Are you or someone you know facing harassment charges in Texas? A conviction can have long lasting consequences that you will want to avoid, including the potential of fines and jail time. Even if you avoid jail time, the crime of harassment can carry a probation sentence of up to 2 years with a requirement for community service, classes to be completed, reporting to a probation officer monthly, monthly fees to probation and other requirements.
Harassment can take several different forms under Texas law. Texas Penal Code §42.07 states that an individual commits the offense of harassment when he or she acts with intent to harass, embarrass, torment, alarm, abuse or annoy someone else.
That’s a pretty broad definition. In fact, it’s possible that you may have engaged in behavior that qualifies as harassment without realizing it. With this post, we hope to explain the act of harassment a bit better so that people can understand what not do to – or why they may have been charged.
When examining whether someone’s actions constitute the crime of harassment, we must first identify the action itself – was it obscene? Was it threatening? Here’s an overview of the types of acts that are punishable as harassment in Texas.
The act of initiating communication, whether electronically, in writing, or by telephone, and making a proposal, suggestion, comment, or request that is obscene.
What is obscene? It is a very subjective inquiry and opinions can vary. Because this is a fact issue, a jury will have to make a determination if the behavior is truly obscene. In addition to the State of Texas having the burden to prove obscenity beyond a reasonable doubt, the jury must also be unanimous in their verdict.
The act of threatening, whether electronically, in writing, or by telephone, in a way that causes another person to be reasonably alarmed, that acts of bodily injury or felonies will be committed against the person, the person’s family or household, or the person’s property.
What is a threatening communication? Was the “threat” made as a joke? A prank? Was the context of the communication clear that it was not meant as a legitimate threat? If any doubt can be established regarding whether the communication was threatening, the State of Texas will have difficulty proving the case beyond a reasonable doubt and you may be able to have your harassment case dismissed.
The act of knowingly conveying a false report that someone else has suffered serious bodily injury or death in a way that causes the recipient of the report to be reasonably alarmed.
The key issue here is “knowingly” conveying a false report. Was the communication conveyed accidentally? There is a requirement by the State of Texas to establish criminal intent as part of the charge. If any evidence can be established that the communication was accidental, your harassment charge may be able to be dismissed.
Harassment by Telephone
The act of causing a telephone to ring repeatedly, making anonymous phone calls, or intentionally failing to hang up with the intent to harass, embarrass, torment, alarm, abuse, or annoy someone else under reasonable expectations. The crime of harassment by telephone can also involve knowingly permitting another person to use the phone under the original person’s control to commit any offense of harassment by telephone.
One of the biggest problems the State of Texas may have in proving the crime of harassment by telephone beyond a reasonable doubt is to authenticate who was actually making the phone calls. Was the call made from a land line or a cell phone? Was the caller using their personal cell phone or another person’s phone? Even if the district attorney’s office issues a subpoena for the phone records, they must still prove beyond a reasonable doubt that the message was sent from the person on trial. Failure to do so will result in a verdict of not guilty.
Electronic Harassment – RECENT UPDATE TO THE LAW
Electronic Harassment is the act of sending repeat electronic communications in a way that causes reasonable likelihood that another person will feel harassed, embarrassed, tormented, alarmed, abused, annoyed, or offended. The most common forms of electronic or digital harassment involve text messages, email messages, social media message, social media posts or repeated messages through digital media.
Until Texas Harassment Law recently changed, a person could be charged with criminal harassment for sending repeated text messages, emails or social media messages with the intent to annoy or alarm another person. However, recent developments in the law have limited a police officer’s use of this form of criminal harassment.
Recent Texas Appellate Court decisions have ruled that electronic communications are protected by free speech provisions under the U.S. and Texas Constitutions. The United States and Texas Constitutions have 1st Amendment protections regarding free speech.
Specifically, if someone emails you, texts you or sends you social media messages, you can block their phone number, email or unfriend them through social media. As such, messages being sent electronically are deemed to be protected speech unless they are being sent as a threat.
What is threatening electronic communications? Once again, the context of the electronic message is critical. A message that may soundly vaguely threatening may not meet the standard if the threat is not specific, directed to particular person or limited to a particular time or place. Each “threatening” email, text or message must be analyzed thoroughly by your criminal defense attorney to determine if the facts line up with Texas law.
Additionally, Texas courts have questioned the subjective nature of the inquiry as to whether a text, email, or social media message is “annoying” or “alarming.”
What does it mean to be annoyed? Could be “annoyed” by a single text from someone? Does that make sense with the spirt of the law? Texas courts have recently become very uncomfortable with this subjective inquiry so they have limited its application with digital communications.
For instance, should every business that spams you with emails be charged with criminal harassment? Should text messages you receive from someone reminding you to opt-in to their program be treated as an act of criminal harassment? Currently, Texas courts have limited the application of electronic or digital harassment to specific threats.
What To Do If A Detective Is Calling You
What should you do if a detective is calling you asking for an interview regarding a harassment investigation? Should you speak to him? You didn’t do anything wrong! Could you prove your innocence?
Unfortunately, deciding to meet with a detective to attempt to tell your side of the story can many times lead to devastating consequences. Usually, when a detective is at the stage of his investigation where he is calling you about the charge, he has already made up his mind about what has happened. At this point, he has interviewed the alleged victim, collected any “evidence” the alleged victim has provided him and put together a report outlining his opinion.
Choosing to answer the detective’s questions may not go like you would expect. Many people think they will get a chance to tell their side of the story and the detective will listen. Unfortunately, it is much more likely that the detective will interrogate you with direct questions making it appear that he already has proof that your guilty. What if you respond by being nervous? What if you get so nervous that you fumble over your words and do not give a clear answer? The point is that the detective can write down anything he wants regarding your response and twist it to appear it is a sign of your guilt. If you admit to having sent a text message or making a phone call, that is all he may need to obtain a warrant for your arrest.
It is critical that you obtain the assistance of an experienced criminal defense attorney prior to speaking with a detective about a criminal harassment investigation. Your criminal attorney can call the detective and find out what is going on. Anything your criminal lawyer says can NOT be used against you in court because it is deemed to be hearsay and inadmissible. However, anything you say can and will be used against you in court.
Punishments for Harassment Charges in Texas
According to the Texas Penal Code, harassment is a Class B misdemeanor punishable by up to 180 days in the county jail and up to a $2,000 fine. If someone has previous harassment charges, this may result in increased consequences of up to one year in the county jail and up to a $4,000 fine.
Defenses Strategies For Harassment Charges in Texas
If you or a loved one has been charged with harassment, it is critical that you find an experienced criminal lawyer that is able to prepare a proactive criminal defense strategy to protect you from the Government. A few examples of proven defense strategies to harassment charges include:
- No Intent – this defense is based upon showing that the communication between client and alleged victim was not intended to annoy or alarm. For example, an ex-husband sends repeated messages to his ex-wife for the purpose of determining when she is picking up their son from basketball practice. In this situation, when you look behind the text messages and determine the context of the communication, it is determined that it was sent not to alarm or annoy his ex-wife; but instead, it was sent to inform her to protect their son from being left alone at a sports complex.It is critical that your criminal defense attorney present communication before and after the messages used by the State of Texas to show the context of what was being said and intended in the communication.
- Not Annoying Or Alarming – was the communication being used by the prosecutor to substantiate a charge of criminal harassment actually “annoying” or “alarming?” In other words, this question is very subjective and someone may believe a comment is alarming but another reasonable person would disagree.It is important to remember that the State of Texas must prove the case beyond a reasonable doubt. The more doubt there is regarding the meaning of the communication, the more flexibility your attorney has to negotiate a possible dismissal of your criminal harassment case.
- The “Harassment” Was Based Upon Electronic/Digital Communication – was the communication being relied upon by the prosecutor solely based upon digital or electronic communication? If so, your criminal attorney should aggressively demand a dismissal of your harassment charges based upon the communication being protected by the 1st Amendment of the U.S. Constitution.Remember, all electronic communication is protected under free speech provisions, unless it is specifically a threat against an individual. It is critical that your attorney is aware of this change in the law and takes action to protect you from being wrongfully charged with criminal harassment.
Charges of Harassment are Serious – Seek Legal Assistance to Fight Back
A conviction for harassment in Texas will be on your criminal record for as long as you live. You may find it difficult to get a job, apply for credit, or secure housing with a conviction of harassment. A single misguided act could haunt you for decades.
Because of this, it’s important to get in touch someone who can help you. You need the knowledge and experience of a Texas harassment defense attorney who has successfully handled cases like yours. At The Fulgham Law Firm, we have years of experience navigating harassment cases and ensuring our clients are able to resolve their case in a manner that gives them the opportunity to have the harassment arrest and charges expunged from their criminal record.
At Fulgham Law Firm P.C., we will work hard to help you avoid jail time and steep fines. Contact us today for a free, no obligation consultation, and we’ll help you understand your charges and craft the strongest possible defense. Don’t wait to contact a knowledgeable attorney who will work to protect your rights.
About the Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.