Boes v. State

675 S.W.3d 104

Barry Alan BOES II, Appellant

v.The STATE of Texas, Appellee

No. 07-22-00204-CR

Court of Appeals of Texas, Amarillo.

In Counterman v. ColoradoAugust 15, 2023

Discretionary Review Refused December 13, 2023

Kristen Jernigan, Georgetown, William Hines, Angelica Cogliano, Austin, for Appellant.

Daniel Sakaida, for Appellee.

Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

OPINION

Alex Yarbrough, Justice

By this appeal we are presented with a case of first impression to determine, among other things, whether "tagging" someone on Facebook, in today's world of social media, constitutes an intentional or knowing act of "communication." We hold it does.

Following a plea of not guilty, Appellant, Barry Alan Boes II, was convicted by a jury of violation of a protective order,¹ enhanced. The trial court imposed a sentence of five years and assessed a $10,000 fine, suspended in favor of five years’ community supervision. By four issues, he maintains (1) a juror committed misconduct by failing to disclose her bias that a defendant is guilty if he does not testify, (2) a lay witness was permitted to give opinion testimony that tagging constitutes communication and he acted intentionally, (3) the evidence is insufficient to support his conviction, and (4) his Facebook posts constitute free speech which the government had no authority to criminalize.² We affirm.

BACKGROUND

Appellant and his estranged wife, Dr. Sheila Boes, married in 1992 and divorced in 2021. In February 2020, the parties engaged in an altercation which resulted in divorce proceedings. Appellant was arrested for assault family violence. Following his arrest, a deputy, on behalf of Dr. Boes, applied to a magistrate for an emergency protective order against Appellant pursuant to article 17.292 of the Texas Code of Criminal Procedure.³ The deputy testified he applied for the order "to prevent any acts of further family violence ...." Among other conduct, the order prohibited Appellant from the following:

communicating directly with a family member of the family or household or with the person(s) protected under the Order in a threatening or harassing manner;

communicating a threat through any person to a member of the family or household or to the person(s) protected under the Order;

communicating in any manner with a person protected under the Order or a member of the family or household of a person protected under the Order, accept through the party's attorney or a person appointed by the court, because the Court finds good cause exists; and

going to or within 500 feet of the residence of the victim.

(Emphasis added).

The order was signed on February 5, 2020. In March 2020, Appellant posted on Facebook on at least three occasions and "tagged" Dr. Boes. No concerns were expressed regarding the first few posts; however, after a subsequent post, Dr. Boes's divorce attorney notified law enforcement that Appellant had been communicating with Dr. Boes by tagging her on Facebook. The posts were not threatening but Dr. Boes testified they embarrassed her.

The case was assigned to Detective Terreo on April 1, 2020. He reviewed the family violence case and the complained-of posts. He also conducted a phone interview with Appellant to discuss tagging Dr. Boes. The recorded interview was admitted into evidence. Ultimately, Appellant was convicted of violating the emergency protective order by intentionally and knowingly communicating with Dr. Boes.

Following his conviction, he filed an application, which the trial court granted, for juror information and requesting the jurors complete a survey. One of the survey questions was as follows: "What was the key piece of evidence or the deciding factor that convinced the other jurors to vote the way they did?" Juror Rodgers responded, "The defendant did not testify." She swore an affidavit averring as follows: "I believed Mr. Boes was guilty because he did not testify. I based that belief on the television show Law and Order because on that show, the defendant is guilty when he does not testify."

Appellant filed a motion for new trial alleging, among other grounds, juror Rodgers's belief constituted jury misconduct. The motion was overruled by operation of law.

We address Appellant's issues in a logical rather than sequential order and begin with issue three by which he challenges the sufficiency of the evidence because if sustained, it would afford him the greatest relief possible. See Bradleys ’ Elec. v. Cigna Lloyds Ins. Co. , 995 S.W.2d 675, 677 (Tex. 1999) ("Generally, when a party presents multiple grounds for reversal of a judgment on appeal, the appellate court should first address those points that would afford the party the greatest relief."). See also TEX. R. APP. P. 43.3.

ISSUE THREE—SUFFICIENCY OF THE EVIDENCE

The State was required to prove Appellant, during a period twelve months or less in duration, two or more times engaged in conduct which constituted an offense under section 25.07. TEX. PENAL CODE ANN. § 25.072(a). As relevant here, the statute criminalizes violations of an order in a family violence case issued pursuant to article 17.292 of the Texas Code of Criminal Procedure if the person knowingly or intentionally communicates "in any manner with the protected individual or a member of the family or household" except through the person's attorney or a person appointed by the court. § 25.07(a)(2)(C).

The only standard a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense the State is required to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Adames v. State , 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) ; Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). We consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, any rational juror could have found the essential elements of the crime beyond a reasonable doubt. Queeman v. State , 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).

We give deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jenkins v. State , 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). Each fact need not point directly and independently to the appellant's guilt, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Id.

We compare the elements of the offense as defined by a hypothetically correct jury charge to the evidence adduced at trial. Metcalf v. State , 597 S.W.3d 847, 856 (Tex. Crim. App. 2020) (citing Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) ). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial and whether properly or improperly admitted. Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the record supports conflicting inferences, we presume the fact finder resolved the conflicts in favor of the prosecution and defer to that determination. Jackson , 443 U.S. at 326, 99 S.Ct. 2781.

ANALYSIS

The State showed Appellant tagged Dr. Boes at least three times in March 2020, just one month after issuance of the protective order. Thus, the State satisfied the statutory requirement to show Appellant, at least twice in a twelve-month period, engaged in conduct which allegedly violated the protective order. The crucial inquiry to resolve is whether those Facebook tags constitute "communications" in violation of the protective order. We hold under the facts presented herein they do.⁴

"Communication" is not defined in any of the statutes applicable here. When a word in a statute is not defined, it is ordinarily given its plain meaning unless the statute clearly shows the word is used in some other sense. See Gonzalez v. State , 954 S.W.2d 98, 103 (Tex. App.—San Antonio 1997, no pet.). See also TEX. GOV'T CODE ANN. § 311.011(a) (providing words and phrases shall be read in context and construed according to the rules of grammar and common usage). "Communication" is defined as "a process by which information is exchanged between individuals through a common system of symbols, signs, or behavior"; an "exchange of information"; "information communicated"; "information transmitted or conveyed"; a verbal or written message." See merriam-webster.com/dictionary/communication.

The evidence showed neither Appellant nor Dr. Boes had "unfriended" each other. Detective Terreo sponsored State's Exhibit 8, an illustration of Facebook's Help Center. It provides an explanation of "tagging" as creating a link to a particular Facebook friend who must be selected to receive notification of a tag.

During the interview with Appellant, Detective Terreo informed him he had violated the protective order and was going to be arrested. Appellant, caught by surprise at the news, told the detective he had not intended to communicate or contact Dr. Boes through his posts. He claimed not to know the specifics of tagging. But he acknowledged every post on his Facebook page could be viewed in the timelines of his Facebook friends. After Detective Terreo explained his understanding of the process of tagging, Appellant acquiesced his postings could have been interpreted as being directed toward Dr. Boes. During cross-examination, Detective Terreo testified, without objection, he did not find Appellant's denial of communicating through Facebook tagging credible. Dr. Boes testified, without objection, she believed the posts were communications and as noted earlier—intended to embarrass and shame her. The posts admitted into evidence demonstrate Appellant's transmission or conveyance of information or a written message sufficient to constitute "communications." Conflicts in the evidence, if any,...