37, Education Code, is amended by adding Section 37.082 to read as follows:

          Sec. 37.0832. Bullying Prevention Policies and Procedures.

          1. In this section, “bullying” means, subject to Subsection (b), engaging in written or verbal expression, expression through electronic means, or physical conduct that occurs on school property, at a school-sponsored or school-related activity, or in a vehicle operated by the district and that:
            1. Has the effect or will have the effect of physically harming a student, damaging a student’s property, or placing a student in reasonable fear of harm to the student’s person or of damage to the student’s property; or
            2. Is sufficiently severe, persistent, and pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student.
          2. Conduct described by Subsection (a) is considered bullying if that conduct:
            1. Exploits an imbalance of power between the student perpetrator and the student victim through written or verbal expression or physical conduct; and
            2. Interferes with a student’s education or substantially disrupts the operation of a school.
          3. The board of trustees of each school district shall adopt a policy, including any necessary procedures, concerning bullying that:
            1. Prohibits the bullying of a student;
            2. Prohibits retaliation against any person, including a victim, a witness, or another person, who in good faith provides information concerning an incident of bullying;
            3. Establishes a procedure for providing notice of an incident of bullying to a parent or guardian of the victim and a parent or guardian of the bully within a reasonable amount of time after the incident;
            4. Establishes the actions a student should take to obtain assistance and intervention in response to bullying;
            5. Sets out the available counseling options for a student who is a victim of or a witness to bullying or who engages in bullying;
            6. Establishes procedures for reporting an incident of bullying, investigating a reported incident of bullying, and determining whether the reported incident of bullying occurred;
            7. Prohibits the imposition of a disciplinary measure on a student who, after an investigation, is found to be a victim of bullying, on the basis of that student’s use of reasonable self-defense in response to the bullying; and
            8. Requires that discipline for bullying of a student with disabilities comply with applicable requirements under federal law, including the Individuals with Disabilities Education Act (20 U.S.C. Section 1400, _et_ _seq_.)
          4. The policy and any necessary procedures adopted under Subsection (c) must be included:
            1. Annually, in the student and employee school district handbooks; and
            2. In the district improvement plan under Section 11.252.
          5. The procedure for reporting bullying established under Subsection (c) must be posted on the district’s Internet website to the extent practicable.

    3. Cases

      Research is ongoing. The bill was no applicable until the 2012-2013 school year, and there are no Texas cases that are factually relevant or analogous to WMC’s target situations at this time.

    4. Practice Pointers

      • Penalties resulting from a conviction of cyberbullying can range from a Class A Misdemeanor to a 3rd degree felony. A misdemeanor violation most likely will include fines and community service, while a felony charge may mean 2 to 10 years in prison.
      • In deriving the penalties, the fact finder considers the criminal history of the offender.
    1. The relevant portions are summarized herein, but the full text of HB 1942 is available at: http://www.legis.state.tx.us/tlodocs/82R/billtext/pdf/HB01942F.pdf (last visited Sept. 19, 2013). ↩
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  3. Extortion

    1. Introduction

      A person who publishes or threatens to publish intimate photos or videos of another with the intention of forcing the victim into conduct the victim would not have otherwise performed may be charged with extortion.

    2. Text of Statute

      1. TEX. PENAL CODE § 31.02 (Consolidation of Theft Offenses)

        Theft as defined in Section 31.03 constitutes a single offense superseding the separate offenses previously known as theft, theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or concealing embezzled property and receiving or concealing stolen property.

      2. TEX. PENAL CODE § 31.03 (Theft)1
        1. A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.
        2. Appropriation of property is unlawful if:
          1. It is without the owner’s effective consent;
          2. The property is stolen and the actor appropriates the property knowing it was stolen by another; or
          3. Property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.
        3. For purposes of Subsection (b):
          1. Evidence that the actor has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of showing knowledge or intent, and the issues of knowledge or intent are raised by the actor’s plea of not guilty;
          2. The testimony of an accomplice shall be corroborated by proof that tends to connect the actor to the crime, but the actor’s knowledge or intent may be established by the uncorroborated testimony of the accomplice; . . .
          3. Except as provided by Subsection (f), an offense under this section is:
          4. a Class C misdemeanor if the value of the property stolen is less than:
            1. $50; or
            2. $20 and the defendant obtained the property by issuing or passing a check or similar sight order in a manner described by Section 31.06;
          5. a Class B misdemeanor if:
            1. the value of the property stolen is:
              1. $50 or more but less than $500; or
              2. $20 or more but less than $500 and the defendant obtained the property by issuing or passing a check or similar sight order in a manner described by section 31.06;
            2. the value of the property stolen is less than:
              1. $50 and the defendant has previously been convicted of any grade of theft; or
              2. $20, the defendant has previously been convicted of any grade of theft, and the defendant obtained the property by issuing or passing a check or similar sight order in a manner described by Section 31.06; or
            3. the property stolen is a driver’s license, commercial driver’s license, or personal identification certificate issued by this state or another state;
          6. a Class C misdemeanor if the value of the property stolen is $500 or more but less than $1,500;
          7. a state jail felony if:
            1. the value of the property stolen is $1,500 or more but less than $20,000 or the property is less than 10 head of sheep, swine or goats, or any part thereof under the value of $20,000;
            2. regardless of value, the property is stolen from the person of another or from a human corpse or grave, including property that is a military grave marker;
            3. the property stolen is a firearm, as defined by section 46.01;
            4. the value of the property stolen is less than $1,500 and the defendant has been previously convicted two or more times of any grade of theft;
            5. the property stolen is an official ballot or official carrier envelope for an election; or
            6. the value of the property stolen is less than $20,000 and the property stolen is (i) aluminum; (ii) bronze; (iii) copper; or (iv) brass;
          8. a felony of the third degree if the value of the property stolen is $20,000 or more but less than $100,000 or the property is:
            1. cattle, horses or exotic livestock or exotic fowl as defined by Section 142.001, Agriculture Code, stolen during a single transaction, and having an aggregate value of less than $100,000; or
            2. 10 or more head of sheep, swine, or goats stolen during a single transaction and having an aggregate value of less than $100,000;
          9. A felony of the second degree if:
            1. the value of the property stolen is $100,000 or more but less than $200,000; or
            2. the value of the property stolen is less than $200,000 and the property stolen is an automated teller machine or the contents or components of an automated teller machine; or
          10. a felony of the first degree if the value of the property stolen is $200,000 or more. . . .

    3. Cases

      Research is ongoing. There are no Texas cases that are factually relevant or analogous to WMC’s target situations at this time.

    4. Practice Pointers

      Nothing relevant at this time.

    1. Because portions of Section 31.03 are irrelevant to a WMC victim, those sections of the statute have been excluded from the text set forth below. ↩
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  4. Stalking

    1. Introduction

      In situations in which a WMC victim is repeatedly harassed, the State may charge a defendant with stalking. This law may apply to situations of cyberstalking and cybercrime, both of which are becoming increasingly common.

    2. Text of Statute(s)

      1. TEX. PENAL CODE § 42.072 (Stalking)
        1. A person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct, including following the other person, that:
      2. The actor knows or reasonably believes the other person will regard as threatening:
        1. Bodily injury or death for the other person;
        2. Bodily injury or death for a member of the other person’s family or household; or
        3. That an offense will be committed against the other person’s property;
      3. Causes the other person or a member of the other person’s family or household to be placed in fear of bodily injury or death, or fear that an offense will be committed against the other person’s property; and
      4. Would cause a reasonable person to fear:
        1. Bodily injury or death for himself or herself;
        2. Bodily injury or death for a member of the person’s family or household; or
        3. That an offense will be committed against the person’s property.
        4. An offense under this section is a felony of the third degree, except that the offense is a felony of the second degree if the actor has previously been convicted under this section.
        5. In this section, “family,” “household,” and “member of a household,” have the meanings assigned by Chapter 71, Family Code.

    3. Cases

      1. Lewis v. State, 88 S.W.3d 383 (Tex. Ct. App. 2002)
        • Procedural Posture: Defendant appealed from his conviction for stalking, asserting a defense of double jeopardy and claiming that the stalking statute is unconstitutional.
        • Law: TEX. PENAL CODE § 42.072
        • Facts: Victim Susan Charles and defendant Lewis dated for two years before defendant began constantly harassing Charles by phone, leaving messages threatening to kill her, following her, faxing pornographic materials to her attention at work, and threatening to mail a video to her family supposedly depicting the two of them having sex. Defendant constantly harassed Charles by phone, leaving messages threatening to kill her, following her, faxing pornographic materials to her attention at work, and threatening to mail a videotape to her family supposedly depicting the two of them engaging in sexual intercourse. Charles felt so threatened that she changed her phone number 25 times, and removed her name from her car title, insurance, utilities and credit cards several times, but defendant always found her. After one incident during which defendant closely followed Charles through traffic in July 2000, he was arrested and charged with stalking. The indictment alleged six separate incidents occurring in November 1999, June 2000, and July 2000, as well as an allegation that he had left harassing phone messages on the voicemail for third party Robert Reed, who had acquired one of Charles’ former phone numbers. Defendant was convicted, and he appealed, asserting, among other things, that his conviction was invalid because it violated the double jeopardy clause, and because the stalking statute was unconstitutionally overbroad.
        • Outcome: The court affirmed the conviction. The court rejected defendant’s argument that double jeopardy applied because the state had cited in the indictment his repeated anonymous communications to Reed, which had also resulted in a charge of telephone harassment.1 The court explained that the fact that “some of the same evidence proved both [stalking and telephone harassment] does not constitute a double jeopardy violation because Appellant’s single act of calling Reed violated two distinct statutes and harmed two distinct victims. The proof in the instant case focused on Appellant’s actions toward Charles, not his actions toward Reed. Moreover, the telephone harassment statute required, and the information in the telephone harassment case alleged, that Appellant made repeated anonymous calls to Reed,” while the stalking evidence presented referenced only a “single telephone call placed by Appellant.”2 The court also found that the statute was constitutional because when a person reasonably believes his conduct would be regarded as “threatening bodily injury or death” he should be on notice that such conduct is prohibited, and “it cannot be said that the statute sweeps within its coverage conduct that is constitutionally protected or that the statute fails to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited.”3
        • Special Notes: Although there was no established causal connection between the telephone message left on third party Reed’s machine and Charles’ injuries, the court found that the evidence of the five other incidents clearly supported the jury’s guilty verdict.4
      2. State v. Seibert, 156 S.W.3d 32 (Tex. Ct. App. 2004)
        • Procedural Posture: State appealed from the trial court’s grant of defendant’s motion to quash the indictment alleging a Class A misdemeanor charge of stalking
        • Law: TEX. PENAL CODE § 42.072
        • Facts: Defendant was indicted for stalking. Among other things, defendant allegedly followed the victim without her knowledge and surreptitiously videotaped her as she went about her day. He later delivered some of the videotapes to her home, and she notified the police when she found them. The indictment alleged that the defendant “did . . . knowingly engage in conduct directed specifically toward . . . complainant, that the defendant knew and reasonably believed the said complainant would regard as threatening bodily injury to the said complainant, to wit: following said complainant and the defendant’s said conduct would cause a reasonable person to fear, and did cause the said complainant to fear, bodily injury for the said complainant. . . .”5 The defendant filed two motions to quash, asserting that the word “following” as used in the statute was too vague to be constitutional because “following” may encompass non-criminal activity, and that the indictment was “vague and fail[ed] to give proper notice to the defendant” of the criminal conduct alleged; the court denied both motions.6 However, four days into the trial, the court granted the defendant’s original motion to quash and dismissed the case. The state appealed.
        • Outcome: The appellate court determined that the trial court did not err by granting the defendant’s motion to quash after the trial had commenced; however, the court reversed and remanded, finding both that the stalking statute was constitutional, and that the indictment was not too vague to provide proper notice. The court relied on other courts’ constitutional analyses of the statute, explaining that under the current language of the statute, “a person who knows or reasonably believes his conduct will be regarded as threatening bodily injury or death is put on notice that his conduct is prohibited.”7 Moreover, the court determined that the indictment sufficed because it tracked the statute’s language, and alleged that “the appellee knew and reasonably believed complainant would regard such conduct as threatening bodily injury to herself.”8
        • Special Notes: The court also rejected defendant’s position that “surreptitious videotaping” cannot constitute “following” under the statute. The court explained that the argument was based on alleged evidentiary insufficiency, and therefore, was premature on a motion to quash: “In respect of a motion to quash an indictment, a trial court must test the indictment on its face, as a pleading, not by what evidence may support it. Accordingly, because the trial court dismissed the indictment, we may not test the evidence even if we decided to evaluate the record based upon appellee’s theory.”9
      3. Manuel v. State, 357 S.W.3d 66 (Tex. Ct. App. 2011)
        • Procedural Posture: Defendant appealed his conviction for stalking, and corresponding six-year prison sentence.
        • Facts: Defendant met victim C.L.L., the sister of a friend, in 2003, when she was a junior in high school. The evidence submitted showed that from then on, he called and left her messages every day both over the phone, and online, for a period of three years. C.L.L. also presented evidence that he had threatened to put her personal information on the internet, and threatened to kill her. She changed her phone number and moved numerous times during that period, but to no avail. Defendant appealed his conviction, asserting ineffective assistance of counsel and insufficient evidence, among other things.
        • Outcome: The court affirmed. Although defendant contested that the evidence introduced were communications and messages from him, and argued that they had not been authenticated, the court rejected his position. The court explained that although the identity of the caller or sender was not clear on its face, based on the review of the exhibits, and the identification of “certain characteristics that appear in multiple communications identifying different senders,” over the years, a reasonable fact finder could find that defendant sent the communications attributed to him and depicted in the challenged exhibits. Accordingly, there was sufficient evidence of stalking to uphold the conviction.
        • Special Notes: This was an extreme case of stalking in which the harassment went on for three years before it was stopped in part because the defendant successfully hid his identity behind several different personas. As per the Texas AG’s suggestion, victims of stalking would be well-served by keeping logs of all communications from an alleged stalker to ensure that he or she can introduce enough evidence to make a charge of stalking stick.
      4. McGowan v. State, 375 S.W.3d 585 (Tex. Ct. App. 2012)
        • Procedural Posture: Defendant convicted of stalking appealed his conviction, alleging that his previous telephone harassment conviction barred his prosecution for stalking under the double jeopardy clause, and that the stalking statute was unconstitutional
        • Law: TEX. PENAL CODE § 42.072
        • Facts: Defendant and his former co-worker used to work for the same company in Louisiana, and when they met, the victim continually declined his request that she consider a relationship with him. A few months later, the defendant was fired from the company after he confronted the victim and accused her of filing a sexual harassment claim against him. At that point, he started sending her letters and packages, and despite efforts by law enforcement to get him to stay away, she felt unsafe. She switched jobs and applied for a Louisiana restraining order against him, but it did not stop the defendant from calling her, and sending her emails through a social networking website—the victim never responded to his attempts to get in touch. Ultimately, the victim cancelled her membership with the social networking website to avoid any contact with the defendant. The victim then renewed the restraining order, citing to a blog entry the defendant had posted “in which appellant expressed hatred for [the victim,] a desire for [the victim] to die, and a desire to hurt the [victim] or anyone who might help her.”10 The victim’s mother also found references to the victim on another website. The defendant also often called defendant’s home asking to speak with her, and he was spotted outside her parents’ home several times before he was arrested. After a jury convicted him, he appealed, alleging that the interactions with the victim were too “widely separated in time” to constitute a course of conduct, and that there was insufficient evidence to show that the defendant knew his conduct could be perceived as threatening.
        • Outcome: The court affirmed. First, the court found that the stalking law only contemplates the presentation of evidence covering an entire course of conduct directed at the victim, not a specific number of alleged events.11 Second, the court found that there was no need for a victim to sustain an “actual injury” from a defendant’s conduct to recover.12 Accordingly, “a rational jury could have found that [defendant] knew or reasonably believed that the [victim] or her mother would view his conduct as threatening bodily injury or death.”13
        • Special Notes: Nothing relevant.

    4. Practice Pointers

      • The Texas Attorney General’s office has made information about the crime of stalking available online.14 The Texas Attorney General’s write-up that a stalker’s threats can be explicit or implicit, but stresses that they must be aimed at a specific person, and cannot simply be “general threats.”15
      • Stalking is a third degree felony unless the defendant has a prior conviction for stalking, in which case a penalty is upgraded to a second degree felony.
      • The Texas Attorney General also identifies tips for individuals being stalked, such as: (1) keep a diary with the names and addresses of witnesses, and descriptions of each incident; (2) get a protective order if you are related to the stalker by blood or marriage, or you have ever lived together or have a child together; (3) keep recorded messages to give to law enforcement; (4) take photographs of the stalker and write the time, date and place on the back of each picture; (5) keep copies of all correspondence from the stalker; and (6) tell everyone and given them a description of the stalker, so they can document each time they see him or her.16
    1. Lewis v. State, 88 S.W.3d 383, 387 (Tex. Ct. App. 2002). ↩
    2. Id. (“Because the telephone harassment of Reed is not established by proof of the same or less than all the facts required to establish the offense of stalking Charles, telephone harassment is not a lesser included offense of stalking in this case, nor is there a double jeopardy violation.”). ↩
    3. Id. at 392. ↩
    4. Id. at 391 (the court found that it need not decide whether the evidence of Appellant’s phone call to Reed was factually or legally sufficient to sustain the jury’s guilty verdict because the remaining evidence was more than sufficient to establish a conviction for stalking). ↩
    5. State v. Seibert, 156 S.W.3d 32, 34 (Tex. Ct. App. 2004). ↩
    6. Id. ↩
    7. Id. at 37. ↩
    8. Id. ↩
    9. Id. at 38. ↩
    10. McGowan v. State, 375 S.W.3d 585, 588 (Tex. Ct. App. 2012). ↩
    11. Id. at 591. ↩
    12. Id. ↩
    13. Id. ↩
    14. See Texas Attorney General, Greg Abbott, “Information on Stalking,” available at https://www.oag.state.tx.us/victims/stalking.shtml (last visited Sept. 12, 2013). ↩
    15. Id. at 2. ↩
    16. Id. ↩
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  5. Trespass

    1. Introduction

      A WMC victim could bring a claim for criminal trespass if a defendant intrudes on his or her dwelling perhaps in an effort to stalk the victim.

    2. Text of Statute

      1. TEX. PENAL CODE § 30.05 (Criminal trespass)

        1. A person commits an offense if he enters or remains on or in property, including an aircraft or other vehicle, of another without effective consent or he enters or remains in a building of another without effective consent and he:
          1. Had notice that the entry was forbidden; or
          2. Received notice to depart but failed to do so.
        2. For purposes of this section:
          1. “Entry” means the intrusion of the entire body;
          2. “Notice” means:
            1. Oral or written communication by the owner or someone with apparent authority to act for the owner;
            2. Fencing or other enclosure obviously designed to exclude intruders or to contain livestock;
            3. A sign or signs posted on the property o rat the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden;
            4. The placement of identifying purple paint marks on trees or posts on the property, provided that the marks are:
              1. Vertical lines of not less than eight inches in length and not less than one length in width;
              2. Placed so that the bottom of the mark is not less than three feet from the ground or more than five feet from the ground; and
              3. Placed at locations that are readily visible to any person approaching the property and no more than:
                1. 100 feet apart on forest land; or
                2. 1,000 feet apart on land other than forest land; or
            5. The visible presence on the property of a crop grown for human consumption that is under cultivation, in the process of being harvested, or marketable if harvested at the time of entry;
        3. “Shelter center” has the meaning assigned by Section 51.002 Human Resources Code.
        4. “Forest land” means land on which the trees are potentially valuable for timber products.
        5. “Agricultural land” has the meaning assigned by Section 75.001, Civil Practice & Remedies Code.
          1. “Superfund site” means a facility that:
            1. Is on this national priorities list established under Section 105 of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980; or
            2. Is listed on the state registry established under Section 361.181, Health and Safety Code;
            3. An electrical power generating facility, substation, switching station, electric control center, or electrical transmission or distribution facility;
            4. A water intake structure, water treatment facility, wastewater treatment plant, or pump station;
            5. A natural gas terminal or storage facility;
            6. A telecommunications central switching office;
            7. A port, railroad switching yard, trucking terminal, or other freight transportation facility;
            8. A gas processing plant, including a plant used in the processing, treatment or fractionation of natural gas; or
            9. a transmission facility used by a federally licensed radio or television station.
        6. It is a defense to prosecution under this section that the actor at the time of the offense was a fire fighter or emergency medical service personnel, as that term is defined by Section 773.003, Health & Safety Code, acting in the lawful discharge of an official duty under exigent circumstances.
        7. An offense under Subsection (e) is a class C misdemeanor unless it is committed in a habitation or unless the actor carries a deadly weapon on or about the actor’s person during the commission of the offense, in which event it is a Class A misdemeanor. An offense under Subsection (a) is a Class B misdemeanor, except that the offense is a Class A misdemeanor if:
          1. The offense is committed:
            1. In a habitation or a shelter center;
            2. On a Superfund site; or
            3. On or in a critical infrastructure facility; or
          2. The actor carries a deadly weapon on or about his person during the commission of the offense.
        8. A person commits an offense if without express content or without authorization provided by any law, whether in writing or other for, the person:
          1. Enters or remains on agricultural land of another;
          2. Is on the agricultural land and within 100 feet of the boundary of the land when apprehended; and
          3. Had notice that the entry was forbidden.
        9. It is a defense to prosecution under this section that:
          1. The basis on which entry on the property or land or in the building was forbidden is that entry with a handgun or other weapon was forbidden; and
          2. The person was carrying a concealed handgun and a license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category the person was carrying.

    3. Cases

      Research is ongoing. There are no Texas cases that are factually relevant or analogous to WMC’s target situations at this time.

    4. Practice Pointers

      Nothing relevant at this time.

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  6. Voyeurism (“Improper Photography”)

    1. Introduction

      A WMC victim could press charges for voyeurism if another intentionally invades the victim’s privacy by viewing, photographing, or recording the “intimate areas” of the victim without the victim’s knowledge or consent for the purpose of sexual gratification.

    2. Text of Statute(s)

      1. TEX. PENAL CODE § 21.15 (Improper photography or visual recording)

        1. In this section, “promote” has the meaning assigned by Section 43.21.
        2. A person commits an offense if the person:
          1. Photographs or by videotape or other electronic means visually records another:
            1. Without the other person’s consent; and
            2. With intent to arouse or gratify the sexual desire of any person; or
          2. Knowing the character and content of the photograph or recording, promotes a photograph or visual recording described by Subdivision (1).
        3. An offense under this section is a state jail felony.
        4. If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section or the other law.

    3. Cases

      1. Guerrero v. State, No. 08-05-00284-CR, 2007 WL 1454740 (Tex. Ct. App. May 17, 2007)

        • Procedural Posture: Defendant appealed his conviction for improper photography, and the accompanying sentence.
        • Law: TEX. PENAL CODE § 21.15
        • Facts: The victim, Nadiah Rodriguez, shared an apartment with the defendant from 2001 to 2003, but they were platonic. After she moved out, she retained a key to the apartment and used it from time to time when she needed to use defendant’s computer. In 2004, Rodriguez and a group of friends were watching TV at the defendant’s home, and she spent the night on the futon in the living room. When she woke early the next morning, she witnessed defendant watching a video of her undressing, and he did not know that she had seen him. When the defendant left for work, Rodriguez found the videotape, and saw that it contained several nude images of her taken without her consent. She took the video with her, and called the police, who collected the evidence, and arrested defendant. At trial, defendant argued that Rodriguez’s seizure of the video had been unlawful and that it should be suppressed, but the trial court denied the motion, and the defendant subsequently pled guilty to a Class A misdemeanor, and was sentenced to 1 year imprisonment, 2 years probation, and a $500 fine.
        • Outcome: On appeal, defendant argued that the trial court’s denial of his motion to suppress the videotape was an abuse of discretion because Rodriguez had unlawfully taken the video from his apartment. The court disagreed, finding that Rodriguez not only was an invited guest in the apartment, and that she had a right to take back a videotape that contained mages of her taken without her consent. The court stated: “Indeed, Appellant judicially confessed to visually recording Rodriguez without her consent, and with intent to arouse or gratify his sexual desire. Rodriguez testified that she took the videotape because she did not want Appellant to have the nude images of her. While Appellant may have owned the videotape on which the images were recorded, he did not have a right to possess the images of Rodriguez which he had taken without her consent. We therefore find that Rodriguez’s actions in taking the videotape were justified. . . Consequently, she did not obtain the evidence in violation of any law, and it was not subject to suppression. . .”1
        • Special Notes: The court viewed as paramount, the victim’s right to ensure that no one had access to images taken without his or her consent.2

      2. Reyes v. State, 267 S.W.3d 268 (Tex. Ct. App. 2008)

        • Procedural Posture: Defendant appealed his conviction for attempted improper photography.
        • Law: TEX. PENAL CODE § 21.15
        • Facts: Defendant was allegedly observed taking photographs with his “flip phone” by placing it under the skirt of a teenage female victim while she was shopping at a clothing store. When the victim and her mother approached defendant, he was shaking and fled, but the police detained him shortly thereafter. His phone was searched, but the police found no evidence of photographs of the victim, so they charged the defendant with a misdemeanor attempt charge. The jury convicted him, and he appealed, asserting, among other things, insufficient evidence. At trial, the jury heard eyewitness testimony from a third party explaining how she was in close proximity to the defendant and witnessed him crouch down behind the victim and try to take a photograph beneath her skirt. She also testified that defendant was startled when he realized she was observing him and that he immediately fled the store. The victim’s mother testified that Defendant uttered that he had not done anything or taken any pictures before she even asked him anything.
        • Outcome: On appeal, Defendant argued that it was legally impossible for him to have committed the crime of improper photography, and that there was insufficient evidence to support his conviction. However, the court affirmed, explaining that “[b]ased on the eyewitness testimony, the jury’s guilty verdict hardly appears to be so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, rendering the verdict factually insufficient.”3
        • Special Notes: Nothing relevant.

      3. State v. Granville, 373 S.W.3d 218 (Tex. Ct. App. 2012)

        • Procedural Posture: State appealed from the lower court’s decision to suppress evidence of photographs obtained during the search of defendant’s cell phone.
        • Law: TEX. PENAL CODE § 21.15
        • Facts: Defendant was arrested and jailed for causing a disturbance at his school. While his phone was within official custody, another officer who had been told that defendant had taken a photo of a student urinating in a urinal at school the day before without the other student’s consent, recovered the phone and searched it. The officer found a photograph of the alleged incident, which served as the basis of the defendant’s indictment for improper photography. The trial court suppressed the evidence, finding that the officer’s actions had been an unlawful search in violation of the Fourth Amendment. The state appealed.
        • Outcome: The court affirmed the finding that the State had no authority to search defendant’s property merely because State officers believed that evidence of a crime could be found on the property being searched. The court also explained that the defendant had a reasonable expectation of privacy in his phone even while he was in jail.
        • Special Notes: The court noted in dicta that as cell phones become more and more like “mini-computers,” a person’s right to privacy in that phone becomes even more important: “it is not farfetched to conclude that [from looking at a phone,] a stranger can learn much about the owner, his thought processes, family affairs, friends, religious and political beliefs, and financial matters by simply perusing through it. That such matters are intrinsically private cannot be reasonably doubted. The importance and private nature of such information has also led to the development of passwords, encrypted programs, and like security measures to prevent its disclosure.”4

      4. Ex Parte Thompson, No. 04-13-00127-CR, 2013 WL 4634608 (Tex. Ct. App. Aug. 30, 2013)

        • Procedural Posture: On appeal from lower court’s denial of defendant’s application for writ of habeas corpus alleging that he could not have been found guilty of twenty-six counts of improper photography or visual recording (the “improper photography” statute) because the statute is facially unconstitutional
        • Law: TEX. PENAL CODE § 21.15
        • Facts: Defendant was arrested and charged with improper photography on July 16, 2011. The arrest occurred at Sea World of Texas after authorities said concerned parents reported him swimming with and taking photographs of children ages 3 to 11. When approached by park security, officials said he attempted to delete the photographs from his camera before it was seized, and the evidence revealed 73 pictures of children in swimsuits—mostly targeting the children’s breast and buttocks. He was indicted by a grand jury on 26 counts of violating the Texas statute. He has not been tried or convicted and on January 22, 2013, he filed a pre-trial application for writ of habeas corpus claiming that the statute was facially unconstitutional because it impermissibly regulated the content of his speech and was both overly broad and vague in violation of his rights under the U.S. and Texas Constitutions. The court reviewed his claim de novo.
        • Outcome: The court reversed and remanded, holding the statute unconstitutional under the First Amendment to the U.S. Constitution and Article I, Section 8 of the Texas Constitution. Although a previous appeals court had upheld the same statute as “not a regulation of speech or expression, but rather of the intent of the photographer,”5 the court disagreed, holding that the statute improperly restricted “protected speech by regulating an individual’s right to photograph and to have certain thoughts,” and that the “intent requirement, i.e., to have the ‘intent to arouse or gratify the sexual desire of any person,’ does not render the speech or conduct regulated ‘noncommunicative.’”6 The court also found that the plain language of the statute was content-neutral because it limited speech by “imposing time, place and manner restrictions” unrelated to the content.7 Although the court found the government had an important interest in protecting citizens from covert photography that may invade their expectations of privacy, the court found that the rule was too broad because it “would potentially penalize some protected speech,” and would be too dependent on law enforcement officers’ subjective evaluation of the photographer’s intent.8
        • Special Notes: The court held that the statute was void on its face, and it reversed the trial court, and remanded the case to trial to enter an order dismissing prosecution. This decision was just handed down, which means it may come under review by the Texas Criminal Appeals court,9 and/or may open up debate in the legislature.

    4. Practice Pointers

      • The legislature passed the statute in an effort to protect victims from covert photography, and it resembles the laws against “upskirting” that have been passed in other states.
      • The statute was recently voided by the Fourth Court of Appeals,10 accordingly, victims should make sure to research the state of the law in their jurisdiction and Texas generally to see whether it is still a viable crime, and/or whether it has been rewritten to account for the appeals court’s concerns.
    1. Guerrero v. State, No. 08-05-00284-CR, 2007 WL 1454740, at *8 (Tex. Ct. App. May 17, 2007). ↩
    2. Id. ↩
    3. Reyes v. State, 267 S.W.3d 268, 276 (Tex. Ct. App. 2008). ↩
    4. State v. Granville, 373 S.W.3d 218, 223 (Tex. Ct. App. 2012). ↩
    5. See Ex Parte Nyawba, 366 S.W.3d 719, 725 (Tex. Crim. App. 2011). ↩
    6. Ex Parte Thompson, No. 04-13-00127-CR, 2013 WL 4634608, at *3 (Tex. Ct. App. Aug. 30, 2013) ↩
    7. Id. at *4. ↩
    8. Id. at *6 (“innocent photographers run the risk of being charged with violating the statute because the government is attempting to regulate thought, a freedom protected by the First Amendment”). ↩
    9. In a recent article about the ruling in Thompson, 2013 WL 464608, at *3, the district attorney prosecuting the case stated that she planned to appeal the court’s ruling to the Texas Court of Criminal appeals. “Fourth Court of Appeals declares Texas improper photography law unconstitutional,” KSAT.com, available at http://www.ksat.com/news/fourth-court-of-appeals-declares-texas-improper-photography-law-unconstitutional/-/478452/21721360/-/11iwlt7/-/index.html (last visited Sept. 5, 2013). ↩
    10. See Thompson, 2013 WL 4634608, at *6. ↩
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  7. Offenses against the Public Order (e.g. Harassment, Nuisance)

    1. Introduction

      In situations in which a WMC victim is harassed (either “electronically” or otherwise), the State may charge a defendant with harassing if the defendant threatens the victim with physical injury or the victim reasonably believes that the defendant will physically harm him or her. It may be appropriate in situations of cyberstalking and cybercrime, which are specifically covered in subsection (a)(1).

    2. Text of Statute(s)

      1. TEX. PENAL CODE § 42.07 (Harassment)
        1. A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment or embarrass another, he:
          1. Initiates communication by telephone, in writing, or by electronic communication, and in the course of the communication, makes a comment, request, suggestion or proposal, that is obscene;
          2. Threatens, by telephone, in writing, or by electronic communication, 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 household, or his property;
          3. Conveys 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 household, or his property;
          4. Causes the telephone of another to ring repeatedly or make repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another;
          5. Makes a telephone call and intentionally fails to hang up or disengage the connection;
          6. Knowingly permits a telephone under the person’s control to be used by another to commit an offense under this section; or
          7. Sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.
        2. In this section:
          1. “Electronic communication” means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes:
            1. A communication initiated by electronic mail, instant message, network call, or facsimile machine; and
            2. A communication made to a pager.
          2. “Family” and “household” have the meaning assigned by Chapter 71, Family Code.
          3. “Obscene” 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.
        3. An offense under this section is a Class B misdemeanor, except that the offense is a Class A misdemeanor if the actor has previously been convicted under this section.

    3. Cases

      1. Karenev v. State, No. 2-05-425-CR, 2009 WL 3078825 (Tex. Ct. App. Sept. 24, 2009)
        • Procedural Posture: Defendant appealed from his conviction for harassment arising from sending his ex-wife emails in the context of the parties’ divorce.
        • Law: TEX. PENAL CODE § 42.07.
        • Facts: The parties, Nikolai and Elena Karenev were divorcing. Elena testified that after Nikolai moved out, he began leaving between ten and twenty voice mail messages per day threatening her safety and her professional reputation. He also sent her five emails in the course of their divorce proceedings insulting her and threatening her in Bulgarian. The jury found him guilty of harassment, and he appealed.
        • Outcome: The court affirmed the conviction for harassment finding that the jury could reasonably have found that defendant intended to annoy the plaintiff when he sent the emails. The emails were contentious and angry.1
        • Special Notes: The court noted that “[i]t is not sufficient that the evidence show that Elena felt harassed, annoyed, alarmed, abused, tormented or embarrassed when she received the repeated emails; the evidence must also show beyond a reasonable doubt that Appellant sent repeated emails with the specific intent to harass, annoy, alarm, abuse, torment or embarrass” Elena.2
      2. Scott v. State, 322 S.W.3d 662 (Tex. Crim. Ct. App. 2010)
        • Procedural Posture: Defendant appealed from his conviction for one count of harassment.
        • Law: TEX. PENAL CODE § 42.07
        • Facts: Defendant was charged with violating Section 42.07 for making harassing phone calls to his ex-wife. He appealed the conviction asserting that the statute was unconstitutionally overbroad. The court of appeals reversed, and the state appealed.
        • Outcome: The court reversed the decision of the court of appeals, and affirmed the conviction explaining that the statute was not unconstitutional because “it is not susceptible of application to communicative conduct that is protected by the First Amendment…[It] is directed only at persons who, with the specific intent to inflict emotional distress, repeatedly use the telephone to invade another person’s personal privacy and do so in a manner reasonably likely to inflict emotional distress.”3 Persons violating this statute will therefore “not have an intent to engage in the legitimate communication of ideas, opinions or information; they will have only the intent to inflict emotional distress for its own sake.”4
        • Special Notes: Nothing relevant.

      3. Lee v. State, No. 06-10-00176-CR, 2011 WL 193094 (Tex. Ct. App. Jan. 14, 2011)

        • Procedural Posture: Defendant appealed her conviction for the misdemeanor offense of harassment arising from her repeated telephonic messages to her ex-boyfriend and his family.
        • Law: TEX. PENAL CODE § 42.07
        • Facts: Defendant Angela Lee dated victim William Chunn for seven years on and off. After they broke up in 2009, he began dating another woman, Teresa Bobbitt, who he eventually married. Teresa and Chunn shared a cell phone, and Lee sent them hundreds of text messages and left multiple voicemail messages for Chunn declaring her love for him, and expressing her anger at his relationship with Bobbitt. She was arrested and convicted of misdemeanor harassment and sentenced to a $250 fine and 6 months of community supervision. She appealed, asserting that the statute is unconstitutionally vague, that she had not intended to annoy Chunn and Teresa, and that there was insufficient evidence of harassment to sustain the conviction.

        • Outcome: The court affirmed. The court rejected Lee’s argument that the statute was vague because it allowed a conviction where the evidence offered did not show that the phone receiving the voicemail was in the possession of William Chunn or his wife Teresa:

          “There is nothing in the proscribed behavior criminalized by this statute which requires the accused t o know which or whose telephone actually received the offending calls or (also in this case) messages.”5 The court also rejected Lee’s argument that the statute is vague because it does not define “repeated,” explaining that there was sufficient evidence introduced of four or five calls and messages to qualify as “repeated,” as it is used in the statute.6 Finally, the court also found sufficient evidence to show that she had intended to at the very least, annoy Chunn and Teresa: “Viewed in totality, a rational finder of fact could conclude that Lee had the intent to harass, annoy, alarm, torment, or embarrass Chunn (even if the content of the calls, when contact was made, consisted of professions of love and pleas for forgiveness), and that she made repeated telephone communications reasonably likely to harass, alarm, annoy, abuse, torment, embarrass, or offend Chunn.” 7

        • Special Notes: Nothing relevant.

      4. Norwood v. State, No. 05-10-00261-CR, 2011 WL 1206787 (Tex. Ct. App. Feb. 23, 2011)
        • Procedural Posture: Defendant appealed from the trial court’s decision finding him guilty of harassment.
        • Law: TEX. PENAL CODE § 42.07
        • Facts: Defendant and his wife had started an unsuccessful executive airplane catering company together, and when they divorced, he obtained a $235,000 judgment against her. He began calling emailing and texting her, and though at first she did not think her ex-husband posed a threat, she eventually contacted a lawyer who sent him a cease and desist letter. He subsequently began sending her inappropriate emails with picture and video attachments, and she filed charges against him. Following his conviction, he appealed, asserting that the statute was unconstitutionally vague and that there was insufficient evidence of harassment.
        • Outcome: The court affirmed holding that the statute was constitutional, and that there was sufficient evidence showing that the defendant had sent his ex-wife obscene emails knowing that she was upset in order to annoy, harass, and threaten her.8
        • Special Notes: Nothing relevant.

    4. Practice Pointers

      The concurrence noted that the statute was not vague or overbroad because the issue of whether the hearer is alarmed is not truly the issue: “Harassment is in the mind of the speaker, not the hearer. The speaker who intends to harass, annoy, alarm, torment, embarrass, or offend another has himself defined, for that purpose, both the applicable term and the word ‘repeatedly.’ They are not vague or over-broad for the speaker; they are clearly and precisely known. There is no ambiguity of intent in the mind of the speaker, and intent undergirds the offense.”9

    1. Karenev, 2009 WL 3078825, at *4. ↩
    2. Id. at *2. ↩
    3. cott v. State, 322 S.W.3d 662, 669-70 (Tex. Crim. Ct. App. 2010). ↩
    4. Id. at 670. ↩
    5. Lee v. State, No. 06-10-00176-CR, 2011 WL 193094, at *2 (Tex. Ct. App. Jan. 14, 2011). ↩
    6. Id. at *4. ↩
    7. Id. at *5. ↩
    8. Norwood v. State, No. 05-10-00261-CR, 2011 WL 1206787, at *3 (Tex. Ct. App. Feb. 23, 2011). ↩
    9. Id. at 671 (J. Johnson, concurring). ↩
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  8. Hate Crimes

    1. Introduction

      Where a victim is specifically targeted because of his or her race, color, religion, ancestry, nationality, gender, sexual orientation, or mental, physical or sensory handicaps, this statute may provide additional relief.

    2. Text of Statute(s)

      1. TEX. PENAL CODE § 12.47 (Penalty if Offense Committed Because of Bias or Prejudice)
        1. If an affirmative finding under Article 42.014, Code of Criminal Procedure, is made in the trial of an offense other than a first degree felony or a Class A misdemeanor, the punishment for the offense is increased to the punishment prescribed for the next highest category of offense. If the offense is a Class A misdemeanor, the minimum term of confinement for the offense is increased to 180 days. This section does not apply to the trial of an offense of injury to a disabled individual under § 22.04, if the affirmative finding in the case under Article 42.014, Code of Criminal Procedure, shows that the defendant intentionally selected the victim because the victim was disabled.
        2. The attorney general, if requested to do so by a prosecuting attorney, may assist the prosecuting attorney in the investigation of an offense committed because of bias or prejudice. The attorney general shall designate one individual in the division of the attorney general’s office that assists in this prosecution of criminal cases to coordinate responses to requests made under this subsection.
      2. TEX. CODE OF CRIM. PRO. ART. 42.014 (Finding that Offense was Committed Because of Bias or Prejudice)
        1. In the trial of an offense under Title 5, Penal Code, or Section 28.02, 28.03, or 28.08, Penal Code, the judge shall make an affirmative finding of fact and enter the affirmative finding in the judgment of the case if at the guilt or innocence phase of the trial, the judge or the jury, whichever is the trier of fact, determines beyond a reasonable doubt that the defendant intentionally selected the person against whom the offense was committed or intentionally selected property damaged or affected as a result of the offense because of the defendant’s bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference.
        2. The sentencing judge may, as a condition of punishment, require attendance in an educational program to further tolerance and acceptance of others.
        3. In the article, “sexual preference” has the following meaning only: a preference for heterosexuality, homosexuality or bisexuality.

    3. Cases

      Research is ongoing. There are no Texas cases that are factually relevant or analogous to WMC’s target situations at this time.

    4. Practice Pointers

      Nothing relevant at this time.

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